Transcript Art. 10 ECHR and access to information
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”
P
rotection of industrial secrets and risk of terrorist attacks
T
echnical 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 !