Case Law, Strasbourg: Guseva v Bulgaria, More freedom of information under Article 10 (with dissents) – Hugh Tomlinson QC

28 02 2015

Vidin-danube-photoIn the case of Guseva v Bulgaria (Judgment of 17 February 2015) a Chamber of the Court of Human Rights has again recognised an Article 10 right to access to information and found a violation where a public authority had failed to provide public interest information despite court orders.  There were, however, two dissenting judgments on this issue, including one from the UK judge.

Facts

The applicant is a Board member of the Animal Protection Society in Vidin, Bulgaria. Between April 2002 and June 2003 she submitted three requests to the Mayor of Vidin for information related to the treatment and management of stray animals. The Mayor refused to provide the information requested, referring either to objections of the contracted companies involved in the process or to administrative procedures. The applicant challenged these refusals, eventually obtaining judgments in support of her three requests from the Supreme Administrative Court in 2004.

However, applicant had still not received the information and she made an application to Strasbourg relying on Article 10 of the Convention.  She complained that the mayor’s failure to provide the information she requested had amounted to a violation of her right to receive and impart information of public interest. She also relied on Article 13 (right to an effective remedy) in conjunction with Article 10, complaining that she had not had an effective remedy for her complaint as the rulings of the Supreme Administrative Court had not been enforced.

Judgment

The majority of the Fourth Section noted that Article 10 did not guarantee a general right of access to information.  However, it said that particularly strong reasons must be provided for any measure limiting access to information which the public has a right to receive [36].

Furthermore, it noted that

“in cases where the applicant was an individual journalist and human rights defender, it has held that the gathering of information is an essential preparatory step in journalism and is an inherent, protected part of press freedom (see Shapovalov v. Ukraine, no. 45835/05, § 68, 31 July 2012; Dammann v. Switzerland, no. 77551/01, § 52, 25 April 2006)” [37].

The hindering of access to information which is of public interest  “may discourage those working in the media, or related fields, from pursuing such matters”. As a result, they may no longer be able to play their vital role as “public watchdogs” and their ability to provide accurate and reliable information may be adversely affected”

Reference was made to the case of Kenedi v. Hungary (no. 31475/05, 26 May 2009) which concerned the enforcement of a court decision authorising access to archived documents.  Furthermore, it was suggested that in Gillberg v. Sweden (no.41723/06, 3 April 2012 [93]) the Grand Chamber had held that a domestically recognised right to receive information could give rise to an entitlement under Article 10. The Government did not dispute the applicability of Article 10 to the facts of the case.

The Court therefore held that

the gathering of information with a view to its subsequent provision to the public can be said to fall within the applicant’s freedom of expression as guaranteed by Article 10 of the Convention [41].

In the present case, the applicant had sought the information to inform the public in the context of her work for the association about the treatment of stray animals.  By not providing her with the information the mayor interfered in the preparatory stage of the process of informing the public.  As a result, her right to impart information was impaired [55].

The interference with the applicant’s rights had no legal basis in domestic law and was, therefore, not “prescribed by law”.  There was a violation of Article 10.

The majority also held that there had been a violation of Article 13 in conjunction with Article 10 but that it was not necessary to examine the complaint under Article 6 separately.

The UK Judge, Judge Mahoney, dissented on the basis that

“there is a line of jurisprudential authority which unambiguously rules out reading into freedom of expression as protected by Article 10 any right of access to information from an unwilling provider and any corresponding positive obligation on public authorities to gather and disclose information to the general or specialised public”.

Without going into the merits of whether the time has come to revisit the existing case-law, he indicated that he preferred “not to be associated with reasoning that, in effect, reverses the clear direction of existing Grand Chamber case law”.

The Polish Judge, Judge Wojtyczek, also dissented on the same point – arguing that no positive obligation to provide information could be imposed on a State under Article 10.

Judge Wojtyczek also criticised the distinction made by the majority between “two categories of legal subjects: journalists and non-governmental organisations on one hand, and all other persons on the other”:

“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”.

He noted that the Court’s case law on the rights of journalists and the press developed in the 1970s and 80s when the press enjoyed a quasi-monopoly in gathering and imparting information.  He suggests that the influence of press has declined

“It is no exaggeration to say that today we, the citizens of European States, are all journalists. We (at least many of us) directly access different sources of information, collect or request information from public authorities, impart information to other persons and publicly comment on matters of public interest. … We are all social watchdogs who oversee the action of the public authorities. Democratic society is – inter alia – a community of social watchdogs. The old distinction between journalists and other citizens is now obsolete. In this context, the case-law hitherto on the functions of the press seems out of date in 2015 and should be adapted to the latest social developments”.

He argued that access to information should not depend on the status of the person requesting information, saying

“In my view, it is irrelevant whether someone needs information for any selfish purpose or in order to participate in public debate with a view to promoting the common good”.

Comment

This case is the latest in a series of Chamber decisions in which a limited Article 10 right to access information has been recognised.  The decisions of the Second Section in Társaság a Szabadsagjogokert v Hungary (2011) 53 EHRR 3) and Kenedi v Hungary (Judgment of 26 May 2009) were recognised by the Court of Appeal as giving rise to a right to access information (see generally, Antony White’s 2010 post “The emerging media Article 10 right to receive information from public authorities”).

However, despite subsequent Chamber judgments to similar effect (see, eg, Österreichische Vereinigung v. Austria (application no. 39534/07 and my case comment), the majority of the UK Supreme Court rejected the argument that there was such an Article 10 right (see Kennedy v Charity Commission [2014] UKSC 20).  The claimant in that case, Times journalist Dominic Kennedy, has made an application to Strasbourg and asked for it to be referred to the Grand Chamber.

This decision shows that there is a clear difference of view between Strasbourg judges on the expansion of Article 10 to cover access to information. The majority were prepared to accept the reasoning of the earlier cases and to recognise a right to access to information in circumstances where journalists or NGOs were seeking it for “public interest” purposes and access to information was recognised in domestic law.  However, the two dissenters (including the UK judge who will be party to any decision in Kennedy) took the view that Grand Chamber decisions meant that no such right should be recognised.

The scene is now set for the long awaited definitive Grand Chamber decision on the question of “access to information”.  While Judge Mahoney reserved his position on the issue of principle, Judge Wojtyczek was strongly against expanding the remit of Article 10, saying that he was

“not persuaded that filling lacunae in the protection of the democratic rule of law by way of an over-extensive interpretation of the Convention is the most effective strategy for ensuring the protection of human rights and promoting democracy. Such an approach exacerbates the “democracy deficit” in Europe”

It, nevertheless, seems likely that the “direction of travel” towards a full blown right to access of information will be supported by the Grand Chamber when the matter is eventually considered by it.

Finally, Judge Wojtyczek casts doubt on the privileged position accorded to the press and public interest NGOs under the Convention, on the basis that we are “all journalists” now.  Although there are different views as to what extent the influence of the “mainstream media” has declined, there is considerable force in the point that “access to information” cannot depend on status.  The Freedom of Information Act 2000 is “applicant blind” – everyone has an equal right to access information.  If a right to access to information is to be developed from Article 10 it surely must be one which is available to every citizen, not just to journalists and campaigners.


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