CEDH · CASELAW;CLIN;ENG — 14 avril 2009

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Hungary - 37374/05 Judgment 14.4.2009 [Section II] Article 10 Article 10-1 Freedom to impart information NGO denied access to information on a pending constitutional case: violation   Facts : In March 2004 a Member of Parliament and other individuals lodged a complaint for review of the constitutionality of amendments to the Criminal Code concerning drug-related offences. Several months later the applicant, a human-rights non-governmental organisation active in the field of drug policy, requested access to the pending complaint. Without consulting the MP, the Constitutional Court refused the applicant’s request explaining that complaints before it could be made available to outsiders only with the approval of the complainant. Subsequently, the applicant brought an action in the regional court for an order requiring the Constitutional Court to give it access to the file, in accordance with the relevant provisions of the Data Act 1992. In a decision that was upheld by the court of appeal, the regional courts dismissed the applicant’s action after finding that the requested data was “personal” and could therefore not be accessed without the complainant’s approval. The protection of such data could not, in the courts’ view, be overridden by other lawful interests, including the accessibility of public information. Meanwhile, the Constitutional Court decided the constitutionality question and published a summary of the complaint in its decision. Law : In relation to freedom of the press, the Court had consistently held that the public had the right to receive information of general interest. Given the nature of the applicant’s activities involving human-rights litigation, inter alia , in the field of protection of freedom of information, the Court characterised the applicant as a social “watchdog”, whose activities warranted similar Convention protection to that afforded to the press. The Court further observed that an application for abstract review of constitutionality, particularly when made by a Member of Parliament, undoubtedly constituted a matter of public interest. In creating an administrative obstacle and refusing to grant access to the content of such application to the applicant, which was involved in the legitimate gathering of information on matters of public importance, the authorities had interfered in the preparatory stage of that process. Moreover, the Constitutional Court’s monopoly of information in such cases amounted to a form of censorship. As to the merits, the Court reiterated that the right to freedom to receive information under Article 10 in the first place prohibited Governments from restricting the receipt of information that others wished or might be willing to impart. However, the applicant’s case primarily concerned the exercise of the functions of a social watchdog rather than a denial of a general right of access to official documents. The information sought by the applicant was ready and available and did not require any collection of any data by the Government. In such circumstances, the States had an obligation not to impede the flow of information sought by the applicant. Further, no reference to the private life of the MP in question could be discerned in his complaint. It would be fatal for freedom of expression in the sphere of politics if public figures were able to censor the press and public debate in the name of their personality rights. Finally, the Court considered that obstacles designed to hinder access to information of public interest might discourage   those working in the media or related fields from performing their vital role of “public watchdog” and thus affect their ability to provide accurate and reliable information. Conclusion : violation (unanimously). Article 41 – Finding of a violation constituted sufficient just satisfaction for any damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes