The Commissioner for Information of Public Importance and Personal Data Protection has filed with the Supreme Court of Cassation an Initiative to ensure Uniform Application of Law by Courts and Equality of Parties in Infringement Proceedings conducted in accordance with the Law on Misdemeanours (LM) due to violations of the Law on Free Access to Information of Public Importance (LFAIPI).

The Commissioner filed the initiative because magistrates' courts in practice tend to interpret differently the right of a person whose freedom of information request was not honoured by a public authority within the statutory period to file a petition for infringement proceedings.

Some magistrates' courts acknowledge the requesters' standing to sue and act pursuant to their petitions for infringement proceedings without imposing any further conditions. However, other magistrates' courts deny this right, do not act pursuant to such petitions and do not initiate infringement proceedings or initiate such proceedings only on condition that the applicant first exhausted his/her right of appeal in administrative proceedings and the competent inspectorate did not previously file a petition for such proceedings.

The Commissioner himself is of the opinion that ignoring of freedom of information requests is a violation of a right guaranteed by the Constitution and neither the LFAIPI nor the LM provide grounds for making the entitlement of a harmed party to initiate an infringement proceeding conditional upon the exhaustion of avenues of appeal or any other specific condition.

Apart from being a matter of general importance, this issue also has specific relevance. During the several years in which the Ministries in charge (Justice and Public Administration) filed no petitions for infringement proceedings against those who breached the law, the possibility and the right to do so afforded to requesters as the harmed parties was in fact the only semblance of a mechanism for ensuring accountability for violations of the law. As efforts of the competent Ministry to initiate proceedings and hold those responsible for such violations to account remain modest to this date, the right of the harmed parties to do this is certainly not a matter that should be treated lightly.

In any case, regardless whether this specific legal opinion is upheld or not, there is no denying that the widely differing practices of courts are inadmissible, as such state of affairs leads directly to inequality of parties in proceedings and undermines legal certainty and rule of law.

For this reason, the Commissioner believes that the Supreme Court of Cassation should act on its powers provided for by Article 31 of the Law on Organisation of Courts to ensure that magistrates' courts follow a uniform judicial practice.