A landmark decision by the European Court of Human Rights

The Hungarian Civil Liberties Union (HCLU) has won a case against Hungary regarding freedom of information. For the first time, the right of access to state information, provided for by Article 10 of the European Convention on Human Rights, has been officially recognised, which was reflected in today’s ruling by the European Court of Human Rights. The Strasbourg court acknowledged that withholding information necessary for participation in public debate on issues of state importance could violate freedom of expression.

This ECtHR decision was the final chord in the battle that the HCLU has been waging against the Hungarian Constitutional Court for nearly five years. In 2004, the Constitutional Court rejected the HCLU’s request for access to a complaint filed by a member of parliament who demanded that certain drug-related crimes be excluded from the Criminal Code. Since the HCLU works actively in the field of drug policy, particularly in harm reduction, the NGO wanted to form an opinion on the details of the complaint before a decision was made on it. The Constitutional Court refused the HCLU’s request, explaining that the complaint was under consideration by the court and could not be provided to outsiders without the author’s consent. The Constitutional Court never appealed to the member of parliament. In response, the HCLU filed a lawsuit with the Supreme Court of Hungary, which dismissed the claim because it was recognised that the complaint contained “personal data.”

In accordance with Article 10 of the European Convention on Human Rights, freedom of expression includes the right to receive and impart information without interference by public authority. According to the Court’s decision, receiving and imparting information is a necessary condition for ensuring freedom of expression, as no one can form a well-founded opinion without knowing the relevant facts. The Court recognised this case as an “interference—by virtue of the censorious powers of an information monopoly—with the activities of a ‘public watchdog’.” In the Court’s opinion, filing a complaint for abstract review of legislation, especially by members of parliament, is undoubtedly a matter of public interest, and that “if public figures can censor the press and control public debates under the guise of their personal rights... it would have fatal consequences for freedom of expression in politics.” The Constitutional Court’s monopoly on information is a form of censorship and may result in the media and public watchdogs being unable to perform their vital role of providing accurate and reliable information in public debates on matters of legitimate public interest.

The Madrid-based organisation Access Info Europe welcomed the Court’s decision. “This decision establishes that public authorities, including parliaments and courts, must disclose information in their possession, particularly when that information is necessary for public debate on issues of state importance. Failure to do so is a violation of one of the fundamental human rights—the right to ask and the right to know,” said Helen Darbishire, Executive Director of Access Info Europe.

“This decision confirms a right already entrenched in Europe in at least 24 national constitutions and 40 national laws, as well as in the practice of national courts,” added Darbishire. “This is a vital right for people who need state information to protect other human rights, fight corruption, and participate in decision-making processes.”
14 April 2009