‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 19 February 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 8

Mayor’s failure to provide information amounted to a violation of right to receive and impart information of public interest - Guseva v. Bulgaria - Violation of Article 10 - Ms Guseva 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 she requested in each instance, referring either to objections of the contracted companies involved in the process or to administrative procedures. Ms Guseva challenged these refusals, eventually obtaining judgments in support of her three requests from the Supreme Administrative Court in 2004. However, Ms Guseva complains that she has still not received the information she sought. Relying in particular on Article 10 (freedom of expression) of the Convention, Ms Guseva 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.
53.  The Court recalls that it has consistently recognised that the public has a right to receive information of general interest. Its case-law in this field has been developed in relation to press freedom, the purpose of which is to impart information and ideas on such matters. The Court has emphasised that the most careful scrutiny on its part is called for when measures taken by the national authorities may potentially discourage the participation of the press, one of society’s “watchdogs”, in the public debate on matters of legitimate public concern (see Társaság a Szabadságjogokért, cited above, § 26 with references to Observer and Guardian, cited above, § 59; Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239; Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298; see also Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999-III, where the Court held that the vital public interest in ensuring an informed public debate on the question of animal treatment outweighed the fishermen’s interest).
54.  Furthermore, the Court has held that the function of creating various platforms for public debate is not limited to the press. That function may also be exercised by non-governmental organisations, whose activities are an essential element of informed public debate. The Court has accepted that non-governmental organisations, like the press, may be characterised as social “watchdogs”. In that connection their activities warrant similar protection under the Convention to that afforded to the press (see Társaság a Szabadságjogokért, cited above, § 27; Österreichische, cited above, § 34; Animal Defenders International [GC], cited above, § 103; Youth Initiative, cited above, § 20).
(-) 57.  The Court reiterates that an interference with the applicant’s rights under Article 10 § 1 will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. It should therefore be determined whether the interference was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph, and whether it was “necessary in a democratic society” in order to achieve those aims. More specifically in respect of the law, the Court has held that it has to be of a certain quality, namely that its provisions should be clear and accessible, and the consequences of its application foreseeable (see, among other authorities, Müller and Others v. Switzerland, 24 May 1988, § 29, Series A no. 133). 58.  Turning to the present case, the Court notes that at the time of the facts the mayor’s failure to provide the information after the final judgments ordered him to do so had no legal basis. On the contrary, according to the letter of the applicable law, final administrative court judgments were subject to immediate enforcement (see paragraph 24 above). The Court also notes that on this point the Supreme Administrative Court had held that, as the law did not provide time-limits within which the administrative body had to comply with final judgments, the decision as to when the judgment should be enforced was entirely in the hands of the administrative body concerned (see paragraph 25 above). The Court further observes that, similarly to the situation in Társaság a Szabadságjogokért, cited above, § 36, the information in the present case was in the mayor’s exclusive possession and readily available. 59.  Given that enforcement was due in domestic law (see paragraph 24 above), the failure of the mayor to act in order to implement the judgments was in breach of the law (see, mutatis mutandis, Youth Initiative, cited above, §§ 25-26, as well as Kenedi, cited above, § 45, in both of which the Court concluded that the obstinate reluctance of the administrative authorities to provide the information ordered in a judgment was in defiance of domestic law). Notwithstanding this, the national judicial practice had accepted that the law itself provided no clear time-frame for enforcement and the question was left to the good will of the administrative body responsible for the implementation of the judgment (see paragraph 25 above). The Court finds that such a lack of clear time-frame for enforcement created unpredictability as to the likely time of enforcement, which, in the event, never materialised. Therefore, the applicable domestic legislation lacked the requisite foreseeability capable of meeting the Court’s test under Article 10 § 2 of the Convention. 60.  In the light of the above, the Court is satisfied that the interference was not “prescribed by law” within the meaning of Article 10 § 2 of the Convention. It is therefore not necessary to examine further whether the remaining elements were met. 61.  There has accordingly been a violation of Article 10 of the Convention.
12.  To conclude, if, as I believe, Article 6 § 1 is applicable to the facts of the present case and is to be held to have been violated, there is no need to go into the complaint raised under Article 10 and, thus, into the issue whether any right of access to public information and, correspondingly, any positive obligation on public authorities to gather, disclose or disseminate information should be read into the wording of Article 10 of the Convention. That issue, which is now somewhat problematic in view of the lack of clarity introduced by some recent chamber judgments, including the present one, may well need to be elucidated in future cases – but preferably after full argument by the parties, careful consideration by the Court and a transparent reasoning that, rather than eluding, adequately addresses the explicit statements of general principle contained in the existing Leander line of authority as confirmed in Gaskin, Guerra and Roche.
7.  The majority expresses views which I find very problematic from the viewpoint of the fundamental values underlying the Convention. It stresses that the applicant was an activist in a non-governmental organisation which was active in the area of animal defence and that her purpose was to inform the public. The emphasis placed on all of those elements unequivocally suggests that they are important for the assessment of the present case. If they were irrelevant, would it be necessary to emphasise them in paragraphs 36, 37, 52, 53 and 54? The majority thus implicitly differentiates between two categories of legal subjects: journalists and non-governmental organisations on one hand, and all other persons on the other. The first category enjoys stronger protection in respect of the right of access to information, whereas the second category does not enjoy the same protection. 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.
The Court’s case-law concerning the rights of journalists and of the press was developed in 1970s and 1980s in a specific social context. At that time the right to access public information was not widely recognised and the press enjoyed a quasi-monopoly in gathering and imparting information. The development of technology and especially the Internet has led to a completely different situation today. The quantity of available information and the way it circulates in society have changed substantially. The press has lost its quasi-monopoly on imparting information and access to public debate has been democratised. The role of the press has evolved and its influence has declined considerably. 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 directly participate in public debate through various channels, mainly through the Internet. 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.
I fully agree that the press still has an important role to fulfil in a democratic society and that the profession of journalist may require some special rules. I also agree that the role of non-governmental organisations is essential for democratic society and that their activity may require special regulations. However, special rules cannot pertain to the “extra‑conventional” but nonetheless fundamental right of access to information. Vis-à-vis this right, all citizens should be equal. I do not see why the two groups singled out by the majority should enjoy better‑protected access to information. Access to information should not depend on the status of the person requesting information. Assuming that the claim-right to information is protected under Article 10, the distinction made in the reasoning is incompatible with the prohibition of discrimination enshrined in Article 14 of the Convention.
The majority also refers to “the gathering of information with a view to its subsequent provision to the public” (paragraph 40) when justifying the applicability of Article 10, and notes further that “the purpose for which the applicant had sought the information was to inform the public” (paragraph 54). It is stressed that “[t]he applicant was involved in the legitimate gathering of information of public interest for the purpose of contributing to public debate” (paragraph 54). It is difficult to understand why the motivation of the applicant is considered so important in the instant case. Would the outcome have been different had her motives been different? 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. Furthermore, the emphasis on the applicant’s motivation (to inform the public), taken in conjunction with the focus on the special role of the press and of non-governmental organisations (in informing the public) rather than on the public’s direct access to the sources of information, gives an impression of preference for indirect access of citizens to information (through the press and non-governmental organisations), which inevitably brings with it the inherent risk of distortion and filtering of information.
8.  In conclusion, I am 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, limits the effectiveness of the political rights protected by Article 3 of Protocol No. 1 and diminishes legal certainty. Thus, the achievements made on some fronts do not necessarily compensate for the substantial losses incurred on others.

The conditions of detention of a severely disabled prisoner found to be contrary to the Convention - case of Helhal v. France - violation of Article 3 - The case concerned the compatibility of a disabled prisoner’s state of health with his continuing detention and the arrangements for his care in prison. The Court found in particular that, although the applicant’s continuing detention did not in itself constitute inhuman or degrading treatment in the light of his disability, the inadequacy of the physical rehabilitation treatment provided to him and the fact that the prison premises were not adapted to his disability amounted to a breach of Article 3 of the Convention.
The Court rejects the applications of two public figures complaining about the use of their first names without their consent in satirical cigarette advertisements - cases of Bohlen v. Germany and Ernst August von Hannover v. Germany no violation of Article 8 of the Convention - The cases concerned the use in humorous cigarette advertisements of the first names of two public figures in Germany and of news items about them, without their consent. The advertisements in question referred, respectively, to a book published by the musician Dieter Bohlen and to altercations in which Ernst August von Hannover had been involved. The Court found in particular that the German Federal Court of Justice had struck a fair balance between freedom of expression and the right to privacy by taking into account the commercial and humorous nature of the advertisements in question, the context in which they had been published, the absence of any degrading or negative content concerning the applicants and the applicants’ prior public conduct. A thorough balancing exercise had therefore been carried out between the competing interests at stake.

Texts are based on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments.

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