The European Court of Human Rights has issued what I think is its second decision finding a violation of Article 10 as a result of a failure by domestic authorities to grant access to documents held by a public body (Kenedi v. Hungary, 31475/05).
As in the previous case (Szabadságjogokért v. Hungary, Application no.
37374/05), the defendant State is Hungary and the Hungarian government chose not to dispute that it had interfered with the applicant's Article 10 (freedom of expression) rights.
The applicant, a historian, had requested access to certain communist-era documents from the Ministry of the Interior in order to further his historical research. In response, the Ministry retroactively classified the documents in question and denied access. In response, the applicant obtained a court judgment granting him access to the documents in question, but the Ministry seems to have pursued every imaginable legal avenue to contest this decision, ultimately with no success.
Nevertheless, the applicant did not receive access to the document.
The ECHR finds that "the obstinate reluctance of the respondent State's authorities to comply with the execution orders was in defiance of domestic law and tantamount to arbitrariness … For the Court, such a misuse of the power vested in the authorities cannot be characterised as a measure “prescribed by law”." Accordingly, there was a violation of Article 10.
The Court also finds a violation of Article 6 (right to fair trial), as the length of the proceedings was excessive in light of "the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute".
I think there are two interesting angles in this case. First, it seems the Court is not only concerned by the failure of the Ministry to comply with the Hungarian Supreme Court's final decision in this matter, but also by the fact that the Ministry pursued its unmeritorious case so aggressively. The Court speaks of "essentially obstructive …
behaviour" and the "misuse of the power vested in the authorities". It seems that the use of procedural devices to delay access to information in a fairly clear-cut case can constitute a violation of Article 10.
The second is the finding under Article 6, which is connected. The Court finds that the length of the proceedings - ten and a half years - was excessive in light of the relevant circumstances. As most of us will know, slowness is one of the biggest problems with access to information regimes across Europe, so this decision confirms the possibility of challenging undue delays through Article 6. Of course, even one year will be much too long for many requesters, and it is not clear from this decision whether the Court would recognise the need to set a very strict standard in access to information cases.
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