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ECHR - Business and Human Rights - Data Protection

European Convention on Human Rights

Access to information under article 10 ECHR – Centre for Democracy and the Rule of Law v. Ukraine

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After the judgment in Studio Monitori v Georgia, the European Court of Human Rights has further developed its line of case law on access to information under article 10 ECHR in ‚Centre for Democracy and the Rule of Law v. Ukraine‘. The case concerns a request for access to information in connection to the parliamentary elections held in Ukraine in 2014.

Facts

The applicant was an NGO dedicated to furthering the rule of law in Ukraine. At the time the application was filed, the applicant was called Media Law Centre.

Ukrainian law set out that candidates standing in the 2014 election had to submit their CV to the Central Election Commission when registering. The Central Election Commission published parts of the information contained in the CVs on a website.

In 2014, the applicant asked the Central Election Commission to provide it with copies of the CVs the candidates had submitted. The Commission refused. It pointed out that the requested information constituted confidential information protected by the right to private life. It stated that it could only use the CVs for the purposes for which they had been provided and that the candidates had not consented to disclosure of information regarding their work history, family, address and telephone, which was contained in their CVs.

The applicant organization filed a lawsuit on the basis of the Access to Public Information Act. It pointed out that the requested information regarding the candidates’ education, their work history and families was relevant to assessing the level of competence of the respective candidates and to establish potential conflicts of interest.

The court dismissed the civil action. It stated that information about the candidates had already been published on the website of the Central Election Commission. According to the court, the applicant’s head failed to substantiate why further information was needed for the voters to exercise their right to vote effectively.

The court also referred to the judgment of the European Court of Human Rights in the case von Hanover v. Germany. It stated that the European Court of human rights had headed in that case that restrictions on the rights enshrined in article 10 ECHR are permissible when it is necessary to protect rights guaranteed by the right to private life pursuant to article 8 ECHR.

The applicant organization appealed against the judgment. It submitted that the case von Hannover v. Germany was not pertinent to the case at hand, because the requested information did not concern the private life of the candidates but their education, job history and families.

The Court of Appeals upheld the first instance judgment; the High Administrative Court refused to institute proceedings for review of the lower court’s decision on points of law.

Legal assessment

Admissibility

The Court has the task to control whether states comply with their obligations under the European Convention on Human Rights (article 19 ECHR). Consequently, it only has jurisdiction to entertain cases which regard potential violations of the ECHR; only applications concerning such a violation are admissible. The question, whether an action or omission by a state falls within the scope of a Convention right is therefore a question of admissibility.

The Court underlined that it was a question of admissibility whether article 10 ECHR conferred a right of access to information. However, it stated that the question was linked closely to the merits and decided to examine the applicability of article 10 ECHR together with the question whether there had been an interference under the merits of the case.

Merits

The Court pointed out that it had established in Magyar Helsinki Bizottsag v. Hungary four criteria to assess whether article 10 ECHR confers a right to access information in a given case:

  • The purpose of the information request
  • The nature of the information sought
  • The particular role of the seeker of information in ‘receiving and imparting’ it to the public
  • Whether the information thought is readily available

The Court pointed out that the applicant organization had conceded during the proceedings before the Court that the candidates’ addresses and phone numbers could not have been disclosed. It also pointed out that the list of family members had been available from alternative sources. In regard to this information, the Court was of the view that there had not been an interference with the applicant’s rights under article 10 ECHR

However, based on the criteria mentioned above, the court found that the refusal to provide the applicants with information regarding the candidates’ work history and education amounted to an interference with the applicant’s rights under article 10 ECHR. It stated that the purpose of the information request had aimed at providing transparency on the candidates’ qualification for office and potential conflict of interests. The applicant organization had clearly explained that on the domestic level. Regarding the nature of the requested information, the Court found that it had been clearly in the public interest.

Also, the applicant organization had an important function as a public watchdog. The court added that the information had been readily available.

Thus, the request to access the information had fallen within the scope of article 10 ECHR; the refusal to provide the information had amounted to an interference with that right.

The Court conceded that there had been a legal basis for this interference; it was also of the view that interference had served a legitimate aim.

The Court examined whether the interference had been necessary in a democratic society. It noted that the requested information constituted personal data but much of it had been already in the public sphere. It concluded that it was therefore not necessary to balance the candidates’ rights under article 8 ECHR with the rights under article 10 invoked by the applicant organization. It stated that the candidates had submitted their CV for purposes of the parliamentarian election and thus exposed their qualifications and record to close public scrutiny.

The Court was of the view that the domestic courts had failed to conduct an adequate balancing exercise. They had, according to the Court, just referred to the candidates’ right to private life, but not sufficiently considered what harm the disclosure of their education and work history could actually cause.

The Court concluded that the refusal to provide this information had not been necessary in a democratic society. It found a violation of article 10 ECHR

Michel Platini does not score at the European Court of Human Rights

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The European Court of Human Rights has declared inadmissible an application submitted by former football player Michel Platini. The case concerned the disciplinary sanctions imposed on Platini by the Ethics committee of the FIFA and confirmed by the Court of Arbitration for Sport (CAS)

Facts

Platini had supported Joseph Blatter’s campaign to become President of FIFA in 1998. After Blatter had been elected, Platini started working for the FIFA as an advisor. He resigned from that post when he was elected as a board member of UEFA. He later also became vice-president of the FIFA.

In 2007, Platini demanded that his time working as an advisor be counted in for the calculation of his retirement entitlements. The FIFA acceded to the request.

In 2011, he sent an invoice over 2 Million Euros to the UEFA, stating the sum had been agreed upon orally as an additional salary on top of the salary fixed in his written contract. The FIFA paid the requested sum.

In 2015, the Swiss prosecution service instigated an investigative procedure against Platini (which is still pending). The Investigatory Chamber of the Ethics Committee of the FIFA initiated disciplinary proceedings regarding breaches of the Code of Ethics against Platini. The Adjudicatory Chamber of the FIFA Ethics Committee suspended the applicant from all activities related to football for 90 days.

After the investigation had been finalised, the Adjudicatory Chamber ruled that Platini had violated several provisions of the Code of Ethics. It referred, inter alia, to a provision according to which employees were not allowed to accept payments from ‘third parties’ It imposed a fine of 80.000 Swiss Francs on him and suspended him from all activities related to football for a period of eight years.

Platini appealed against this decision to the Court of Arbitration for Sport (CAS) in Lausanne. He contended, among other arguments, that the provision prohibiting payments from ‘third parties’ did not refer to payments made by the FIFA itself. He also called into question the proportionality of the sanctions that had been imposed on him.

The CAS reduced the fine imposed on him and shortened the period of suspension from eight years to six years.

Platini appealed to the civil section of the Federal Court of Switzerland. He stated that the CAS had rendered an arbitrary judgment, because it had based its decision on factual findings which were obviously not supported by the case file and because it had committed obvious errors in law.

The Federal Court held that it had jurisdiction to entertain the lawsuit. However, it stated that is competence was limited to examining whether the CAS had established facts which were manifestly contrary to the facts emerging from the case file and whether there were obvious violations of the law or of the principle of fairness. Both was, according to the Federal Tribunal, not the case.

Legal Assessment

Jurisdiction ratione personae

Regarding the admissibility of the application, the Court examined whether the Convention was applicable ratione personae. The ECHR governs in principle the relationship between states and persons within their jurisdiction. It does not directly apply to relationships between private individuals (although states may have a positive obligation to ensure that the Convention rights are respected when private individuals engage with each other, too). Since the FIFA is a body governed by Swiss private law, the question arises whether the Court is competent to examine procedures conducted by organs or bodies of the FIFA.

The Court pointed out that the responsibility of the Swiss state was engaged, since Swiss law provides for the enforcement of awards by the CAS and since the Federal Court of Switzerland is – albeit to a limited extent – competent to examine them when deciding upon their recognition. This is in line with the Court’s previous judgment in Mutu and Pechstein v. Switzerland.

Exhaustion of domestic remedies regarding article 6 ECHR

Among the several articles of the Convention Platini relied on was the right to a fair trial pursuant to article 6 ECHR. He questioned the impartiality of the CAS, contended that the rights of the defence had been unduly restricted and that he had been denied access to the case file.

The Court pointed out that applicants had to exhaust domestic legal remedies before submitting an application to the European Court of Human Rights. According to the Court’s long-standing jurisprudence, this does not only mean that the applicant has to avail himself of effective legal remedies. It also implies that he must address the legal point on which he bases the application at least in substance before domestic courts.

The Court’s jurisprudence in that regard is not entirely consistent. While the Court has stated many times that applicants are not required to refer to a specific article of the Convention to exhaust legal remedies, it has at times declared applications inadmissible on the grounds that the applicant had failed to rely on the article in question and on the pertaining jurisprudence of the Court in their pleading before domestic courts. This has been especially the case with applications concerning states which have incorporated the ECHR into their own legal system (see for example Budimir v. Croatia). On the other hand, the Court is sometimes quite generous regarding the requirement that a legal point has to be addressed in substance on the domestic level. For example, in Gestur Jonsson and Ragnar Halldor Hall v. Iceland, the Court considered it sufficient that the applicants had addressed the issue under article 7 ECHR in substance in their oral pleadings before the Supreme Court (the case was referred to the Grand Chamber).

The Court pointed out that Platini had not even in substance contended that article 6 had been violated in his pleadings before the Federal Court of Switzerland. Therefore, it declared the application inadmissible regarding this complaint.

Alleged violation of article 7 ECHR

The applicant also relied on article 7 which prohibits the retroactive application of laws in criminal matters. He submitted that the CAS had applied a version of the Code of Ethics of the FIFA which had not been in force at the time when he had accepted the payment.

The Court pointed out that article 7 referred to criminal offences. It stated that the term ‘criminal offence’ had to be interpreted autonomously. Referring to its case law, the Court stated that disciplinary sanctions such as the ones imposed on Platini could not be considered as criminal convictions, because they were measures taken against a member of an organisation comprised of a comparatively small group of persons, according to rules adopted by that organisation. Thus, according to the Court, the disciplinary sanctions did not amount to criminal convictions.

Alleged violation of article 8 ECHR

Finally, Platini had submitted that the disciplinary sanctions imposed on him violated his right to respect for private life pursuant to article 8 ECHR.

The European Court of Human Rights stated that the notion private life was a broad term not susceptible to exhaustive definition. Among the many aspects it encompassed was the possibility to develop and to interact with other persons. In that regard it could also be applicable to professional activities. Since the applicant had dedicated his entire professional life to football and was now banned from all activities in that field, the protection afforded by article 8 ECHR was engaged.

Furthermore, the court pointed out that the been imposed on Platini had to be considered from the perspective of positive obligations of the state to ensure the right to respect for private life even in the relationships among private individuals. A certain margin of appreciation had to be afforded to the state. It concluded that the CAS had cited sufficient reason for its decision to ban Platini. There Federal Court of Switzerland had confirmed the decision rendered by the CAS providing plausible and convincing reasons.

For that reason, the court stated that article 8 ECHR had not been violated.

It declared the application inadmissible as manifestly ill-founded.

Right to access to information under art. 10 ECHR- Studio Monitori v. Georgia

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Background

In Studio Monitori and others v. Georgia, the European Court of Human Rights has examined under which circumstances article 10 ECHR confers a right to access to information.

Article 10 ECHR enshrines the right to freedom of expression. The second sentence of the article states, inter alia, that this right shall include ‘freedom to receive information’. It is subject to debate whether this language should be understood as implying a right to access information. For a long time, the European Court of Human Right has been reluctant to subscribe to that interpretation. In Magyar Helsinki Bizottsag v. Hungary, the Grand Chamber modified the Court’s stance on the issue and held that article 10 may provide a legal basis to access information if certain criteria are met. The recent case Studio Monitori and others v Georgia gave the Court the opportunity to reiterate its position on the right to access information under article 10.

Facts

The judgment deals with two applications which had been joined for adjudication in a single judgment

The first application was lodged by a NGO and one of its members, a journalist. The NGO had been founded to conduct journalistic investigations into matters of public interest. The NGO had requested access to a file in a criminal case against a third person. The registry of the court which kept the file informed the applicant that the file contained personal information about the defendant as well as classified information. It asked the applicant to explain why it wished to access the case file. 

The applicant submitted a court action in order to get access to the file. A public hearing took place in which the representative of the applicant pointed out that the applicant sought to access the file for purposes of a journalistic investigation project. She did not provide any further details on this, though. Instead, she relied on provisions article 37 of the General Administrative Code of Georgia. This provision stated that everybody had the right to access public information, regardless of the form in which it had been stored.

The second application had been submitted by a lawyer who was serving a jail sentence. While in prison, he had requested copies of court orders imposing pre-trial detention which had been issued in six different criminal proceedings. The cases had not been related to the applicant’s case.

The court provided him with copies of the operative part of the decisions. The lawyer submitted a court action to gain access to the full text of the decisions; he, too, relied on article 37 of the General Administrative Code. His action was dismissed. The court pointed to article 3 of the General Administrative Code which set out that article 37 did not apply to the judiciary.

Both applicants submitted applications to the European Court of Human Rights.

Legal assessment

Admissibility

The Court briefly discussed the admissibility of the application. The legal issue the applications gave rise to was whether article 10 ECHR conferred a right to access information. On the one hand, that question regards the Court’s jurisdiction. The Court is mandated to ensure that states meet their obligations under the ECHR. Consequently, it is only competent to examine the application if, in principle, an obligation to grant access to information can be inferred from the Convention. 

On the other hand, the question whether article 10 entails such a right concerns the core of the guarantees afforded by that provision. The Court therefore decided to examine the question on the merits of the case.

Merits – Right to access to information pursuant to article 10.

Development

For a long time, the Court has rejected the interpretation that article 10 confers a right to access information.  In Leander v. Sweden, it stated: ‘The Court observes 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. Article 10 (art. 10) does not, in circumstances such as those of the present case, 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.’

However, the Court held in a number of cases that article 10 ECHR was breached if the applicant had obtained a judicial decision granting access to certain documents and the relevant authorities had not complied with the judgment. For example, in Youth Initiative for Human Rights v Serbia, the applicant NGO had requested data on the use of secret surveillance measure from the Serbian intelligence agency based on the Serbian Freedom of Information Act. The Agency rejected the request; the applicant obtained a final judgment ordering the Agency to supply the requested information. The Agency failed to provide it. The Court found a violation of article 10 ECHR. 

In Magyar Helsinki Bizottsag v Hungary, the Grand Chamber has further modified the Court’s jurisprudence regarding the right to access to information under article 10 ECHR.

The applicant in that case was an NGO involved in the area of justice reform. It had run a project aiming to improve the quality of services provided by ex-officio lawyers. As part of this endeavour, it requested information on the names of ex-officio lawyers suggested to suspects by police officers since it suspected that lawyers were not chosen from the list of available lawyers provided by the bar association. The requests were based on the Hungarian ‘Data act’ which provided for access to information of public interest. 

Criteria

Referring, inter alia, to a growing international consensus on the importance of access to information, the Court held that a request to obtain information may be based on article 10 in certain cases. It set out four criteria:

  • The access to the requested information is a necessary requirement for the person to divulge information or to exercise his freedom of expression. This applies in particular to journalists or other groups of persons facilitation public debates.
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  • The requested information is in the public interest; e.g. it concerns the way in which public affairs are conducted
  • The person or entity requesting the information plays a role in initiating or facilitating public debates, for example as a journalist or an NGO
  • The information is readily available, i.e. it does not have to be gathered or compiled first

Application of principles

Applying these principles, the Court found no violation of the Convention.

Regarding the first applicants, it stated that their had sought the information in question to facilitate a public discussion. However, the information had not been necessary for the applicants to exercise their freedom of expression. During the domestic proceedings, they had been given the opportunity to explain why they needed the information but had failed to provide answers. The Court also pointed out that the applicants had been able to finalise their journalistic investigation without receiving the requested information.

In respect of the lawyer who had requested access to court decision on pre-trial detention, the Court pointed out that – unlike journalists or certain NGOs – he was not a ‘public watchdog’ mandated to facilitate public discussions. He, too, had failed to explain why he needed the requested information. The Court also expressed doubts that the information was in the public interest.

Consequently, there was no breach of article 10 ECHR.

ECtHR: Expulsion of aliens at Spanish border in Morocco did not breach ECHR

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Introduction

The judgment of the Grand Chamber in N.D. and N.T. v. Spain adds to the European Court of Human Rights’ growing body of jurisprudence on matters related to migration. The case concerned the expulsion of two men who had climbed over the fence separating Moroccan territory from the Spanish enclave of Melilla and who had been returned immediately. They argued that their expulsion had violated article 4 of Protocol 4 to the European Convention on Human Rights, which prohibits the collective expulsion of aliens; they also contended that no effective legal remedy had been available to them contrary to article 13 ECHR. The Grand Chamber did not find a violation of the Convention.

The case gives rise to interesting issues of admissibility as well as regarding the interpretation of article 4 of Protocol 4.

Facts

The applicants were nationals of Mali and of Cote d’ Ivoire respectively. They had fled their home countries and arrived in Morocco, where they stayed in an informal migrants’ camp. The camp is situated near the town of Melilla. Melilla is a Spanish enclave on the North coast of Africa which is surrounded by Moroccan territory. The border between Melilla and Morocco is an external border of the Schengen area and provides access to the European Union.

The border is highly secured. There are three fences, which are six, three and six metres high respectively. The Spanish Guardia Civil is patrolling the area to prevent illegal border crossings.

On 13 August 2014, large groups of people tried to cross the border on two occasions. The applicants took place in the first attempt. They managed to reach the fences and to climb them. They stayed on the top of the fence for several hours. Finally, members of the Guardia Civil provided them with ladders. After the applicants had climbed down, the member of the Guardia Civil handcuffed them, transported them to Morocco and handed them over to the Moroccan authorities. The applicants were not asked about their personal circumstances, their identities or the reasons motivating them to wish to go to Spain

A few weeks after their return to Morocco, the applicants succeeded in overcoming the fences separating the territory of Morocco from the Spanish territory. They were transported to Spain, but ultimately expelled following legal proceedings in which they had been represented by lawyers.

The applicants submitted that their forceful return to Morocco after their first attempt to climb over the fences of Melilla, violated the prohibition of collective expulsion of aliens.

Legal assessment

Admissibility

The Grand Chamber examined a number of issues regarding the admissibility of the applications.

Pursuant to article 37 ECHR, the Court can stop considering a case and strike it out of the list of pending cases if the applicant does not intend to pursue the application further. However, the Court may also decide to continue the examination of the case if that is required in the interest of human rights.

The Court had asked the applicant’s representatives whether they still communicated with their clients to establish if the applicants intended to pursue their application. The representatives had stated that the applicants lived in precarious conditions and changed their place of residence frequently; however, they had stayed in touch via WhatsApp and with the help of an interpreter. The Court was satisfied that they applicants intended to pursue they applications; the Court also pointed out that the examination of the case was required in the interest of human rights, since it concerned issues of interpretation of the Convention which are important in the context of increased migration and the new challenges it entailed.

Jurisdiction

The Convention only applies to persons within the jurisdiction of a contracting state. The Spanish government had argued that the applicants had never been within its jurisdiction. While it conceded that the fences had been built on Spanish territory, it argued that they had been erected to prevent persons entering the EU unlawfully as required by the Schengen border code. There, the Government argued, persons came into the Spanish jurisdiction only after they had passed the three fences and the police line.

The Court was not persuaded by this argument. It referred to its long-standing jurisdiction to the effect that jurisdiction was primarily territorial: States are obliged to guarantees the rights enshrined in the Convention on their territory. They were not at liberty to exclude their responsibility under the Convention for certain parts of their territory. Since the applicants had reached the fences and the fences stood on Spanish soil, the applicants had been within Spain’s jurisdiction.

Victim status

The Spanish government had argued that the applicants had lost their victim status, since they had succeeded in entering Spain later on and had been expelled following procedures in which they had been represented by counsel. The Court rejected that argument.

Applicability of art. 4 of Protocol 4

The Grand Chamber examined whether art. 4 of Protocol 4 was applicable in the case.

The Spanish government argued that the applicants had not been expelled but rather been prevented from entering the EU. According to the government, the drafters of the Convention had not intended to extend the scope of art. 4 of Protocol 4 to extra-territorial situations like the one at hand. The provision did not afford any protection to persons who had the opportunity to cross a land border lawfully but chose not to make use of it.

The Court reiterated that states have, in principle, the right to control the entry, residence and removal of aliens. Consequently, they were entitled to protect their borders. It also pointed to the Schengen border code, which underlines the importance of managing the entry of migrants for states which have an external EU border and therefore control access to the EU. At the same time it stressed that the need to protect borders did not absolve states from their obligations under the Convention

After an extensive analysis of relevant provisions of international law, the Court concluded that expulsion was to be interpreted as ‘to drive away from a place’. In the Court’s view, there is no distinction between the non-admission of an alien and his expulsion. Once an individual has entered a state’s territory and then forced to leave it, an expulsion has taken place and art. 4 of Protocol 4 is applicable. Since the Court had ruled that the applicants had been within Spain’s jurisdiction and since they had been escorted outside of Spanish territory, the events fell within the scope of art. 4 of Protocol 4.

Merits – Collective expulsion

The Grand Chamber examined whether the expulsion had been ‘collective’. The Court referred to its established case law to the effect that an expulsion does not have to affect a minimum number of persons to be ‘collective’. It also reiterated that the expelled individuals do not have to belong to a certain group or share any distinctive features such as ethnicity or beliefs.

The characteristic which renders an expulsion ‘collective’ is, in the Court’s view, is that someone is subjected to it without a procedure giving him the opportunity to submit his arguments and without examining his personal circumstances.

The Court also pointed out that the conduct of the applicant plays a role when assessing the scope of protection afforded by art. 4 of Protocol 4. That principle also applied to persons who enter a country in an illegal manner, making use of force and of the situation created by large numbers of persons trying to cross the border at the same time. However, in this context it also had to be considered whether these persons had had another choice, i.e. whether Spain had provided genuine access to means of legal entry.

The Court stated that states whose border is an external border of the EU are obliged to make available effective access to means of legal entry. Where such arrangements exist, the Convention did not prevent them from refusing entry to aliens who did not comply with these procedures without cogent reasons.

The Court examined the possibilities Spain offered migrants or asylum seekers to enter Spain lawfully or to request permits to do so. It concluded that a sufficient number of ways existed to claim refugee rights or to request asylum in Spain, inter alia via a number of Spanish consulates and embassies. Since the applicants had not made use of these procedures but tried to force their way into Spain, their immediate return did not constitute a breach of art. 4 of Protocol 4.