Article 10 of the Convention includes the right of access to data held by an intelligence agency

This post is written by Dirk Voorhoof, Ghent University.*

In its judgment of 25 June 2013 in the case of Youth Initiative for Human Rights v. Serbia the European Court of Human Rights has recognised more explicitly than ever before the right of access to documents held by public authorities, based on Article 10 of the Convention (right to freedom of expression and information). The judgment also recognises the importance of NGOs acting in the public interest. The judgment contains a particularly important statement by the Court unambiguously reaffirming that in Europe security services and intelligence agencies are to respect the European Convention of Human Rights. The Court ordered the information held by the Serbian Intelligence Agency to be made accessible for the applicant NGO.

The right of access to information under Article 10 of the Convention

The case concerns an NGO, Youth Initiative for Human Rights, that is monitoring the implementation of transitional laws in Serbia with a view to ensuring respect for human rights, democracy and the rule of law. The applicant NGO requested the intelligence agency of Serbia to provide it with some factual information concerning the use of electronic surveillance measures by that agency in 2005. The agency first refused the request, relying thereby on the statutory provision applicable to secret information. After an order by the Information Commissioner that the information at issue be nevertheless disclosed under the Serbian Freedom of Information Act 2004, the intelligence agency notified the applicant NGO that it did not hold that information. Youth Initiative for Human Rights complained in Strasbourg, under Articles 6 and 10 of the Convention, about the refusal to have access to the requested information held by the intelligence agency, notwithstanding a final and binding decision of the Information Commissioner in its favour.

Referring to its judgment in Társaság a Szabadságjogokért (TASZ) v. Hungary (ECtHR 14 April 2009), the European Court recalls in its judgment of 25 June 2013 “that the notion of ‘freedom to receive information’ embraces a right of access to information” (§ 20). The European Court is of the opinion that as Youth Initiative for Human Rights was obviously involved in the legitimate gathering of information of public interest with the intention of imparting that information to the public and thereby contributing to the public debate, there has been an interference with its right to freedom of expression (§ 24). Although the exercise of freedom of expression and information may be subject to restrictions which can justify certain interferences, the Court went on emphasising that such restrictions ought to be in accordance with domestic law. In the present case the European Court found that the restrictions imposed by the Serbian intelligence agency, resulting in a refusal to give access to public documents, did not meet the criterion as being prescribed by law. The Court referred to the fact that the intelligence agency indeed informed the applicant that it did not hold the information requested, but for the Court it is obvious that this “response is unpersuasive in view of the nature of that information (the number of people subjected to electronic surveillance by that agency in 2005) and the agency’s initial response”. The Court comes to the conclusion that the “obstinate reluctance of the intelligence agency of Serbia to comply with the order of the Information Commissioner” was in defiance of domestic law and tantamount to arbitrariness, and that accordingly there has been a violation of Article 10 of the Convention. Having regard to the finding relating to Article 10 of the Convention, the Court considered that it was not necessary to examine the admissibility or the merits of the same complaint under Article 6.

It is also interesting to notice that the Court reiterated in robust terms that an NGO can play a role as important as that of the press in a democratic society: “when a non-governmental organisation is involved in matters of public interest, such as the present applicant, it is exercising a role as a public watchdog of similar importance to that of the press” (§ 20) (see also ECtHR (Grand Chamber) 22 April 2013, Animal Defenders International v. the United Kingdom, Appl. No. 48876/08, § 103; see our post here).

UN-documents in support of the right of access to information

Another interesting aspect of this judgment is the reference to several UN documents with regard to the right of access to information, as a kind of (quasi-)judicial dialogue between the European Human Rights system and the UN-level. As “relevant international documents” the judgment refers to Article 19 of the International Covenant on Civil and Political Rights, to the General Comment no. 34 of the UN Human Rights Committee (CCPR/C/GC/34 of 12 September 2011), to the Joint Declaration by the United Nations Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression of December 2004 and to the Joint Declaration by the United Nations Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR (African Commission on Human and Peoples’ Rights) Special Rapporteur on Freedom of Expression of December 2006, all emphasising the right of access to public documents.

Article 46 of the Convention and the restitutio in integrum

Finally, as a measure under Article 46 of the Convention, the Court ordered the Serbian State to ensure,  within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, that the intelligence agency of Serbia provide the applicant with the information requested. Although the Court reiterated that by virtue of Article 46 the execution of its judgments are being supervised by the Committee of Ministers of the Council of Europe, it also emphasised the need that sometimes “general and/or, if appropriate, individual measures (are) to be adopted” in order to put an end to the violation found by the Court and to redress so far as possible the effects of its judgment (§ 31). The Court continues that “although it is in principle not for the Court to determine what remedial measures may be appropriate to satisfy the respondent State’s obligations under Article 46 of the Convention, the violation found in this case, by its very nature, does not leave any real choice as to the measures required to remedy it” (§ 31).   Therefore Court is of the opinion that the most natural execution of its judgment, and that which would best correspond to the principle of restitutio in integrum, is to indeed secure that the intelligence agency of Serbia provide the applicant with the information requested (namely, how many people were subjected to electronic surveillance by that agency in the course of 2005).

Security and intelligence agencies need to respect human rights and fundamental freedoms

In the light of the current discussion regarding the lack of transparency of the functioning of the National Security Agency in the US, and European intelligence agencies, it is reassuring to see how the European Court of Human Rights once more made very clear that national security and intelligence agencies are also to respect the rights and freedoms of the European Convention. National authorities are under the obligation not only to refrain from active infringements of the rights in question, but also to take appropriate steps to provide protection against an unlawful interference with those rights to everyone within its jurisdiction. These positive obligations also include guaranteeing the compliance with the Convention by security services and intelligence agencies (see also ECtHR 22 November 2012, Telegraaf Media Nederland Landelijke Media B.V. e.a. v. the Netherlands, Appl. No. 39315/06 and ECtHR (Grand Chamber) 12 December 2012, El-Masri v. the former Yugoslav Republic of Macedonia, Appl. No. 39630/09; see our post here).

Joint concurring opinion by Sajó and Vučinić : transparency,  journalists and citizens

In their concurring opinion, Judges Sajó and Vučinić refer to the legal developments regarding the right of access to information, including the Court’s Grand Chamber judgment in Gillberg v. Sweden (3 April 2012; see our post here) and the Council of Europe Convention on Access to Official Documents (2009, not yet in force). Being mindful of “the demands of democracy in the information society”, they highlight certain implications that the Court should address in due course. Most interesting is their statement that “in the world of the Internet the difference between journalists and other members of the public is rapidly disappearing. There can be no robust democracy without transparency, which should be served and used by all citizens”. A firm statement by the concurring judges, of which indeed one may hope it will soon become a majority principle within the European Court of Human Rights. That’s why it is good to repeat it once more : “There can be no robust democracy without transparency, which should be served and used by all citizens”.

* Dirk Voorhoof is professor at Ghent University (Belgium) and lectures European Media Law at Copenhagen University (Denmark). He is also a Member of the Flemish Regulator for the Media and of the Human Rights Centre at Ghent University.

12 thoughts on “Article 10 of the Convention includes the right of access to data held by an intelligence agency

  1. Interesting analysis. Thanks again to the Strasbourg Observers and professor Dirk Voorhof.
    I just wonder if the Court is really that clear on the inclusion of the right of access to information (RTI) under Article 10 of the Convention?! I think that a slightly different reading can point out that the Court is using the fact that the national Serbian law provides for a right of access to documents and that after the final and binding order of the Information Commissioner the intelligence agency did not provide the information. Thus, the applicant had a right to receive the data, the agency being already bound to disclose it under national law. The violation of the Convention and the applicant’s freedom of expression (with a direct effect on their right of imparting the information) appears to come from the “obstinate reluctance” of not complying with domestic law.
    Consequently, I wonder, looking from this point of view, if we really can claim that there is a genuine RTI under the Convention. Say if a State, party to the Convention, which does not have a freedom of information act or any kind of RTI in its national law, could a person rely on Article 10 and claim a right of access to information? Could this person win a case against this State in Strasbourg for violation of her/his RTI under Article 10 of the Convention?
    It is more of a question that I am wondering on, not a conclusion.
    Thanks for sharing thoughts.

    Stephan Anguelov
    Access to Information Programme, Bulgaria

  2. Thanks Stephan for your reaction, I can fully understand your observation. Hence a fast reply to stimulate further analysis.

    You are right : the finding of a violation of Article 10 ECHR in this case follows from the refusal by the Serbian Intelligence Agency of the order of the FOI Commissioner to give access to the requested data, a refusal which was not prescribed by law and for that reason breached Article 10 ECHR. The question remains as you formulate it : “ (..) if we really can claim that there is a genuine RTI under the Convention. Say if a State, party to the Convention, which does not have a freedom of information act or any kind of RTI in its national law, could a person rely on Article 10 and claim a right of access to information? Could this person win a case against this State in Strasbourg for violation of her/his RTI under Article 10 of the Convention?”

    I think that person would have a claim under Article 10, in case of having no national guarantees/rights/procedures/effective remedies to have access to public documents on issues of public interest for society, with the aim of bringing that information under the public eye (see also TASZ and Kenedi).

    The Court this time went a step further though.

    1. the Court recalls “that the notion of “freedom to receive information” embraces a right of access to information” (§ 20), which means that the Court recognizes that there is a right of access to information guaranteed as such by Article 10 ECHR.

    2. The Court also observes : “As the applicant was obviously involved in the legitimate gathering of information of public interest with the intention of imparting that information to the public and thereby contributing to the public debate, there has been an interference with its right to freedom of expression (§ 24)”. It means that when the legitimate gathering of information (.. etc., contributing to public debate) is interfered with, Article 10 is applicable. It would be hard to justify that a total lack at national level to enforce or to enjoy or practice that right would not amount in a breach of Article 10, as such an interference would not meet the conditions of Article 10 § 2 ECHR.

    Hope this explanation helps to clarify the actual importance of the judgment of the ECtHR 25 June 2013.

    Dirk Voorhoof

  3. Thanks also from me for this useful analysis.

    It seems to me that the Court now indeed accepts that a right to access official documents is inherent in Article 10 ECHR, which is certainly a positive development. The exact scope of that right remains unclear. How are we to understand this remark (which mirrors a similar holding in the TASZ case), for example?

    “As the applicant was obviously involved in the legitimate gathering of information of public interest with the intention of imparting that information to the public and thereby contributing to the public debate, there has been an interference with its right to freedom of expression”.

    A key tenet of progressive national access to information laws and international treaties and recommendations in this area is that the requester’s motive should play no part in the decision whether or not to disclose information. Discrimination between requesters is often expressly prohibited, e.g. journalists and NGOs usually do not enjoy preferential access. Does the Court consider that a right of access to official documents flows from Art. 10 only where the applicant needs the information in order to contribute to public debate (rather than, say, to discover the best school in the area to send his/her children to)? If so, how is a government to know whether a request comes within the scope of Article 10, if its national law for good reasons prevents it from enquiring about the requester’s motive?

    Daniel Simons
    Greenpeace International

  4. Again an interesting observation, thanks Daniel SImons.
    In the actual stage of the Strasbourg case law I’m indeed inclined to confirm that Article 10 only guarantees (an added value regarding) access to public documents related to information of public interest with the intention to impart that information to the public in order to contribute to public debate. I fully agree that according to national FOI-law and international standards the person requesting access does not need to show a particular interest (apart if its concerns access to personal data). However, some restrictions of the FOI-law shall not be applied in cases where the person requesting for access can pertinently invoke Article 10 ECHR, arguing that the information concerns an issue of public interest of which the aim is to make it public as contribution to public debate on that issue. There shouldn’t be any difference whether the requester is a journalist or an NGO, both having similar functions as public watchdogs, as the Court has recognised now at several occasions.
    To summarize : Article 10 ECHR will only create an added value for access to information under the circumstances just described, that is only regarding information related to an issue of public interest for input in the public debate. This might seem unsatisfactory, but at least it is an added value.
    Dirk Voorhoof

  5. Dear Professor Voorhoof,

    I understood from the case discussed, Youth Initiative for Human Rights v. Serbia, ECtHR d.d. 25.06.2013 conjointly with TASZ v. Hungary, ECtHR d.d. 14.04.2009, the public interest criterium for acces of information under the remit of art. 10 ECHR is not critical as such because it has broadened the scope of respective Freedom of Information Acts like in the Netherlands, Wet Openbaarheid bestuur, as the Pavlov mitigating statutory impediments cannot be raised automatically anymore but there should be a balancing off against the law cases a quo as per art 10 ECHR.

  6. Thank you for your article.
    Bavaria is one of the German federal states without a Freedom of information law.

    Human Rights Commissioner Thomas Hammarberg suggested to add human rights to the core curricula in the legal education and practical training of lawyers and educate judges and administration in human rights. The Bavarian government rejecdet the suggestion and refused to give access to the reasons. A filed a complaint at the administrative court in Munich: http://home.broadpark.no/~wkeim/files/enforce_access_to_information.html#complaint
    However the court found after 11 months, that the human right of access to public documents does not apply in Bavaria, quoting a decition of the German federal court in 1980. According to German rules i had to hire a lawyer to appeal.
    I agree with the Joint concurring opinion by Sajó and Vučinić. In germany I do not know any NGO or journalist, who has done more then I did for the human right of access to information. Should a country lacking human right NGOs for access to information, lack this human right?

  7. […] The Court refers to the development in its case law regarding Article 10 and access to information. It recalls that it has held that the right to receive information cannot be construed as imposing on a State positive obligations to collect and disseminate information of its own motion. However, the Court noted that it had recently advanced towards a broader interpretation of the notion of the “freedom to receive information” and thereby towards the recognition of a right of access to information. The Court also refers to its case-law stating that the most careful scrutiny was called for when authorities enjoying an information monopoly interfered with the exercise of the function of a social watchdog (§ 41) (see Társaság a Szabadságjogokért v. Hungary, also referred to in Youth Initiative for Human Rights v. Serbia, see our post here). […]

  8. […] The Court refers to the development in its case law regarding Article 10 and access to information. It recalls that it has held that the right to receive information cannot be construed as imposing on a State positive obligations to collect and disseminate information of its own motion. However, the Court noted that it had recently advanced towards a broader interpretation of the notion of the “freedom to receive information” and thereby towards the recognition of a right of access to information. The Court also refers to its case-law stating that the most careful scrutiny was called for when authorities enjoying an information monopoly interfered with the exercise of the function of a social watchdog (§ 41) (see Társaság a Szabadságjogokért v. Hungary, also referred to in Youth Initiative for Human Rights v. Serbia, see our post here). […]

  9. […] Initiative For Human Rights c. Serbie, Req. n° 48135/06 – Communiqué ; Dirk Voorhoof, « Article 10 of the Convention includes the right of access to data held by an intelligence agency », in Strasbourg Observers, 8 juillet 2013 ; Cour EDH, 1e Sect. 28 novembre 2013, […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s