Information Note on the Court’s case-law 201

November 2016

Magyar Helsinki Bizottság v. Hungary [GC] - 18030/11

Judgment 8.11.2016 [GC]

Article 10

Article 10-1

Freedom to receive information

Authorities’ refusal to provide an NGO conducting a survey with the names of public defenders and the number of their appointments: violation

Facts – The applicant NGO was founded in 1989 with the task of monitoring the implementation of international human-rights standards in Hungary and providing related legal representation, education and training. In the context of a survey regarding the efficiency of the system of public defence, the applicant requested from various police departments the names of the public defenders retained by them and the number of their respective appointments. Seventeen police departments complied with the request; a further five disclosed the requested information following a successful legal challenge. However, the applicant was unsuccessful in its action against a further two police departments which refused to disclose the requested information. The applicant complained under Article 10 that the domestic courts’ refusal to order the disclosure of the information sought amounted to a breach of its right to access to information.

Law – Article 10

(a) Applicability and the existence of an interference – The Convention had to be interpreted in the light of the rules provided for in Articles 31 to 33 of the Vienna Convention on the Law of Treaties 1969 and of the object and purpose of the Convention read as a whole. The Court could not disregard common international or domestic-law standards of European States and the consensus emerging from specialised international instruments and the practice of Contracting States could also constitute a relevant consideration. Finally, when interpreting the Convention, recourse could also be had to supplementary means of interpretation including the travaux préparatoires .

In the light of those principles the Court had to consider whether and to what extent a right of access to State-held information could be viewed as falling within the scope of Article 10, notwithstanding the fact that such a right was not immediately apparent from the text of that provision.

National legislation in the majority of Contracting States recognised a statutory right of access to information and a broad consensus existed on the need to recognise an individual right of access to State-held information so as to enable the public to scrutinise and form an opinion on any matter of public interest, including on the manner of functioning of public authorities in a democratic society. A high degree of consensus had also emerged at the international level. In particular, the right to seek information was expressly guaranteed by Article 19 of the International Covenant on Civil and Political Rights 1966 and the existence of a right of access to information had been confirmed by the United Nations Human Rights Committee on a number of occasions. In addition, Article 42 of the European Union Charter of Fundamental Rights guaranteed citizens a right of access to certain documents. The adoption of the Council of Europe Convention on Access to Official Documents , even though it had only been ratified by seven member States, denoted a continuous evolution towards the recognition of the State’s obligation to provide access to public information.

Taking those factors into account the Court did not consider that it was prevented from interpreting Article 10 § 1 as including a right of access to information. The Court recognised that in the interest of legal certainty, foreseeability and equality before the law, it should not depart, without good reason, from precedents laid down in previous cases* but, since the Convention was first and foremost a system for the protection of human rights, regard had also to be had to the changing conditions within Contracting States and the Court had to respond to any evolving convergence as to the standards to be achieved.

The right to receive information could not be constructed as imposing positive obligations on a State to collect and disseminate information of its own motion and Article 10 did not confer on the individual a right of access to information held by a public authority or oblige the Government to impart such information to the individual. However, such a right or obligation could arise, firstly, where disclosure of the information had been imposed by a judicial order which had gained legal force and, secondly, in circumstances where access to the information was instrumental for the individual’s exercise of his or her right to freedom of expression, in particular the freedom to receive and impart information and where its denial constituted an interference with that right.

Whether and to what extent the denial of access to information constituted an interference with an applicant’s freedom of expression had to be assessed in each individual case and in the light of its particular circumstances including; (i) the purpose of the information request; (ii) the nature of the information sought; (iii) the role of the applicant; and (iv) whether the information was ready and available. The Court was satisfied that the applicant in the present case wished to exercise the right to impart information on a matter of public interest and had sought access to information to that end and that the information was necessary for the exercise of its right to freedom of expression. The information on the appointment of public defenders was of an eminently public-interest nature. There was no reason to doubt that the survey in question contained information which the applicant undertook to impart to the public and which the public had a right to receive and the Court was satisfied that it was necessary for the applicant’s fulfilment of that task to have access to the requested information. Lastly, the information was ready and available.

There had therefore been an interference with a right protected under Article 10, which was applicable in the case.

(b) Whether the interference was justified – The Court accepted that the interference had been prescribed by law and that the restriction on the applicant’s freedom of expression pursued the legitimate aim of protecting the rights of others. The request for data, although consisting of personal data, related predominantly to the conduct of professional activities in the context of public proceedings. In that sense, public defenders’ professional activities could not be considered to be a private matter. The information sought did not relate to the public defender’s actions or decisions in connection with the carrying out of their tasks as legal representatives or consultations with their clients and the Government had not demonstrated that the disclosure of the information requested could have affected the public defenders’ enjoyment of their right to respect for private life within the meaning of Article 8 of the Convention. There was no reason to assume that information about the names of public defenders and their appointments could not be known to the public through other means. The interests invoked by the Government with reference to Article 8 were not of such a nature and degree as could warrant engaging the application of that provision and bringing it into play in a balancing exercise against the applicant’s right protected by Article 10.

The subject matter of the survey concerned the efficiency of the public defenders system and was closely related to the right to a fair hearing, a fundamental right in Hungarian law and a right of paramount importance under the Convention. Any criticism or suggested improvement to a service so directly connected to fair-trial rights had to be seen as a subject of legitimate public concerns. The Court was satisfied that the applicant intended to contribute to a debate on a matter of public interest and the refusal to grant the request had effectively impaired its contribution to a public debate on a matter of general interest. Although the information requested concerned personal data, it did not involve information outside the public domain. The Court concluded that notwithstanding the State’s margin of appreciation, there had not been a reasonable relationship of proportionality between the measure complained of and the legitimate aim pursued.

Conclusion : violation (fifteen votes to two).

Article 41: EUR 215 in respect of pecuniary damage; no claim made in respect of non-pecuniary damage.

(See also Leander v. Sweden , 9248/81 , 26 March 1987; Gaskin v. the United Kingdom , 10454/83 , 7 July 1989; Guerra and Others v. Italy , 14967/89 , 19 February 1998; Roche v. the United Kingdom [GC], 32555/96, 19 October 2005, Information Note 79 ; Sdružení Jihočeské Matky v. the Czech Republic (dec.), 19101/03 , 10 July 2006; and Youth Initiative for Human Rights v. Serbia , 48135/06, 25 June 2013, Information Note 164 )

* See Leander v. Sweden , 9248/81 , 26 March 1987.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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