EHRM, 08-11-2016, nr. 18030/11

The applicant, Magyar Helsinki Bizottság (Hungarian Helsinki Committee), is a non-governmental organisation (NGO) that was founded in 1989. It monitors the implementation of international human-rights standards in Hungary, provides legal representation to victims of alleged human-rights abuses and promotes legal education and training both in Hungary and abroad. Its main areas of activity are protecting the rights of asylum seekers and foreigners in need of international protection, and monitoring the human-rights performance of law-enforcement agencies and the judicial system. In particular, it focuses on access to justice, conditions of detention, and the effective enforcement of the right to defence.

The Constitution, as in force at the material time, provided as follows:

Article 59

Article 61

Act no. LXIII of 1992 on the Protection of Personal Data and the Disclosure of Information of Public Interest (the ‘Data Act’), as in force at the material time, provided, in so far as relevant:

Definitions

Section 2

The purpose of data processing

Section 5

Data transfer, combination of data management

Section 8

Access to information of public interest

Section 19

Section 19/A

Section 20

Section 21

Section 21/A

Act no. XIX of 1998 on the Code of Criminal Procedure, in its relevant part, provides as follows:

Right to defence

Article 5

Article 46

Article 48

Recommendation no. 1234/H/2006 of the Parliamentary Commissioner for Data Protection on the harmonisation of laws applicable to the disclosure of personal data related to the functions of persons performing public duties reads, in its relevant part, as follows:

Interpretation of section 19 (4), aspects to be taken into consideration in its application

The applicant NGO complained that the authorities' denial of access to the information sought by it from certain police departments represented a breach of its rights as set out in Article 10 of the Convention, which provides:

The Government contested that argument.

Article 41 of the Convention provides:

The key issue in the present case revolves around two approaches which appear, at least at first sight, to be diametrically opposed: the first approach, based on the travaux préparatoires of the Convention, consists in attempting to discern the intentions of the text's ‘founding fathers’; the second approach, which is reflected particularly in paragraphs 138–148 of the judgment, essentially consists in applying the well-known ‘living instrument’ doctrine. The historical intention of the Contracting Parties and adherence to the exact wording of Article 10 § 1 of the Convention thus seems to be opposed to the so-called evolutive interpretation of this provision.

It is well known that since its formulation in the Tyrer v. the United Kingdom judgment (25 April 1978, § 31, Series A no. 26), the idea that ‘the Convention is a living instrument … which must be interpreted in the light of present-day conditions’ has spread throughout the Strasbourg case-law and has formed the basis for an interpretive approach which has enabled the Court to adapt, over time, the text of the Convention to legal, social, ethical or scientific developments. Where, explicitly or implicitly, it makes use of the ‘living instrument’ doctrine, the Court usually emphasises at the same time the specific features of the Convention as a treaty for human-rights protection (see paragraphs 120–122 of the present judgment).

Admittedly, in the area in question the rate of such developments is frequently more rapid than in other areas of international law, which could explain the more frequent recourse to the so-called evolutive method of interpretation. It is perhaps significant that the other bodies for human-rights protection — be they judicial or quasi-judicial, international or regional — also often adopt the approach in question (see, purely by way of indication, the judgment of the Inter-American Court of Human Rights in Supreme Court of Justice (Quintana Coello et al.) v. Ecuador of 23 August 2013, § 153, on the henceforth wider interpretation of the concept of an ‘independent court’, confirmed by the judgments in Constitutional Tribunal (Camba Campos et al.) v. Ecuador of 28 August 2013 and López Lone et al. v. Honduras of 5 October 2015). However, as has been amply demonstrated, the evolutive method of interpretation has been used by other international and national judicial bodies, including the International Court of Justice, the arbitral tribunals, the supreme courts of France, the United Kingdom, Germany, etc. (see E. Bjorge, The Evolutionary Interpretation of Treaties, Oxford, Oxford University Press, 2014, and id., ‘The Convention as a Living Instrument Rooted in the Past, Looking to the Future’, to appear in Human Rights Law Journal, ‘Colloquy in Honour of Judge Paul Mahoney’). In other words, although the ‘living instrument’ doctrine has been emphasised by the Court, the resulting interpretative approach is not exclusively tied to the Convention (or to the other conventions and treaties for human-rights protection). It extends far beyond this context and is part of national and international judicial practice in respect of many other areas of international law, and even of law in general.

Although the ‘living instrument’ doctrine and the underlying evolutive method of interpretation may at first sight appear innovative, in reality — and provided that they are applied with prudence (see below) — they are in line with the presumed intention of the Contracting States, which are also living entities. To borrow the phrasing of a former President of the Court, Sir Humphrey Waldock (who was also, it will be recalled, the last Special Rapporteur of the International Law Commission on the Law of Treaties):

in Mélanges Paul Reuter, Paris, Pedone, 1981, p. 547).

This approach has been confirmed and generalised by the International Court of Justice, which recently emphasised:

(ICJ, Dispute regarding Navigational and Related Rights (Costa-Rica v. Nicaragua), judgment of 13 July 2009, ICJ Reports 2009, p. 213, § 66).

In other words, far from marking a departure from the parties' intention, the evolutive interpretation of a convention or treaty containing generic terms — which is the case for the Convention — must be seen as reflecting, in principle, the presumed intention of the Contracting States. The nature and scope of the terms used by the drafters of such a treaty, on the one hand, and its indeterminate duration, on the other, lead us to consider that, unless shown otherwise, the parties wish it to be interpreted and applied in a manner that reflects contemporary developments. This interpretative method allows the text of a convention to be continuously adapted to ‘present-day conditions’, without the need for the treaty to be formally amended. The evolutive interpretation is intended to ensure the treaty's permanence. The ‘living instrument’ doctrine is a condition sine qua non for the Convention's survival!

This approach is corroborated by the Preamble to the Convention, which refers not only to the ‘maintenance’ but also the ‘further realisation of Human Rights and Fundamental Freedoms'. In other words, the ‘founding fathers’ did not conceive human rights as being static and frozen in time but, on the contrary, as dynamic and forward-looking.

Admittedly, the evolutive method of interpretation is not mentioned expressis verbis in Articles 31 to 33 of the Vienna Convention on the Law of Treaties. It could therefore be argued that this method arises from a progressive development of international law (see L.-A. Sicilianos, ‘The Human Face of International Law — Interactions between General International Law and Human Rights: An Overview’, in Human Rights Law Journal, 2012, nos. 1–6, pp. 1–11, p. 6). The fact remains, however, that it is fully compatible with the underlying logic of the above-mentioned provisions of the Vienna Convention. It is certainly to be borne in mind that Article 31 of that convention refers, inter alia, to the object and purpose of the treaty, as well as to subsequent agreements, subsequent practice and any relevant rules of international law ‘applicable in the relations between the parties’, including the instruments ratified by those parties after the conclusion of the treaty that is to be interpreted. All these elements allow for a teleological and dynamic interpretation, aimed at ensuring that the treaty in question adapts to developments subsequent to its adoption, especially where it contains generic terms whose meaning is likely to evolve over time and where it was concluded for an indefinite period.

In short, the evolutive method of interpretation of the Convention (and its Protocols) reflects, in principle, the presumed intention of the parties, and it constitutes a prerequisite for the survival (at the very least) of the substantive provisions of these instruments — such as Article 10 of the Convention, which is at the heart of the present case —, while remaining compatible with the relevant provisions of the Vienna Convention on the Law of Treaties. Nonetheless, it is necessary to clarify the limits of evolutive interpretation.

The Court has always sought to avoid the evolutive interpretation of the Convention from being perceived, particularly by the domestic courts, as a sort of ‘carte blanche’ allowing for excessive liberties with the text of the Convention. This ongoing concern led it to devote the ‘Dialogue between Judges’ seminar, marking the beginning of the 2011 judicial year, to this very topic (see European Court of Human Rights, What are the limits to the evolutive interpretation of the Convention? Dialogue between Judges 2011, Strasbourg, EuropeanCourtHR/Council of Europe, 2011). I do not claim to summarise this rich discussion, but it seems to me that there are three limits to the evolutive interpretation: firstly, this interpretive method must not lead to an interpretation contra legem; secondly, the proposed interpretation must be compatible with the object and purpose of the Convention in general, and with the provision to be interpreted in particular; and, thirdly, this interpretation must reflect ‘present-day’ conditions and not those which may prevail in the future.

Having attempted to clarify the relationship between travaux préparatoires and the evolutive interpretation, and the limits on this interpretation, I must now consider the importance and probative value of travaux préparatoires in general and, in the present case, in particular.

More generally, the manner in which Article 10 § 1 is interpreted by the Grand Chamber in the present case results, in my opinion, from the means of interpretation referred to in Article 31 of the Vienna Convention on the Law of Treaties. As we have seen, the letter of Article 10 is respected, since the wording ‘[this] right shall include freedom to hold opinions and to receive and impart information and ideas…’ amounts to an indicative rather than an exhaustive list of the various facets of freedom of expression. The adopted interpretation is also compatible with the object and purpose of this provision, and even of the Convention in general (see above, § 15). Equally, it is compatible with the context of the Convention and, in particular, its Preamble, which refers on several occasions to the Universal Declaration of Human Rights, in which the freedom to seek information is explicitly recognised.

Moreover, as pointed out in §§ 24–26 above, the Parties to the Convention — all of which are represented in the Committee of Ministers of the Council of Europe — agreed to affirm, in 1983, that Article 10 § 1 of the Convention protects the freedom to seek information. This joint position, recorded in an official Council of Europe document, may be considered as a ‘subsequent agreement between the parties regarding the interpretation of the treaty’ within the meaning of Article 31 § 3 (a) of the Vienna Convention on the Law of Treaties. In addition, the many national legislations of the Contracting States in which a right of access to information and/or official documents held by the public authorities is recognised (see paragraphs 64 and 139 of the judgment) amount to a ‘subsequent practice’, which, according to Article 31 § 3 (b) of the Vienna Convention, must be taken into account. As the ILC has already noted, taking into account subsequent agreements and subsequent practice ‘may contribute to a clarification in the sense of confirming a wider interpretation’ of the treaty (see ‘Report of the International Law Commission. Sixty-sixth session (5 May — 6 June and 7 July—8 August 2014), UN Doc A/69/10, ch. VII, ‘Subsequent agreements and subsequent practice in relation to the interpretation of treaties’, p. 180, par. 2).

Lastly, it will be borne in mind — and this is a particularly important aspect — that Article 19 (2) of the International Covenant on Civil and Political Rights, which explicitly mentions the right to seek information, is binding on all of the Contracting States of the Convention. This provision thus amounts to a ‘relevant rule[…] of international law applicable in the relations between the parties’ within the meaning of Article 31 § 3 (c) of the Vienna Convention.

In short, the interpretation adopted by the Court in the present judgment is firmly based in the elements laid down in the ‘general rule of interpretation’ of Article 31 of the Vienna Convention on the Law of Treaties. Moreover, although it may appear to be an ‘evolutive interpretation’ from the point of view of the Convention, in reality it does not amount to a real innovation. This interpretation, far from creating new international obligations for the States, corresponds in substance to what the parties to the Convention have already accepted for many years in ratifying the Covenant on Civil and Political Rights.

The Court finds that the freedom to receive and impart information under Article 10 § 1 of the Convention constitutes a basis for recognising a right of access to information held by public authorities, although such a right is neither provided for by domestic law nor is the public authority in question willing to part with the information requested. As I am unable to subscribe to the interpretive approach adopted by the Court, I respectfully dissent.

Let me begin by emphasising that, in my view, the starting point for a Judge of this Court cannot be what he or she considers to be the optimal state of affairs in European law as regards the right of access to information held by public authorities. It goes without saying that transparency and openness in a democratic society are fundamental values and that access to such information promotes such values. However, the role of this Court is not to imbue every positive development in the field of European human rights with the binding force of law by incorporating such developments into the Convention, irrespective of the limits laid down by the Convention's text and structure. The Court's role is rather to determine whether, as a matter of law, the Convention can be interpreted to include a particular right claimed by applicants who bring their cases to the Court. Whatever one's policy views on the value of access to information in a democratic society, the legal question before the Court in the present case is therefore the following:

Does Article 10 § 1 of the European Convention on Human Rights encompass a right of access to official documents or other information held by public authorities when no such right is provided for by domestic law and where the domestic authorities are not willing to part with such documents or information?

In accordance with Article 31 of the 1969 Vienna Convention on the Law of Treaties (VCLT) the Court can only legitimately answer this legal question by resorting to a ‘good faith’ interpretation of the ‘ordinary meaning’ of the text of Article 10 § 1 of the Convention read in ‘its context’ and ‘in the light of its object and purpose’ (Article 31 § 1 of the VCLT). Account must also be taken of the ‘preparatory work’ (travaux préparatoires) and the ‘circumstances’ of the Convention's adoption as a ‘supplementary means of interpretation’ in order to determine the correct meaning resulting from a textual interpretation should that interpretation (a) ‘leave the meaning ambiguous or obscure’; or (2) ‘[lead] to a result which is manifestly absurd or unreasonable’ (Article 32 of the VCLT). Furthermore, in conformity with the fundamental principle of legal certainty, emphasis must be placed on developments in the case-law of the Court. On the basis of the living instrument doctrine, the Court must also, if relevant, assess the possible existence of a consensus within Europe as regards the right in question, and must have regard to developments in international law in the light of the principle of harmonious interpretation. Lastly, an evaluation must be made of the practical consequences of a right of this nature deriving from the Convention.

In what follows, I will deal with each of these interpretive methods in turn.

Words matter when interpreting a legal text, including an international treaty. That proposition is the cornerstone of the fundamental interpretive principle provided for in Article 31 of the VCLT which provides, as stated above, that the starting point is the good-faith interpretation of the terms of the treaty in question in accordance with the ordinary meaning to be given to the terms in their context.

The first sentence of Article 10 § 1 of the Convention begins by stating that ‘Everyone’ has the right to freedom of expression. The second sentence then states that the right to freedom of expression ‘shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority’. In accordance with the interpretive principle of Article 31 of the VCLT, the textual formulation of the modalities of the free-speech right as set out in the second sentence of Article 10 § 1 of the Convention is, in my view, crucial for the resolution of the present case, for the following three reasons:

First, in the context of access to information, the text of Article 10 § 1 of the Convention is limited to the freedom to receive information and ideas without governmental interference (‘without interference by a public authority’). In other words, the text does not include the freedom to seek information, unlike Article 19 of the International Covenant on Civil and Political Rights, Article 19 of the Universal Declaration of Human Rights and Article 13 of the American Convention on Human Rights. The verb to receive, in its ordinary everyday meaning and when applying simple common sense, cannot be understood to include a right to access information that the holder does not want to impart. Thus, until today, this Court has, in Plenary and Grand Chamber judgments, found in a clear and concise manner, on the basis of a contextual reading of the text of Article 10 § 1 in accordance with its ordinary meaning, 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 does not … embody an obligation on the Government to impart such information to the individual’ (see Leander v Sweden, § 74, 26 March 1987, Series A no. 116; see also below, paragraphs 19–29).

Let me explain this further.

If one has a right to receive something, this right entails an obligation on third parties not to limit the right-holder's ability to take hold of the ‘something’ which is in the custody of another person or entity who or which is willing to impart it. The freedom to receive information under Article 10 § 1 is, in this sense and in accordance with its ordinary meaning, a passive right, triggered by the positive action of a willing provider of information and ideas, unlike the right to seek guaranteed by the above-mentioned provisions of the ICCPR and the Universal Declaration of Human Rights, which is manifested by the positive actions of the person or entity requesting information. When rightly understood within the context of Article 10 § 1 of the Convention, the freedom to receive information and ideas, exercised without interference by a public authority, is thus limited to situations where a person wants to impart information to another person or entity, for example a journalist, an NGO or whomever, correspondingly limiting the ability of Government to interfere with that transfer of information unless such an interference can be justified under Article 10 § 2 of the Convention. For example, according to the Court's case-law, the right to receive information under Article 10 § 1 secures in this way the fundamental right of the press to receive information from anonymous sources (see Goodwin v. the United Kingdom, [GC], no. 17488/90, 27 March 1996).

It follows that by interpreting the freedom to receive information within the meaning of Article 10 § 1 of the Convention as providing for a right of access to information from public authorities which are under no statutory duty to disclose that information and are not willing to impart it the Court turns this right on its head. At a minimum, this finding by the Court ascribes to the freedom to receive information a meaning which takes the right out of context within Article 10 § 1 and can therefore hardly be considered to convey its ‘ordinary meaning’, determined in its ‘context’, within the terms of Article 31 of the VCLT.

The textual formulation in Article 10 § 1 is also crucial because, secondly, this Article describes what ‘shall be included’ in the right to freedom of expression. As explained by the Court, it transpires from the preparatory work that the modality of seeking information was included by the drafters of Article 10, modelled after Article 19 of the Universal Declaration of Human Rights, but was deliberately omitted in the final text. This notwithstanding, the majority simply dismiss this omission as inconclusive, on the basis that it is unexplained in the travaux préparatoires (see paragraph 135 of the judgment). In my view, that is not the correct approach, since ‘some significance must attach to the subsequent omission of the [words to seek from Article 10]’, as correctly noted in the opinion given by Lord Mance for the majority of the United Kingdom Supreme Court in Kennedy v. the Charity Commission (26 March 2014, UKSC 20), referred to by the United Kingdom Government in their pleadings as a third-party intervener in the present case.

The deliberate omission of the verb to seek during the drafting process of the Convention, should, as an absolute minimum, do two things: first, it should lead the Court to exercise a degree of prudence when analysing whether Article 10 § 1 can be interpreted to include the very same manifestation of the right to seek, or in other words, to provide for a positive obligation of disclosure by Governments that was deliberately excluded. Second, the preparatory work must be considered to enjoy a degree of importance in assessing the legitimacy of the interpretive option that the right to receive in any event encompasses the right to seek information from public authorities, notwithstanding the latter's deliberate omission. It is important to recall the fact that the initial draft of Article 10 § 1 of the Convention was based on an already existing international principle in Article 19 of the Universal Declaration of Human Rights, where these two methods of exercising the right to freedom of expression were clearly distinguished.

The third reason that the wording and formulation of Article 10 § 1 are important is, as indicated above, that the methods of exercising the freedom in question are couched explicitly in negative terms, thus they shall not be ‘interfered [with] by public authorities’. In this sense, Article 10 § 1 is different from the first paragraphs of Articles 8, 9 and 11 of the Convention, the latter being textually framed in such a way as to allow the Court more flexibility in recognising positive obligations and identifying novel rights than is possible under Article 10. It follows that the example given by the majority in this context in support of its findings, that is, the recognition of a negative right to freedom of association under Article 11 of the Convention, as found in the case of Sigurður A. Sigurjónsson v. Iceland (30 June 1993, § 35, Series A no. 264), is quite inapposite (see paragraph 125 of the judgment). The Court's recognition of a negative right to freedom of association under Article 11 was, in other words, fully compatible with the wider textual formulation of that provision, whatever was stated in the preparatory work. That is not the case when one attempts to locate a right of access to information held by public authorities within Article 10 § 1.

In sum, when one examines in good faith the ordinary meaning of the words used in Article 10 § 1 of the Convention, in their context and in the light of the preparatory work as a supplementary means of interpretation, one must conclude, at least as a starting point, that Article 10 § 1 does not, and was not meant to, encompass a right to access information held by public authorities that they are not willing to impart or obliged to disclose under domestic law.

Let me turn now to the object and purpose of the right to freedom of expression under Article 10 § 1 of the Convention, and I emphasise, Article 10 § 1 of the Convention, because the present case deals only with the formulation of the free-speech rights under the Convention, and is not a mere abstract and theoretical account of this fundamental right, which is manifested in different ways in different domestic and international norms.

It might be useful to start off by posing the following doctrinal question: is it an axiomatic purpose of freedom of expression to include a right of access to information held by public authorities? The answer to that question depends on one's conception of the theoretical foundations of free-speech rights. Constitutional theory in those countries that first adopted the European Convention on Human Rights, which forms the underlying doctrinal premise for many of the fundamental freedoms in the Convention, is based on the idea that freedom of expression is a liberty, a right not to be interfered with by those in power, rather than a mandate for proactive measures by Government. The right to freedom of expression as provided by the Convention requires that governments refrain from limiting the free expression of opinions and ideas, not that governments are under a binding obligation, pursuant to the Convention and in the absence of a legal duty under domestic law, to impart documents or other information that they hold. That is the theoretical foundation of the Court's prior case-law in this area, in conformity with the negative textual formulation of Article 10 § 1 of the Convention (see paragraphs 19–29 below). Of course, the founders could have taken a more overarching view of the object and purpose of free-speech rights by including the words to seek information in Article 10 § 1, thus requiring that governments actively disclose information to the public, but they decided not to do so, a clear and concrete decision that this Court must respect.

In today's judgment the Court observes that ‘to hold that the right of access to information may under no circumstances fall within the ambit of Article 10 of the Convention would lead to situations where the freedom to ‘receive and impart information’ is impaired in such a manner and to such a degree that it would strike at the very substance of freedom of expression. For the Court, in circumstances where access to information is instrumental for the exercise of the applicant's right to receive and impart information, its denial may constitute an interference with that right. The principle of securing Convention rights in a practical and effective manner requires an applicant in such situations to be able to rely on the protection of Article 10 of the Convention’ (see paragraph 155 of the judgment).

With respect, the issue here is not so simple. It is hardly a debatable claim that a fully transparent and open society, where all data and information, whatever its origins, would be accessible to every person, can be conducive to a more informed debate on matters of public interests as well as enhancing the ability of the public to effectively monitor the exercise of governmental power. Indeed, as I stated at the outset, the positive value of access to information is unquestionable, as is demonstrated firstly by the fact that most of the member States of the Council of Europe have enacted freedom-of-information legislation at the level of primary law and, secondly, that the Council of Europe has adopted the 2009 Convention on Access to Official Documents (see further, paragraph 33 below). But, again, the Convention is an international treaty with legal force. It has its limits, set out in its text and structure as interpreted in the light of the fundamental interpretive principles of the VCLT. The principle requiring a practical and effective interpretation of the Convention, by reference to its object and purpose, is not an open invitation for the judges of this Court to elevate any positive development in the member States to the level of a binding international norm, thus limiting the States’ sovereign and democratic rights. In other words, even though the Convention is a human-rights treaty it ‘must surely be wrong … to say that because of the importance of the object and purpose of human-rights treaties this particular element of interpretation should take on greater importance when one is interpreting [such] treaties than when one is interpreting other types of treaty’ (see Eirik Bjorge, The Evolutionary Interpretation of Treaties, Oxford University Press, 2014, p. 36).

Furthermore, and importantly, as regards the proposition that the right to access information held by public authorities is necessarily correlated with the original objective and purpose of freedom of expression, it is quite difficult to take issue with the views expressed by one of the foremost European scholars on free speech, Professor Eric Barendt. In his book Freedom of Speech (Oxford University Press, 2005, p. 108), he argues that the case for a ‘right to know’ is attractive, but should only be accepted subject to ‘major qualifications’:

He then states, and this is very important in this context, as I will further explain in Section VII below:

In light of the above, it does not follow in my view that the existence of a right to freedom of expression inherently includes a right of access to information held by public authorities. Such recognition depends on the way the free speech instrument in question formulates that right. Article 10 of the Convention does not textually provide for the freedom to seek information, but is limited to the freedom to receive information. Hence, the right of access to information cannot be created without any textual basis by reference to the object and purpose of Article 10 and the need to interpret that provision to be more practical and effective, when the text itself makes clear that the purpose of the freedom of expression under the Convention is more narrow: it guarantees a freedom from governmental interference, nothing more.

Let me now turn to the developments in the Court's case-law in this area and their relevance for the resolution of the present case.

In paragraphs 126–33 of the judgment, the majority give an overview of these developments, in particular the Chamber, Plenary and Grand Chamber judgments in Leander v. Sweden, Gaskin v. the United Kingdom, Guerra and Others v. Italy and Roche v. the United Kingdom, and the Chamber decisions in Eccleston v. the United Kingdom and Jones v. the United Kingdom. The majority judgment then refers to subsequent case-law, in particular the inadmissibility decision in Matky v. the Czech Republic, the Chamber judgments in Társaság a Szabadságjogokért v. Hungary, Kenedi v. Hungary, Youth Initiative for Human Rights v. Serbia, Österreichische Vereinigung v. Austria and the most recent Grand Chamber judgment in Gillberg v. Sweden (for full citations, see the text of the present judgment).

The majority rightly notes that in Leander, Gaskin, Guerra and Others and Roche (along with Eccleston and Jones), the Court set out the principles which was to become the ‘standard jurisprudential approach’ on the matter in later years. The Court held 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 does not … embody an obligation on the Government to impart such information to the individual’. Subsequently, in a series of judgments the Court found that there had been an interference with a right protected by Article 10 § 1 in situations where the applicant was deemed to have had an established right to the information under domestic law, in particular based on a final court decision, but where the authorities had failed to give effect to that right (see paragraph 131 of the judgment). The majority concludes that this development did not represent a departure from, but rather an extension of, the principles espoused in the Leander, Gaskin, Guerra and Others and Roche line of case-law (the Leander principles) in that it referred to situations where one arm of the State had recognised a right to receive information but another arm of the State had frustrated or failed to give effect to that right.

I see no reason in the present case to state a viewpoint on this analysis of the Court's case-law, as one may take different views on whether this approach is consistent with Article 10 of the Convention (see, for example, the dissenting opinions of my colleagues Judges Mahoney and Wojtyczek in the case of Guseva v. Bulgaria, no. 6987/07, 17 February 2015, quoted below). It suffices here to point out that this line of case-law is not applicable in the present case, as the applicants did not have any right to disclosure under Hungarian law, given that their claims to that effect had been rejected by the domestic courts.

What is important, however, is that the majority in today's judgment goes on to say that concurrently with the aforementioned line of cases there ‘emerged a closely related approach’, namely that set out in the Társaság and Österreichische Vereinigung judgments, in which the Court recognised, subject to certain conditions, the existence of a limited right of access to information, as part of the freedoms enshrined in Article 10 of the Convention. The majority judgment then states that the fact that the Court has not previously articulated in its case-law the relationship between the Leander principles and these more recent developments ‘does not mean they are contradictory or inconsistent’. By referring to the ‘particular circumstances of the case’ the Court did not in the Plenary and Grand Chamber judgments, applying the Leander principles, ‘exclude the existence’ of a right to access information held by public authorities or a ‘corresponding obligation on the Government in other types of circumstances’ (see paragraphs 132-33 of the judgment). Here, the majority places great emphasis on the reference by the Court in the above cases to the ‘particular circumstances of the case’ and thus the personal nature of the information involved.

I understand my colleagues in the majority to be saying that these cases were in effect Article 8 access-to-information cases and did not therefore resolve the question of general access under Article 10 of the Convention. Hence, the argument is made that the Court's prior findings do not exclude the recognition of such a general right of access in cases where free-speech rights are directly implicated. In short, the Court concludes that the ‘time has come to clarify the classic principles’ (see paragraph 156 of the judgment).

I disagree for the following reasons.

It is clear that under the Court's case-law an individual has a strong right under Article 8 of the Convention to access private information pertaining to him held by public authorities (see, for example, Godelli v. Italy, no. 33783/09, 25 September 2012, §§ 68–72). As Lord Mance held for the majority of the UK Supreme Court in Kennedy (cited above, § 68), a claim for disclosure by a person of private information held by public authorities regarding him thus starts from a strong basis in the Convention. If such a claim can only be put under Article 8, there is no obvious reason to suppose that a claim for other non-private information is generally possible under Article 10.

Further, and importantly, in the Grand Chamber judgment in Guerra and Others v. Italy, the Commission had explicitly endorsed the right of access to information under Article 10. It is important to recall that that case was not a strictly personal, private-information case, since the local authorities in Guerra and Others had failed to provide residents with sufficient information on a potential health hazard arising from the presence of a chemical factory. The Grand Chamber explicitly declined this invitation to interpret Article 10 so expansively, but the Court's findings in the present judgment in effect mean that Guerra and Others should be understood to the effect that Article 10 of the Convention would provide an NGO or another so-called ‘‘public or social watchdog’, but not the residents themselves, with the right to request the exact same information from the local authorities in Italy, in an attempt to impart an opinion to the public on health hazards arising from dangerous industries.

That cannot logically follow in my opinion. Leander, Gaskin, Guerra and Others and Roche stand for the unambiguous proposition that Article 10 § 1 of the Convention does not grant a right of access to information, irrespective of whether the purpose of the requesting party lies at the core of political speech or is more private in nature, albeit still connected to other free-speech values connected to ‘individual self-fulfilment’, long recognised by the Court (see, for example, Lingens v. Austria, 8 July 1986, Series A no. 103, § 41).

In sum, the case-law in Leander, Gaskin, Guerra and Others and Roche, thus including no less than three Plenary and Grand Chamber judgments, was clear. As pointed out by the UK Supreme Court in Kennedy (cited above, § 63) they stand for the proposition that Article 10 of the Convention does not go so far as ‘to impose a positive duty of disclosure on Member States at the European level’. It is true that three of these cases (Leander, Gaskin and Roche) concerned private information, in respect of which the Court held that such a right could arise under Article 8 of the Convention. However, in all these cases, the ‘Court did not go on to leave open the position under [Article 10] or to say that it raised no separate question. Rather, it made clear that no right arose in the circumstances under [Article 10]’ (see UK Supreme Court in Kennedy, cited above, § 66).

What then of the more recent cases, namely Társaság and Österreichische Vereinigung, heavily relied upon by the majority in support of a ‘broader’ more extensive interpretation of Article 10? These judgments at Chamber level do not in my view have precedential value, as they were in direct conflict with the Leander line of Plenary and Grand Chamber case-law. These judgments might have had some precedential value for the present case had they examined directly the arguments advanced in the previous cases, in particular by analysing the wording of Article 10 § 1 of the Convention, its object and purpose and the preparatory work, which all clearly point in a different direction and support directly the Leander principles as I have explained above. However, there is not one word on these arguments in Társaság. In support of its finding that the Court had ‘recently advanced towards a broader interpretation of the notion of ‘freedom to receive information’’ (see § 35), the Chamber in Társaság refers only to the inadmissibility decision in Sdruženi Jihočeské Matky, a very weak source indeed, and one that can hardly be determinative today. In fact, there is not a single reference made to the Plenary and Grand Chamber judgments in Gaskin and Roche, and the reference to Guerra and Others (see § 36) is made in a context that is wholly irrelevant to the questions of principle involved in Társaság. Finally, as regards the subsequent judgment in Österreichische Vereinigung, it suffices to note that it merely endorses the approach in Társaság without further comment.

As regards other cases where a right of access to information under Article 10 of the Convention has been recognised, such as Kenedi, Youth Initiative for Human Rights, Gillberg, Roşiianu v. Romania and Guseva v. Bulgaria (see full references in the judgment), these are cases where there was an established right to the information under domestic law. They are thus clearly not relevant for the purposes of the present case, as there was no right of access recognised for the applicants at domestic level. Furthermore, in Gillberg the Grand Chamber reiterated with approval the general principles from Leander. At the same time, however, the Grand Chamber stated that domestic rights to access information could give rise to an entitlement under Article 10 (see § 93). Again, as I have explained, that is not the case here.

In sum, the prior case-law of this Court, notably Plenary and Grand Chamber judgments, is to be understood as excluding a right of access to information held by public authorities under Article 10 § 1 of the Convention. To the extent that later developments in two Chamber judgments contradict the clear findings set forth in the consistent line of Plenary and Grand Chamber judgments setting out and confirming the Leander principles, they do not in my view have precedential value in the light of Article 43 of the Convention, which provides for the interpretive authority of the Grand Chamber. It is inconsistent with the fundamental guarantee of legal certainty, and detracts from the member States’ ability to secure the rights provided for by the Convention under Article 1 and the principle of subsidiarity, if Chambers of this Court do not faithfully apply settled Grand Chamber case-law. In the understated words of the UK Supreme Court: ‘It is not helpful for national courts seeking to take into account the jurisprudence of the European Court of Human Rights to have different Section decisions pointing in directions inconsistent with Grand Chamber authority without clear explanation’ (see Kennedy, cited above, § 59).

In conclusion it is, quite frankly, impossible to accept that the majority are merely engaged in ‘clarification’ of the Leander principles. On the contrary, let it be clear, today the Court's settled Plenary and Grand Chamber case-law in Leander, Gaskin, Guerra and Others and Roche has, in fact, been overruled.

As neither the ordinary meaning of Article 10 § 1 of the Convention, its object and purpose, the preparatory work nor prior-case law can sustain the findings of the Court, the main argument advanced for the recognition of a right of access to information held by public authorities is, in substance, based on the living instrument doctrine and developments in comparative and international law (see paragraphs 138-48 of the judgment).

The Court finds that as the vast majority of member States of the Council of Europe have enacted primary legislation recognising a statutory right of access to information and/or official documents held by public authorities, the Court is satisfied that a ‘broad consensus exists … on the need to recognise an individual right of access to State-held information so as to enable the public to scrutinise and form an opinion on any matters of public interest, including on the manner of functioning of public authorities in a democratic society’. Further, referring to Article 19 of the ICCPR, the views of the United Nations Human Rights Committee and the UN Special Rapporteur on Freedom of Opinion and Freedom of Expression, the Court finds that a ‘high degree of consensus has also emerged at the international level’. However, while admitting that these conclusions at the international level were adopted in regard to Article 19 of the ICCPR, the Court considers, notwithstanding a significant difference in the wording, which the Court acknowledges, that their relevance for the present case derives from the fact that the right of access to public-interest data and documents is considered ‘inherent in freedom of expression’. The Court also refers, in support of its findings, to Article 42 of the Charter of Fundamental Rights of the European Union, Regulation (EC) No. 1049/2001 and the 2009 Council of Europe Convention on Access to Official Documents, although the latter has only been ratified by seven member States. It concludes that these norms ‘[denote] a continuous evolution towards the recognition of the State's obligation to provide access to public information’. In the Court's view, the Council of Europe 2009 Convention ‘indicates a definite trend towards a European standard, which must be seen as a relevant consideration’ (see paragraphs 139-45 of the judgment).

Once again, the Court's reasoning here is problematic on several levels.

First, it must be reiterated that the application of the living instrument doctrine, which is the basis of the Court's reference to a purported ‘broad consensus' within Europe, depends on the existence being demonstrated of a consensus or convergence in practice in the Member States as to the right in question. Furthermore, in particular where such a right seems to be excluded by the wording of the Convention, this consensus must manifest an understanding or, at least, an implicit acceptance by the member States of their enhanced Convention obligations.

Although it is true that almost all member States of the Council of Europe have adopted freedom-of-information legislation at the level of primary legislation, the issue here is more complex, the reason being that a consensus has not emerged accepting that a general right of access to public documents, based on the right to freedom of expression, has attained constitutional status, thus limiting democratic control of its scope and substance in each and every member State. On the contrary, as is clearly manifested by the great reluctance of Member States to ratify the 2009 Council of Europe Convention on Access to Information, States seem to want to retain their margin of democratic discretion in this area. For the Court to find, irrespective of the fact that only seven member States have to date ratified the 2009 Convention, that the mere adoption of the 2009 Convention at the level of the Council of Europe ‘indicates a definite trend towards a European standard’ is debatable to say the least. It is important to recall why the Council of Europe considered it necessary in the first place to draft and then propose the adoption of a Convention on access to official documents. The reason was, as explained in the Explanatory Report to the 2009 Convention, that Article 10 of the European Convention on Human Rights does not guarantee a general right to access to official documents. Today's judgment thus severely limits the significance of the 2009 Convention, and in fact deprives the member States of the power to decide for themselves, based on their own sovereign and democratic will, whether they wish to be bound by obligations in this area at the international level.

In the light of the above, I consider that compliance with the strict conditions for reliance on the living instrument doctrine, based on the existence of a European consensus for the constitutional and Convention-based recognition of a fundamental right of access to information held by public authorities, has not been demonstrated in the present case. I reiterate that to the limited extent that access to public information has constitutional status in the member States it is, with very few exceptions, based on a special constitutional provision providing for that right. It is not based on the general right to free speech, as pleaded by the applicants and accepted by the majority in the present case.

Second, with regard to the Court's reference to Article 42 of the EU Charter of Fundamental Rights, it suffices to note that the Charter makes a clear distinction between freedom of expression and access to official documents held by EU organs, the former protected by Article 11 § 1, which is textually the same as Article 10 § 1 of the Convention, and the second provided by Article 42 of the Charter on access to official documents, as noted by the Court. The Court's reference to Article 42 of the EU Charter thus seems actually to prove the opposite of what is intended by the majority in its reasoning. In other words, due to the fact that access to official documents is not inherent in freedom of expression, the EU Charter provides for that right in a special provision that is distinct from the provision guaranteeing free speech. In addition, it is important to stress that Article 42 of the Charter only covers access to documents held by EU institutions and bodies. Despite the extensive regulatory powers conferred by the Treaty on the Functioning of the European Union, member States of the latter have opted, as regards a wider right of access to documents held by national authorities, to retain their margin of discretion and legislative competence in this area.

Lastly, as regards the Court's references to other international-law materials, in particular Article 19 of the ICCPR and accompanying UN instruments, I again emphasise that it is crucial that, unlike Article 10 § 1 of the Convention, the ICCPR explicitly guarantees the freedom to seek information, which is the textual foundation for the right to access public documents, as confirmed by the UNHRC (see paragraphs 37–41 of the judgment). In that sense, the right to access official documents is, indeed, inherent in the freedom of expression as guaranteed by Article 19 of the ICCPR. But that is not the case for Article 10 § 1 of the Convention. To the extent that the Court refers to other general soft-law international instruments, recommendations and reports of the UN Special Rapporteur, these can only be assessed in this context as ‘general aspirations’ at the level of policy. However, the issue before the Court is, as rightly noted in the same context by the UK Supreme Court in Kennedy (cited above, § 99), whether Article 10 ‘contains a concrete decision to give general effect to them at international level enforceable without any more specific measures and without any controlling qualifications and limitations at that level’. I find nothing in the majority's reasoning in today's judgment that is persuasive enough to conclude that Article 10 § 1 can be interpreted in that manner.

Finally, let me say a few words about the practical consequences of today's judgment, on the ground that when assessing whether the time has come to recognise a novel right under the Convention, it is important to consider the ramifications of such recognition at national level, as well as whether this Court can develop the scope and content of the right in question in a foreseeable and workable manner in future cases.

The independent right to access information held by public authorities under Article 10 § 1 of the Convention, without the person or entity in question having such a right under domestic law, will in my view create numerous conceptual and practical problems for the Court in the future. Let me just mention three:

First, it is imperative to understand the nature and structure of the vast majority of freedom-of-information legislation in force in the member States. Access limitations under domestic law can be either absolute or conditional (see, for example, Pävi Tiilikka, ‘Access to Information as a Human Right in the Case Law of the European Court of Human Rights’, (2013) 5 (1) JML 79–103, p. 83). Once recognised under Article 10, a right of access will generally have to be balanced with either the privacy interests of non-disclosure under Article 8 of the Convention, when the requested information is of a personal nature, or in other situations with public-interest considerations under Article 10 § 2. These balancing exercises will not necessarily coexist harmoniously with domestic norms providing for absolute limitations on public access to documents in, for example, the fields of national security, law enforcement or data protection. These difficulties can in fact be seen in stark terms by the manner in which the Court applies its reasoning to the circumstances of the present case.

The applicants' request for information on public defenders in criminal proceedings was rejected by the domestic courts on the basis of the Hungarian Data Act (see paragraph 32 of the judgment), which provides that ‘personal data’, held by public authorities is not amenable to public access unless very limited exceptions are found to apply, which was not considered to be the case at domestic level. Thus, the Data Act prevented the domestic courts from examining the potential public-interest nature of the information (see paragraph 176 of the judgment), and this is an important element in the Court's reasoning in finding a violation of Article 10 on the facts of the case (see paragraph 199). In other words, the practical consequences of the Court's judgment is that member States of the Council of Europe may now have to change fundamentally their national freedom-of-information laws in order to take account of the requirements of Article 10 of the Convention that logically flow from today's judgment. They will also, where relevant, have to reconcile those requirements with national and EU data-protection legislation.

In relation to this point, it is worth noting that the majority's findings in paragraph 194 of the judgment are also quite problematic. The Court rightly considers that the request made by the applicants at domestic level for the names of the public defenders related to ‘personal data’. However, in the Court's view, given that the data ‘related predominantly to the conduct of professional activities in the context of public proceedings’, the Government had not demonstrated that the disclosure of the data requested for the specific purposes of the applicant's inquiry could have affected the public defenders' enjoyment of their right to respect for private life within the meaning of Article 8 of the Convention. In my view, this line of reasoning is not in conformity with the Court's settled case-law in the field of data protection, in which the Court has consistently interpreted the scope of Article 8 § 1 of the Convention in a broad manner, so as to encompass the ‘storing of data relating to the ‘private life’ of an individual’ and in that regard has further found that there ‘is no reason of principle to justify excluding activities of a professional or business nature from the notion of ‘private life’’ (see Amann v. Switzerland [GC], no. 27798/95, § 65, 16 February 2000, and, more recently, Uzun v. Germany, no. 35623/05, § 48, 2 September 2010). In the Grand Chamber judgment in Amann, cited above, § 65, the Court referred in this regard to Article 2 of the Council of Europe's Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which defines personal data as ‘any information relating to an identified or identifiable individual’ (see also Uzun, cited above, § 48).

Therefore, until today, the mere fact that personal data, stored by public authorities, had to relate to the public activities of the person concerned has not had a bearing on the threshold question of whether Article 8 is, as such, applicable. That issue has been taken into account in the merits assessment of whether, on the particular facts of a case, disclosure of such data constitutes a proportionate interference with privacy rights under Article 8 § 2 of the Convention. The majority judgment in the present case calls into question this whole line of the Court's case-law and may also prove difficult to reconcile with ongoing legislative and jurisprudential developments in the field of data protection in European Union law (see Article 1 (1) of Directive 95/46/EC and Regulation (EU) 2016/79 on the protection of natural persons with regard to processing of personal data and the free movement of such data).

The second problem with the Court's finding to the effect that a right of access to official documents flows independently from Article 10 is that the Court may in the future have to create autonomous Convention concepts of what constitutes a ‘public authority’ or a ‘quasi-public authority’, or even define the notion of an ‘official document’. What about private entities holding official documents on the basis of outsourcing or contract relations between those entities and Government? In fact, and again using the prescient words of the UK Supreme Court in Kennedy (cited above, § 94), interpreting Article 10 § 1 to include a duty of governmental disclosure of all matters of public interest ‘leads to a proposition that no national regulation of such disclosure is required at all, before such a duty arises. Article 10 would itself become a European-Wide Freedom of Information law. But it would be a law lacking the specific provisions and qualifications which are in practice debated and fashioned by national legislatures according to national conditions and are set out in national Freedom of Information statutes’. That, it seems to me, is the inevitable consequence of today's judgment.

Third, and finally, the right of access recognised today is, the Court tells us, primarily acquired by a ‘person seeking access to information … with a view to informing the public in the capacity of a public ‘watchdog’’ (see paragraph 168 of the judgment). In other words, although the general right to freedom of expression under Article 10 § 1 applies to ‘everyone’, the application of the novel right to access official information is determined by whether the person requesting such documents is doing so to foster expressive activity in the public interest.

This begs the question. Why is the right so limited? What about an interested person who wishes, for example, to obtain information on certain budgetary proposals for improved housing for the homeless? Just for himself, to further his own education and civic-mindedness, not for anyone else, and not with any intention to disseminate further his thoughts on the issue or his opinions. Would he not benefit from the novel right under the Convention recognised in today's judgment? If not, why not, considering that freedom of expression under Article 10 of the Convention is, under the Court's well-established case-law, in no way limited to fostering political speech or public debate, but is also meant to enhance individual self-fulfilment?

As correctly noted by the UK Supreme Court in Kennedy (cited above, § 93), ‘many organisations and individuals, including those seeking information for research or historical or personal or family purposes, may have legitimate and understandable interests in enforcing a domestic right to information’. The ‘occupation of [the role of a social watchdog] cannot sensibly represent any sort of formal pre-condition, before a breach of a domestic duty of disclosure engages [Article 10 § 1 of the Convention]’. My colleague Judge Wojtyczek made this same point in even starker terms in his dissenting opinion in Guseva v. Bulgaria (cited above), where he stated that this approach ‘implicitly differentiates between two categories of legal subjects: journalists and non-governmental organisations on the one hand, and all other persons on the other. The first category enjoys stronger protection in respect of the right of access to information, whereas the second category does not enjoy the same protection. All this leads to an implicit recognition of two circles of legal subjects: a privileged elite with special rights to access information, and the ‘commoners’, subjected to a general regime allowing more far-reaching restrictions’.

In sum, although the right to access information held by public authorities, as found by the Court today, is supposed to be primarily applicable only to those persons or entities that are in the business of ‘informing the public debate’, so-called public or social ‘watchdogs’, in the words of the Court, there is no conceptual limitation coherent enough under Article 10 of the Convention to stop this right from being in the future applied in reality as a general right of access to official documents for any person seeking such information from Government. In fact, this reading of today's judgment fully conforms with the Court's own stated reasoning at paragraph 168, where the Court explicitly declares that the newly established Convention right of access to official documents does not exclusively apply to NGOs and the press. On the contrary, the right not only extends to ‘academic researchers’ and ‘authors of literature on matters of public concern’, but also to ‘bloggers and popular users of the social media’ who may also be ‘assimilated’ with public watchdogs. It goes without saying that the potential reach of these categories, which now enjoy an independent Convention right of access to official documents, will prove exceedingly difficult to circumscribe in any sensible manner.

I conclude where I started.

I fully understand what has inspired my colleagues in the majority to seek recognition of a right of access to information held by public authorities. However, after comprehensive review of and reflection on all the available and relevant legal arguments, and after an assessment of the practical consequences of such a finding, I cannot but conclude that the applicant's complaint should be dismissed as incompatible ratione materiae with the Convention.