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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.

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Art. 10 ECHR

and access to information

Dirk Voorhoof

LAPSI Conference, KULeuven

7-8 October 2010

art 10 echr foe and foi
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 foi1
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
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 foi1
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
Article 10 ECHR

Right to express, impart, receiveNo 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
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
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 anddisseminate information of its own motion”.Other cases, other circumstances?On request/of its own motion?

pressure on case law of ecthr
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 enforceablesubjective 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
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
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
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
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 UnionConcerned 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 hungary1
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 hungary2
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 hungary3
TASZ v. Hungary


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 NGOCivil society’s important contribution to the discussion of public affairs

tasz v hungary4
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 hungary5
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
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 20091
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 20092
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
Convention No. 205

European Convention on Access to Official Documents, 27 November 2008

But still somewhat weak instrument and only few ratifications

convention no 2051
Convention No. 205

Council of Europe Convention on Access to Official DocumentsCETS No. 205 Treaty open for signature by the member States and for accession by non-member States and by any international organisationTromsø 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
Convention No. 205 / WOB-Verdrag

Find the 7 mistakes / Zoek de zeven fouten!

  • Niet van toepassing op officiële documenten waarover wetgevende en rechterlijke overheden beschikkenNot 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 2052
Convention No. 205

4. Geen (voldoende) waarborgen igv (stilzwijgende) weigering van toegang tot officiële documenten of aanrekenen van overdreven kostenNo sufficientguarantees in case of refusal/too high costs

5. Geen effectieve beroepsinstantie met de nodige onafhankelijkheid die bevel kan opleggen document vrij te gevenNo effectiveremedy, noguarantee independent decisionmaking body

convention no 2053
Convention No. 205

6. Geen voldoende waarborgen voor behandeling binnen korte termijnenNo 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 betreftUncertenties, lack of clarity regarding some optional restrictions

art 10 echr and foi added value
Art. 10 ECHR and FOI : added value!
  • Scrutinyby the ECtHR, esp. onmatters of public interest
  • SupervisionbyECtHR, reduction of nationalsovereignty + binding character member states

3. General approachECtHRArticle 10 ECHR +aim is to nourish public debate/expression/re-use…

4. Ad hoc balancing (no absolute restrictions!) / ‘contextualisation’ e.g. protectionpersonal data/privacy

5. Restrictions to benarrowlyinterpreted / pertinentlymotivated

6. Refusal of accessonlyifnecessary in democratic society

7. Proceduralguarantees (jo. 13 ECHR), effective remedies

art 10 echr and foi added value1
Art. 10 ECHR and FOI : added value ?
  • Slow adaptation in member states Convention nr. 205
  • 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 foi2
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
Info & practice

Perspectives for investigative journalists Europe WOB :

and NGOs : Access info Europe

with links