Art. 10 ECHR
and access to information
Dirk Voorhoof
LAPSI Conference, KULeuven
7-8 October 2010
Art. 10 ECHR, FOE and FOI
ECtHR : Democracy needs transparancy and public debate
+ the right of the public to be properly informed about
matters of public interest.
Classic approach: state authorities are not allowed to
interfere in FOE, unless restrictions/sanctions
- provided by law
- legitimate aim
- necessary in democratic society
Art. 10 ECHR, FOE and FOI
No interferences by state authorities
= abstention, no state intervention
ECtHR: “duty of the media” to inform the public on matters of
interest for society
Horizontal effect: positive obligations for State to ensure
right to express, forward and receive information or ideas
= to protect fundamental rights in relations between
individuals / private parties
Art. 10 ECHR and FOI?
But what if it is the state that holds information that could
be of interest for society / matter of public interest?
Is there a ‘positive’ obligation of member states to supply
relevant information and/or to give access to official
documents regarding matters of public interest?
Yes, according to national law, EU-law…
+ art. 42 EU-Charter (.. EU-institutions)
Art. 10 ECHR and FOI
Is a right of access to public documents
guaranteed by Article 10 ECHR?
- Scrutiny by the ECtHR
esp. matters of public interest
+ reduction of national sovereignty
- Ad hoc balancing (no absolute restrictions)
- Restrictions to be narrowly interpreted
+ pertinently motivated
- Refusal only if necessary in democratic society
- Including procedural guarantees (jo. 13 ECHR)
= effective remedies
Court has been very reluctant, until recently…
Article 10 ECHR
Right to express, impart, receive
No right to seek information
(cf Art. 19 ICPPR)
ECtHR: right to receive information includes no duty of
authorities to actively provide information to the public
neither to provide information/documents on request of
citizens
ECtHR: Art. 10 not applicable
Leander v. Sweden, 1987
Gaskin v. Sweden, 1989 (personal files, art. 8)
Guerra v. Italy, 1998 (health information, art. 8)
Sîrbu v. Moldova, 2004 (military information, intelligence
not under duty FOI art. 10 ECHR)
Roche v. UK, 2005 (art. 8)
Grand Chamber saw no reason not to apply established
jurisprudence
Case law of ECtHR
ECtHR was of the opinion that “freedom to receive
information (…) basically prohibits a government
from restricting a person from receiving information
that others wish or may be willing to impart to him.
That freedom cannot be construed as imposing on a
State, in circumstances such as those of the
present case, positive obligations to collect and
disseminate information of its own motion”.
Other cases, other circumstances?
On request/of its own motion?
Pressure on case law of ECtHR
On 21 February 2002, the Committee of Ministers of the
Council of Europe, i.a. referring to Article 10 ECHR,
adopted a Recommendation on access to official
documents, recognizing both an enforceable subjective
right of the citizen to have access, on request, to official
documents and a positive obligation, a duty of the
authorities, on their own initiative, to provide the public with
relevant information in matters of public interest.
More developments
May 2005, the Council of Europe Ministers’ Deputies
instructed the Steering Committee for Human Rights
(CDDH) to prepare a legally binding instrument on
access to official documents
IACHR: 19 September 2006, Claude Reyes v. Chile
NGOs in Europe advocating for FOI under Art. 10 ECHR
Sdruzeni Jihoceske Matky v. Czech Republic
Decision ECtHR 10 July 2006, inadmissible
Request for documents and plans regarding construction of
nuclear power station
Article 10 is applicable,
although in casu refusal was
“necessary in democratic society”
Protection of industrial secrets and risk of terrorist attacks
Technical plans not related to issue of public interests
Glas Nadezhda EOOD and Elenkov v. Bulgaria
ECtHR 11 October 2007, refusal of broadcasting licence
Violation of Art. 10 because no information was given by
the authorities why a broadcasting licence was refused +
lack of motivation by authorities
Hence, refusal to give access to the information how the
decision was made, is an argument to consider the
interference with the applicant’s right as a violation of
Art. 10 ECHR
TASZ v. Hungary
Decision ECtHR 13 November 2008, admissible
ECtHR 14 April 2009, violation of Article 10 !
Társaság a Szabadságjogokért
Request for document by Hungarian Civil Liberties Union
Concerned demand for access to a document
containing the complaint by a MP in a case pending
before Constitutional Court regarding modifications in
Criminal Code on drug-related crimes
TASZ v. Hungary
ECtHR reiterates its classical approach
“Article 10 does not (..) confer on the individual a right
of access to a register containing information on his
personal position, nor does it embody an obligation
on the Government to impart such information to the
individual”
and it emphasizes that
“it is difficult to derive from the Convention a general
right of access to administrative data and
documents”.
TASZ v. Hungary
But the judgment also states that
“the Court has recently advanced towards a
broader interpretation of the notion of “freedom
to receive information” (..) and thereby towards
the recognition of a right of access to
information”.
TASZ v. Hungary
Therefore
ECtHR: Article 10 is applicable!
Gathering information is an essential preparatory step in
journalism
Forum for public debate is not limited to media or
professional journalists, in casu NGO
Civil society’s important contribution to the discussion of
public affairs
TASZ v. Hungary
Creating monopoly of important information amounts to
form of censorship
“censorial power of an information monopoly”
NGO’s right to impart information to public was impaired
State had an obligation not to impede the flow of
information sought by TASZ
TASZ v. Hungary
Refusal of access is in casu violation of Art. 10
-
Broader interpretation of freedom to receive information
Elimination of barriers to exercise of press functions where such
barriers exist solely because of an information monopoly held b public
authorities
Information was ready and available
No privacy reasons in this context: public person, public debate,
matter of public interest
Public watchdog role of media
Obstacles created in order to hinder access to information of public
interest may discourage those working in the media or related fields
from pursuing such matters + ability to provide accurate and reliable
information
Kenedi v. Hungary, 26 May 2009
Case concerns the attempt of a historian, Mr. János Kenedi,
to have access to certain documents deposited at the
Ministry of the Interior regarding the functioning of the
State Security Services in Hungary in the 1960s.
Mr Kenedi’s, who earlier published several books on the
functioning of secret services in totalitarian regimes,
complained to the ECtHR about the Hungarian authorities’
protracted reluctance to enforce a court order granting him
unrestricted access to these documents. For several years
Kenedi tried to get access to relevant information from the
Ministry, but to no avail.
Kenedi v. Hungary, 26 May 2009
Refusal of access is in casu violation of Art. 10
(+ breach of Art. 6 and 13 ECHR)
Court reiterated that "access to original documentary
sources for legitimate historical research was an essential
element of the exercise of the applicant's right to freedom
of expression".
Kenedi v. Hungary, 26 May 2009
Refusal of access is in casu violation of Art. 10
(+ breach of Art. 6 and 13 ECHR)
Again the Court does not formulate a general right of access
to (official) documents. The Court is however of the
opinion that the access was necessary for the applicant to
accomplish the publication of a historical study. The Court
noted that the intended publication fell within the
applicant’s freedom of expression as guaranteed by
Article 10 ECHR
Convention No. 205
European Convention on Access to Official Documents, 27
November 2008
https://wcd.coe.int/ViewDoc.jsp?id=1377737&Site=COE
&BackColor
But still somewhat weak instrument and only few
ratifications
Convention No. 205
Council of Europe Convention on Access to Official Documents
CETS No. 205
http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT
=205&CM=8&DF=02/10/2010&CL=ENG
Treaty open for signature by the member States and for accession
by non-member States and by any international organisation
Tromsø 18/6/2009
Entering into force, condition: 10 Ratifications.
Status as of 7/10/2010:
- 3 Ratifications : Hungary, Norway, Sweden
- 13 Signatures : + Belgium, B&H, Estonia, Finland, Georgia,
Lithuania, Montenegro, Serbia, Slovenia, Fyrom
Convention No. 205 / WOB-Verdrag
Find the 7 mistakes / Zoek de zeven fouten!
1. Niet van toepassing op officiële documenten waarover
wetgevende en rechterlijke overheden beschikken
Not applicable on legislature and judicial authorities
2. Geen OVB in geval van officiële documenten waarover
private organisaties beschikken maar die betrekking hebben
op uitoefening van publieke taak (‘outsourcing’)
Not applicable in case of ‘outsourcing’
3. Geen minimum verplichting ivm (pro)actieve OVB
(organisatie, financieel, etc.)
No minimun obligation on pro-active access
(..)
Convention No. 205
4. Geen (voldoende) waarborgen igv (stilzwijgende)
weigering van toegang tot officiële documenten of
aanrekenen van overdreven kosten
No sufficient guarantees in case of refusal/too high costs
5. Geen effectieve beroepsinstantie met de nodige
onafhankelijkheid die bevel kan opleggen document vrij
te geven
No effective remedy, no guarantee independent decision making body
Convention No. 205
6. Geen voldoende waarborgen voor behandeling binnen
korte termijnen
No guarantees for decision within short delay
7. Onduidelijkheden in sommige beperkingen, zoals ivm
commerciële belangen en te verregaande mogelijkheid
dat lidstaten bijkomende beperkingen of
uitzonderingsgronden toevoegen voor wat hen betreft
Uncertenties, lack of clarity regarding some optional restrictions
Art. 10 ECHR and FOI : added value!
1. Scrutiny by the ECtHR, esp. on matters of public interest
2. Supervision by ECtHR, reduction of national sovereignty
+ binding character member states
3. General approach ECtHR Article 10 ECHR +
aim is to nourish public debate/expression/re-use…
4.
Ad hoc balancing (no absolute restrictions!) / ‘contextualisation’
e.g. protection personal data/privacy
5.
Restrictions to be narrowly interpreted / pertinently motivated
6.
Refusal of access only if necessary in democratic society
7.
Procedural guarantees (jo. 13 ECHR), effective remedies
Art. 10 ECHR and FOI : added value ?
1. Slow adaptation in member states Convention nr. 205
2. Margin of appreciation regarding restrictions
(TASZ and Kenedi was not on restrictions,
were manifest unjustified denials of access
Sdruzeni .. Matky v. Czech Republic: margin member state
How will the ECtHR deal
with future applications ?
Art. 10 ECHR and FOI
Since the Convention
is first and foremost a system for
the protection of human rights,
the Court must interpret and
apply it in a manner which
renders its rights
practical and effective,
not theoretical and illusory !
Info & practice
Perspectives for investigative journalists Europe
WOB : http://www.wobbing.eu/
and NGOs : Access info Europe
with links http://www.access-info.org/