Daniel Simons wrote:
Very exciting, congratulations indeed to all those involved!
This appears to be the breakthrough we had all been waiting for - even though the Hungarian government (surprisingly) did not dispute that there had been an interference with the applicant's Article 10 rights, the Court expressly recognises "an interference with the applicant's rights enshrined in Article 10 § 1 of the Convention".

Although I have not read the judgment closely yet, the reasoning seems about as orderly as a bowl of spaghetti. The Court tries to pretend that it is not really departing from its earlier jurisprudence on freedom of information, according to which there is no right to receive information from a person who is not prepared to impart it. Allegedly this is still true, but where the State enjoys an "informational monopoly" (which is usually the case when an FOI request is filed) it may not use its "censorial power" to withhold documents that are "ready and available" and do not "require the collection of any data by the Government". This, in the Court's view, does not amount to a "general right of access to official documents", although, as you all know, it is rather hard to find any FOIA which requires the collection of any data by the government.

It seems that, rather than extracting itself from the mess the Court had created by recognising a limited right of access to information under Article 8, it has now created an even more contradictory and incomprehensible position under Article 10. Still, the outcome is really an excellent step forward, especially since the case concerns access to judicial documents, which are not covered by the FOIA in many countries. For those countries which have ratified the European Convention on Human Rights, that position has now become less tenable.


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