ECHR judgment of November 8, 2016 in the case of the Hungarian Helsinki Committee Against Hungary (Magyar Helsinki Bizottsag v. Hungary) "( application No. 18030/11).
In 2011, the applicant's public organization was assisted in preparing the application. Subsequently, the application was communicated to Hungary.
In the case, the complaint on refusal to inform the public organization carrying out the survey, the names of the defenders by appointment and the number of their respective appointments was successfully considered. The case involved a violation of the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant, a non-governmental organization, was established in 1989 to monitor the implementation of international human rights standards in Hungary and to provide legal representation, education and training. In the context of the study on the effectiveness of the public protection system, the applicant organization requested various police departments to inform it of the names of the public defenders nominated by them and the number of their respective appointments. Of the police departments, 17 responded to the request, five more reported the requested information after a successful appeal in court. However, the applicant's claims to two other police departments, which refused to provide the requested information, were rejected. The applicant organization complained under Article 10 of the Convention that a judicial refusal to disclose the required information constituted a violation of its right to access information.
ISSUES OF LAW
Concerning compliance with Article 10 of the Convention. (a) Applicability and availability of intervention. The Convention should be interpreted in the light of the rules established in articles 31 to 33 of the Vienna Convention on the Law of Treaties of 1969, and the object and purpose of the Convention as a whole. The European Court can not ignore the general international or legislative standards of the European countries, and the consensus arising from the specialized international instruments and practices of the participating States may also be an applicable argument. Finally, in interpreting the Convention, it is also possible to resort to auxiliary means of interpretation, including travaux preparatoires. In the light of these principles, the Court must consider whether the right of access to information held by a State can be regarded as falling within the scope of Article 10 of the Convention, despite the fact that such a right does not follow directly from the text of this provision; if it can, then to what extent. The domestic legislation of most States Parties recognizes the law-based right of access to information and there is a broad consensus on the need to recognize the individual right of access to information at the disposal of the state to allow the public to study and form opinions on any matter of common interest, The functioning of public authorities in a democratic society. A high degree of consensus was also formed at the international level. In particular, the right to seek information is directly guaranteed by Article 19 of the International Covenant on Civil and Political Rights of 1966, and the existence of the right of access to information has been repeatedly confirmed by the UN Human Rights Committee. In addition, Article 42 of the Charter of Fundamental Rights of the European Union guarantees citizens access to certain documents. The adoption of the Council of Europe Convention on Access to Official Documents, even though it has only been ratified by seven participating States, indicates a continuing evolution with respect to the recognition of the State's obligation to provide access to public information. In view of these factors, the Court does not consider that it is deprived of the opportunity to interpret article 10, paragraph 1, of the Convention as including the right of access to information. The European Court recognized that in the interests of legal certainty, predictability and equality before the law, it should not depart without good reason from the precedents established in previous cases, but since the Convention is primarily a system for the protection of human rights, the changing conditions must also be taken into account in the participating States, and the Court must respond to the evolving convergence in terms of the standards that should be achieved. The right to information can not be interpreted as implying positive obligations on the state to collect and disseminate information on its own initiative, and Article 10 of the Convention does not grant a person the right to access information held by a public authority and does not oblige the respondent State to disclose such information to a person . However, this right or duty may arise, firstly, if the disclosure of information is provided for by a judicial decision that has entered into force and, secondly, in circumstances where access to information was necessary for the person to exercise his or her right to freedom of expression , in particular the right to freedom to receive and impart information, and when denial of access constituted an interference with that right. The question whether the denial of access to information constituted an interference with the freedom of expression of the applicant, and if so, to what extent, should be considered in each individual case and in the light of his specific circumstances, including (i) the purpose of requesting information, (ii ) the nature of the information sought, (iii) the role of the applicant and (iv) whether the information was prepared and available. The Court is convinced that the applicant organization in the present case wanted to exercise the right to disseminate information on the issue of general interest and sought access to information for this purpose and that information was necessary for the exercise of its right to freedom of expression. Information about the appointment of public defenders undoubtedly represented a general interest in its nature. There is no reason to doubt that this study contained information that the applicant organization intended to communicate to the public and the right to receive it was available to the public and the Court is convinced that in order to fulfill this task, the applicant organization needed access to the information requested. Finally, the information was prepared and available. Thus, there was an interference with the law protected under Article 10 of the Convention, which was applicable in the case. See also the Leander v. Sweden judgment of 26 March 1987, application no. 9248/81.
Travaux preparatoires (fr.) - preparatory materials.
(b) Whether the interference was justified. The European Court recognized that the interference was provided for by law and that the restriction of the applicant organization's right to freedom of expression pursued the legitimate aim of protecting the rights of others. The request for information, although composed of personal data, concerned primarily the implementation of professional activities in the context of public hearings. In this sense, the professional activities of public defenders could not be regarded as a matter relating to private life. The required information did not affect the actions or decisions of public defenders in connection with the performance of their tasks as legal representatives or consultations with their clients, and the authorities of the respondent State did not demonstrate that disclosure of the requested information could adversely affect the exercise by public defenders of their right to respect for private life in the meaning of Article 8 of the Convention. There is 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 relied on by the Government of the respondent State with reference to Article 8 of the Convention were not of such a nature and extent that they could require the initiation of the application of this provision of the Convention and its enactment in comparison with the law of the applicant organization protected by Article 10 of the Convention . The topic of the study concerned the effectiveness of the system of public defenders and was closely related to the right to a fair trial, a fundamental right in the legislation of Hungary and the right of priority under the Convention. Any criticism or proposed improvement of the service, so directly related to the rights to a fair trial, should be considered as a matter of legitimate universal concern. The Court is convinced that the applicant organization was going to participate in the discussion on the issue of general interest, and the refusal to satisfy her request effectively undermined her contribution to the public debate on the issue of general interest. Although the information requested concerned personal information, it did not include information that was not publicly available. The Court concluded that, despite the discretion of the State, there was no reasonable relationship of proportionality between the measure complained of and the legitimate aim pursued.
The case involved violation of the requirements of Article 10 of the Convention (adopted by 15 votes "for" with two - "against").
In the application of Article 41 of the Convention. The Court awarded the applicant organization 215 euros in respect of pecuniary damage, no claim for compensation for non-pecuniary damage was made.
See also the Leander v. Sweden judgment of 26 March 1987, application no. 9248/81, Gaskin v. The United Kingdom On 7 July 1989, application No. 10454/83, Guerra and Others v. Italy, judgment of 19 February 1998, application no. 14967/89, Judgment of the Grand Chamber of the European Court of Human Rights in the case of Roche v. the United Kingdom of 19 October 2005, application no. 32555/96, the European Court of Justice in the case of Associates I of the South Bohemian Mothers Against the Czech Republic "(Sdruzeni Jihoceske Matky v. Czech Republic) of 10 July 2006, application No. 19101/03, and the Court of Human Rights of the Youth Initiative for Human Rights v. Serbia) of 25 June 2013, application No. 48135/06.