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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and access to information
LAPSI Conference, KULeuven
7-8 October 2010
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
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
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)
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…
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
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
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?
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.
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
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
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
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
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”.
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”.
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
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
Refusal of access is in casu violation of Art. 10
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.
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".
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
European Convention on Access to Official Documents, 27 November 2008
But still somewhat weak instrument and only few ratifications
Council of Europe Convention on Access to Official DocumentsCETS 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 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
Find the 7 mistakes / Zoek de zeven fouten!
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(..)
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
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
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
How will the ECtHR deal with future applications ?
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 !
Perspectives for investigative journalists Europe WOB : http://www.wobbing.eu/
and NGOs : Access info Europe
with links http://www.access-info.org/