Litigation
HCLU v. Hungary
Freedom of Information Receives Major Boost in Europe
A Hungarian member of Parliament filed a complaint with the Constitutional Court about Hungary's drug laws. The Hungarian Civil Liberties Union (HCLU) applied to the Court to receive a copy of the complaint, but were refused. The European Court of Human Rights (ECHR) held that this interfered with the right of an NGO to access information that was needed for them to play their role as a public watchdog. (Keywords: Access to Information - NGOs - Public Watchdog)
Facts
A member of the Hungarian Parliament (MP), together with other individuals, filed a petition to the Constitutional Court challenging the constitutionality of amendments to drug offenses under the Hungarian criminal code.
The HCLU plays an active role in the national drug policy debate and occasionally intervenes as a "friend of the court" or in other capacities, in proceedings before the Hungarian Constitutional Court.
The HCLU applied to the Constitutional Court for a copy of the petition. Both the Constitutional Court and the ordinary domestic courts rejected the HCLU's access requests, ultimately holding that the petition constituted "personal data" that could only be disclosed with its authors' permission.
The HCLU urged that it was entitled to receive the requested information pursuant to Article 10 of the European Convention on Human Rights (ECHR), which guarantees the right to freedom of expression, including the "freedom ... to receive and impart information without interference by public authority." The HCLU submitted that its right to receive and impart information, a precondition of freedom of expression, had been violated.
Open Society Justice Initiative Involvement
The Open Society Justice Initiative led an effort by a number of NGOs and media companies, including the Financial Times, to intervene as third parties in the current case.
Arguments Before the ECHR
The third party intervention outlined the right to information in European law and practice, and the status of the law in other regional human rights systems, in particular referring to the decision of the Inter American Court of Human Rights in the case of Claude Reyes v Chile.
Timeline
March 2004. The MP lodges complaint for review with the Constitutional Court, and gives a press interview in July.
September 14, 2004. HCLU applies to Constitutional Court for access to the complaint, pursuant to section 19 of the Data Act 1992.
October 12, 2004. Court denies application.
October 11, 2005. HCLU files application with Strasbourg Court.
November 13, 2008. ECtHR declares application admissible.
April 14, 2009. Decision of the ECtHR.
Finding
The Court recognized for the first time that Article 10 of the Convention guarantees the "freedom to receive information" held by public authorities. The Court found that when the state has information of public interest in its possession, and is requested to disclose such information to a "watchdog" group - whether the press or NGOs that serve a watchdog role - it is obliged "not to impede the flow of information".
The Court notes that states are obliged to "eliminat[e] barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities," and concludes that the Constitutional Court's control of the requested information amounted to a similar sort of "information monopoly."
The Hungarian Government, via the Constitutional Court, had justified withholding the requested petition on the ground that to release it would interfere with the right to privacy of the Member of Parliament who had submitted the petition.
The Court found that the right of access to government information may be restricted at times to protect other rights, such as personal privacy, but any such restrictions must meet the three-part test set forth in Article 10(2): they need to be provided by law; serve one of the legitimate interests listed in Art. 10(2); and be necessary in a democratic society. Applying that test to the current facts, The Court found "it [to be] quite implausible that any reference to the private life of the MP, hence to a protected private sphere, could be discerned from his constitutional complaint," and concluded that "it would be fatal for freedom of expression in the sphere of politics if public figures could censor the press and public debate in the name of their personality rights."
Resources
Court Documents
Observations, HCLU, August 18, 2008.
Written Comments, Open Society Justice Initiative and others, September 2008.
Judgment, European Court of Human Rights, April 14, 2009.
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