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.
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.
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.
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.
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.
- 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.