The Hungarian authorities’ refusal to provide the HHC with information relating to ex officio defence counsels was in breach of the right of access to information
The Grand Chamber of the European Court of Human Rights ruled in its judgment delivered on 8 November 2016 that Hungary violated the Hungarian Helsinki Committee’s right to freedom of expression when the police refused to disclose the names of ex officio defence counsels and the number of cases in which they were appointed in a given year. The importance of the judgment goes beyond the Hungarian case: the Grand Chamber, consisting of 17 judges, confirmed for the first time that the European Convention on Human Rights protects the right of access to information.
The background of the case
In the course of its researches, the Hungarian Helsinki Committee (Magyar Helsinki Bizottság, HHC) came to the conclusion that the Hungarian system of ex officio appointed defence counsels does not function adequately. One of the reasons for this is that certain police headquarters tend to appoint those defence counsels more frequently who do not “make the investigation more difficult”. This may result in a dependence of defence counsels on the authorities, which endangers the defendants’ right to effective defence. In order to support these conclusions, the HHC submitted an FOI request to 28 police headquarters in 2009, requesting them to submit the names of the ex officio defence counsels appointed by them in the previous year, and the number of their appointments received. The data obtained demonstrated the disproportionate practice of appointments: some attorneys received more hundreds of appointments per year, and at certain police headquarters the same attorney was appointed in more than 80% of the cases.
Public data of public interest
17 police headquarters provided the requested data instantly, and in the almost all of the lawsuits launched again the police headquarters denying access to the information the courts decided in favour of the HHC, agreeing with the argument of the HHC that the names of ex officio appointed defence counsels and the number of their cases was public data of public interest. However, three cases ended up before the Supreme Court, which ruled that the data requested were not public, because they were the personal data of the ex officio appointed defence counsels.
In the view of the HHC, these decisions violated the right to freedom of expression as included in Article 10 of the European Convention on Human Rights. Therefore, in 2011, it submitted applications to the European Court of Human Rights (ECtHR). The Grand Chamber of the ECtHR, consisting of 17 judges, held a hearing in one of these cases on 4 November 2015 and delivered its judgment on 8 November 2016.
The case was decided on by the Grand Chamber
It is an important aspect that the case was decided on by the Grand Chamber, after the respective Chamber (i.e. the first instance) relinquished jurisdiction in favour of the Grand Chamber. This may be done where a case pending before a Chamber raises a serious question affecting the interpretation of the European Convention on Human Rights, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the ECtHR. Thus, this step also showed the significance of the case, considering that even though the ECtHR treated the right of access to information in more of its earlier decisions as a right protected by the Convention, the Grand Chamber has not took a stand on the issue yet.
The case gained a significant interest also on an international level: both other European NGOs and the Government of the United Kingdom submitted a third party intervention in the case, and the representative of the latter also addressed the ECtHR at the Grand Chamber hearing, similarly to the Hungarian Government and the applicant HHC.
The main arguments of the HHC were the following:
- Denying access to the information was not in compliance with the respective Hungarian legal provisions, because the data requested qualified as “public data of public interest”.
- Restricting access to the information had no legitimate aim: it could not have been justified e.g. by the ex officio appointed defence counsels’ right to respect for private life, since the data requested did not touch upon the activities of the defence counsels in the given cases, or information falling under attorney-client privilege.
- NGOs, similarly to the press, operate as “social watchdogs”. Denying access to the requested data hindered the HHC in performing this role, while, in addition, the police held an “information monopoly” over the data requested.
The arguments of the Hungarian Government
The Hungarian Government argued that the right of access to information does not flow from the text of the European Convention on Human Rights. In addition, denying access to the data in question was in their view in compliance with the Hungarian legal provisions and it was necessary in order to protect the rights of ex officio appointed defence counsels.
Thus, the ECtHR had to take a stand also regarding the question whether Article 10 of the European Convention on Human Rights on the freedom of expression protects the right of access to information or not. In the view of the HHC, the right of access to information is the precondition of holding and expressing an opinion, thus it should be covered by Article 10.
In its judgment delivered in the case on 8 November 2016, the ECtHR ruled that Hungary violated the HHC’s right to freedom of expression, thus applied Article 10 to a freedom of information case. The ECtHR concluded, among others, the following:
- The Court noted that the subject matter of the survey concerned the efficiency of the public defenders system, an issue that was closely related to the right to a fair hearing, a fundamental right in Hungarian law and a right of paramount importance under the Convention, and pointed out that the NGO had wished to explore its theory that the pattern of recurrent appointments of the same lawyers was dysfunctional.
- The ECtHR found that the ex officio appointed defence counsels’ privacy rights would not have been negatively affected had the HHC’s request for the information been granted, because although the information request had admittedly concerned personal data, it did not involve information outside the public domain.
- The ECtHR considered that the Government’s arguments were not sufficient to show that the interference complained of had been “necessary in a democratic society” and held that, notwithstanding the discretion left to the respondent State (its “margin of appreciation”), there had not been a reasonable relationship of proportionality between the measure complained of (refusal to provide the names of the ex officio defence counsel and the number of times they had been appointed to act as counsel in certain jurisdictions) and the legitimate aim pursued (protection of the rights of others).
Documents related to the case:
- The original application submitted by the HHC in 2011 (in English)
- Statement of facts of the case by the European Court of Human Rights
- The comprehensive written submission of the HHC, submitted to the Grand Chamber in September 2015
- The response of the Hungarian Government (in English)
- The third party interventions submitted in the case (in English):
(1) joint third party intervention of MLDI, Campaign for Freedom of Information, ARTICLE 19, Access to Information Programme and the Hungarian Civil Liberties Union,
(2) third party intervention of Fair Trials International,
(3) third party intervention of the a Government of the United Kingdom
- Video recording of the hearing before the Grand Chamber
- Judgment of the European Court of Human Rights, delivered on 8 November 2016