Submission to the CoE on the non-execution of freedom of information judgments
Non-execution of domestic court judgments by state authorities in freedom of information cases is a severe problem in Hungary. This violates the European Convention on Human Rights. In our submission with the Hungarian Civil Liberties Union to the Council of Europe, we show the systemic causes of non-compliance with judgments, and propose recommendations to ensure access to public interest data.
In 2009, the European Court of Human Rights (ECtHR) issued a judgment in the Kenedi v. Hungary case. This case originated in a freedom of information lawsuit brought by the applicant against the Ministry of Interior because the ministry refused to grant him access to documents concerning the Hungarian secret services for the purpose of historical research, and then failed to comply with the domestic court judgment authorising him to access the documents. The ECtHR ruled that the excessive length of the ensuing enforcement proceedings in respect of the judgment authorising the applicant’s access to documents had violated his rights under Article 6(1) of the European Convention on Human Rights; concluded that the applicant’s right to freedom of expression (Article 10 of the Convention) had been violated on account of the continued resistance of the authorities to grant the applicant access to the above documents; and that the lack of an effective remedy in this respect violated Article 13 in conjunction with Article 10 of the Convention.
This judgment has been pending execution since 2009. However, the deficiencies it signalled have not disappeared. On the contrary: the non-execution of domestic court judgments by state authorities in freedom of information cases, along with the lack of effective enforcement of judgments in these cases remains a severe problem in Hungary. This was recently confirmed also by the European Commission in the Hungary chapter of its 2022 Rule of Law Report, in which the Commission pointed out as an issue of concern that “[t]here are cases where state bodies refuse to execute decisions of the domestic courts; several of these concern access to documents”.
In their submission to the Committee of Ministers of the Council of Europe in its capacity of supervising the execution of ECtHR judgments, the Hungarian Civil Liberties Union (HCLU) and the Hungarian Helsinki Committee (HHC) argue in relation to the Kenedi v. Hungary case that the Hungarian Government has not taken the necessary general measures to prevent the occurrence of similar violations in the future and so has not executed the judgment.
In our view, there are systemic causes behind the non-compliance with freedom of information judgments, such as the lack of effective and genuinely coercive enforcement tools. Criminal procedures launched for non-compliance with freedom of information judgments under the respective provisions of the Criminal Code rarely lead to indictments. Furthermore, the proceedings for enforcing court decisions suffer from deficiencies in general, reducing their efficiency and accessibility. Finally, in contrast to what is suggested by the Government in its action report submitted in the case, the excessive length of enforcement proceedings and the lack of an effective remedy in that regard are not being addressed in the framework of implementing the judgments in the Gazsó group of cases.
The full NGO submission is available here:
Rule 9(2) communication to the Committee of Ministers in the Kenedi v. Hungary case