Ghent University (Belgium) & Copenhagen University (Denmark) & Member of the Flemish Regulator for the Media
In April 2009, the European Court of Human Rights delivered an important judgment in which it recognised the right of access to official documents. The Court made it clear that, when public bodies hold information that is needed for public debate, the refusal to provide documents in this matter to those who are requesting access, is a violation of the right to freedom of expression and information guaranteed under Article 10 of the Convention. The case concerns a request by the Társaság a Szabadságjogokért (Hungarian Civil Liberties Union - TASZ) to Hungary’s Constitutional Court to disclose a parliamentarian's complaint questioning the legality of new criminal legislation concerning drug-related offences. The Constitutional Court refused to release the information. As the Court found that the applicant was involved in the legitimate gathering of information on a matter of public importance and that the Constitutional Court's monopoly of information amounted to a form of censorship, it concluded that the interference with the applicant's rights was a violation of Article 10 of the Convention.
The European Court’s judgment refers to the “censorial power of an information monopoly”, when public bodies refuse to release information needed by the media or civil society organisations to perform their “watchdog” function. The Court refers to its consistent case law, in which it has recognised that the public has a right to receive information of general interest and that the most careful scrutiny on the part of the Court is called for when the measures taken by the national authority are capable of discouraging the participation of the press, one of society's “watchdogs”, in the public debate on matters of legitimate public concern, including measures which merely make access to information more cumbersome. It is also underlined that the law cannot allow arbitrary restrictions, which may become a form of indirect censorship should the authorities create obstacles to the gathering of information, this by itself being an essential preparatory step in journalism and inherently a protected part of press freedom. The Court emphasised once more that the function of the press, including the creation of forums of public debate, is not limited to the media or professional journalists. Indeed, in the present case, the preparation of the forum of public debate was conducted by a non-governmental organisation. The Court recognises the important contribution of civil society to the discussion of public affairs and categorised the applicant association, which is involved in human rights litigation, as a social “watchdog”. The Court is of the opinion that, in these circumstances, the applicant’s activities warrant similar Convention protection to that afforded to the press. Furthermore, given that the applicant's intention was to impart to the public the information gathered from the constitutional complaint in question, and thereby to contribute to the public debate concerning legislation on drug-related offences, its right to impart information was clearly impaired.
It should be emphasised that the European Court’s judgment is obviously a further step in the direction of the recognition by the Court of a right of access to public documents under Article 10 of the Convention, although the Court is still reluctant to affirm this explicitly. The Court recalls that “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 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”, referring to its decision in the case of Sdruženi Jihočeské Matky v. Czech Republic (ECHR 10 July 2006, Appl. No. 19101/03). The Court notes that “the right to 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”. In this case, the information sought by the applicant was ready and available and did not require the collection of any data by the Government. Therefore, the Court considers that the State had an obligation not to impede the flow of information sought by the applicant.
|■||Judgment by the European Court of Human Rights (Second Section), case of Társaság a Szabadságjogokért v. Hungary, Application no. 37374/05 of 14 April 2009||EN|