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”

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/