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SAURE v. GERMANY: Written Comments Submitted by Centre for Democracy and Rule of Law

November 23, 2016

04 October 2016

 

European Court of Human Rights

Fifth Section

Council of Europe

F-67075 Strasbourg CEDEX

France


SAURE v. GERMANY
Applications nos.

4550/15, lodged on 15 January 2015

6091/16, lodged on 26 January 2016

6106/16, lodged on 27 January 2016

8819/16, lodged on 11 February 2016

 

Written Comments

Submitted by Centre for Democracy and Rule of Law

 

Pursuant to leave granted on 13 September 2016 by the Vice-President of the Section, acting under the rule 44 (3) of the Rules of the Court, Centre for Democracy and Rule of Law hereby submits its written comments on the legal principles that should govern the resolution of the issues presented by these cases.

 

Introduction

The cases, brought before the Court by Mr. Saure, raise the fundamental question of the interpretation of the Convention provisions – whether or not Article 10 provides a basis for a general right of access to information possessed by public authorities.

Article 10 of the Convention does not specifically provide for a right of access to information. In a number of cases, the Court consistently stated that the freedom to receive information could not be construed as imposing on a State positive obligation to collect and disseminate information of its own motion. However, in some recent decisions, the European Court of Human Rights has upheld freedom of information claims under Article 10 and found violation of the right to freedom of expression.

In its written comments Centre for Democracy and Rule of Law provides a research of international and European standards of freedom of information with a view to justify the broader approach of the “right to receive information”. In dealing with this issue, Centre for Democracy and Rule of Law relies on the general principles of interpretation of international treaties as established by the Convention on the Law of Treaties, namely, that the treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context (in particular, international law applicable in the relations between the parties) and in the light of its object and purpose.

Centre for Democracy and Rule of Law also adreses the importance of applying the “reasonable time” doctrine in the freedom of information cases brought before the court by investigative journalists.

 

  1. Access to Information and International Standards
    1. The first Right to Information Act was adopted in Sweden 250 years ago[1]. Since then, the right of access to information has been widely recognized all over the world. At least 110 of the 193 UN member states – a solid majority – now have access to information statutes.
    2. On the international level, the right to seek information has been incorporated into Article 19 of the Universal Declaration of Human Rights, adopted by theUnited Nations General Assembly on 10 December 1948, that reads: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” The Declaration set out a common standard of achievement for all peoples and all nations, providing an obligation to every member state to secure universal and effective recognition as well as observance of these rights and freedoms.
    3. International Covenant on Civil and Political Rights, entered into force in 1976, replicated the provisions of the Declaration, providing that “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.

In 2011 UN Human Rights Committee that monitors implementation of the ICCPR by its State parties, in its General comment No. 34 (2011) provided detailed interpretation of the Article 19 guarantees for the right to seek information. For instance, to give effect to the right of access to information, States parties should:

  • proactively put in the public domain Government information of public interest;
  • make every effort to ensure easy, prompt, effective and practical access to such information;
  • enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation[2].
    1. UN Human Rights Committee also applied the aforementioned principles in its case law. In Toktakunov v. Kyrgyzstan (2011) the HRC recognized a “right of access to state-held information” grounded in ICCPR Article 19 regarding freedom of expression, including a duty of the government to disclose or to justify non-disclosure (para. 7.4). Furthermore, the HRC also declared that the ICCPR recognizes the right of individuals and the media to receive state-held information without requiring a demonstration of direct interest (para. 6.3)[3].

 

 

  1. The essential need for a right to information as an element of freedom of expression has been also recognized in American and African inter-state human rights systems.

American Convention on Human Rights, adopted at the Inter-American Specialized Conference on Human Rights on 22 November 1969, in Article 13 provides for the right to freedom of thought and expression that “includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.”

In its determining decision – Reyes v. Chile (2006) – Inter-American Court of Human Rights for the first time ruled that Article 13 of the American Convention on Human Rights protects the right of access to state-held information, which encompasses the right of individuals to receive information and the state’s positive obligation to provide it, subject to limited exceptions. An individual or entity seeking information is not required to prove direct or personal interest and, once the information is received, is free to circulate it to the public generally (para. 77)[4].

African Charter on Human and Peoples’ Rights in Article 9 does not specifically provides for the right “to seek” but “to receive” information. However, the acceptance of access to information as part of the right to freedom of expression has been further developed in the Declaration of Principles on Freedom of Expression in Africa[5]. 

  1. The United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information in its Joint Declaration on Freedom of Expression and Countering Violent Extremism (2016) emphacised on the right to seek, receive and impart information and ideas of all kinds, especially on matters of public concern, including issues relating to violence and terrorism, as well as to comment on and criticise the manner in which States and politicians respond to these phenomena. “States and public officials should encourage open debate and access to information about all topics, including where they touch upon issues such as ethnicity, religion, nationality or migration, in schools and universities, and in academic, scholarly or historical texts.”[6]

 

 

  1. In 2015, with the adoption of UN Sustainable Development Goals, or SDGs, to guide global and national development policies over the next 15 years, the commitment to “ensure public access to information” has been taken by all 193 UN member states. To measure progress towards this new global goal, the UN will track the “adoption and implementation” of freedom of information legislation by national governments – in effect, requiring countries to provide regular status reports[7]. 
  2. Taking into account of existing international framework and case law, the right to information has undoubtebly developed into a norm of customary international law.

 

  1. Access to information and the Council of Europe

 

  1. Paragraph 1 of the Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides for three components of the right to freedom of expression:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers […].”

  1. In Leander v. Sweden (1987) the Court observed that freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him. Article 10 does not, in circumstances such as those of the case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual[8]. Furthermore, in Guerra and Others v. Italy (1998) the Court 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.[9]
  2. However, the recent decisions of the Court have introduced a broader approach towards the interpretation of the right “to receive information” as including both – the right to gather information through all possible lawful sources and to seek information held by state authorities. To support this position the Court centered its argumentation on the concept of public interest in the accessibility of information held by a public body[10] and the importance of gathering information for a ‘watchdog’ activity[11].

 

 

The Court, therefore, recognized that Article 10 should protect a right of access to information, within the concept of the freedom to receive information, where the information is held by the State under an information monopoly and it is in the public interest that the information sought be disclosed, subject to Article 10(2). Moreover, the journalistic function of acting as a public watchdog, is not restricted to professional journalists, but encompasses NGOs and individual activists whose aim is to place the information in the public domain.

  1. Development of the Court case law regarding recognition of the right to information as protected under Article 10 is in line with the “living nature” of the Convention. In Demir v Turkey (2009), the Grand Chamber stated that it should take into account evolving norms of national and international law in its interpretation of Convention provisions[12]. Apart from the international treaties and case law, described in the Part A of this Intervention, providing a general right of access to information, freedom of information is also a subject to a number of Council of Europe declarations and recomendations.
  2. Recommendation No. R (81) 19 of the Committee of Ministers to member states on the access to information held by public authorities containe legal principles that shall guide the member states in their law and practice in order to ‘ensure the fullest possible availability to the public of information held by public authorities’. According to the Recommendations, everyone within the jurisdiction of a member state shall have the right to obtain, on request, information held by the public authorities other than legislative bodies and judicial authorities[13].
  3. The Declaration on the Freedom of Expression and Information, adopted by the Committee of Ministers in 1982 among the objectives that member States shall seek to achieve are:
  • protection of the right of everyone, regardless of frontiers, to express himself, to seek and receive information and ideas, whatever their source, as well as to impart them under the conditions set out in Article 10 of the European Convention on Human Rights;
  • the pursuit of an open information policy in the public sector, including access to information, in order to enhance the individual’s understanding of, and his ability to discuss freely political, social, economic and cultural matters[14].
    1. Committee of Ministers Recommendation Rec(2002)2 on access to information went further in recognizing the right to information and stated that access to information also included pro-active actions by public authorities to make information of public interest more easily accessible:

 

“A public authority should, at its own initiative and where appropriate, take the necessary measures to make public information which it holds when the provision of such information is in the interest of promoting the transparency of public administration and efficiency within administrations or will encourage informed participation by the public in matters of public interest.”[15]

The Comittee of Ministers stressed that «the principles set out hereafter constitute a minimum standard, and that they should be understood without prejudice to those domestic laws and regulations which already recognise a wider right of access to official documents».  

  1. In 2009 Council of Europe promulgated Convention on Access to Official Documents, which, when came into force, shall become a binding international legal instrument to recognise a general right of access to official documents held by public authorities. The Convention sets forth the minimum standards to be applied in the processing of requests for access to official documents, review procedure and complementary measures and it has the flexibility required to allow national laws to build on this foundation and provide even greater access to official documents.

The Convention also establishes a Group of Specialists on Access to Official Documents who will monitor the implementation of the Convention by the Parties, by reporting on the adequacy of the measures in law and practice taken by the Parties to give effect to the provisions set out in this Convention. The Specialists shall also make proposals to facilitate or improve the effective use and implementation of this Convention, exchange information and reporting on significant legal, policy or technological developments and make proposals to the Consultation of Parties for the amendment of this Convention.

However, the Group of Specialists do not have any jurisdiction to consider and decide on the cases of alleged violations of the right to information, guaranteed by this Convention, refered to it by individuals.

  1. Therefore, even though Article 10 does not explicitly points to the right to information (in contradiction to the wording of Article 19(2) ICCPR), documents issued by the Council of Europe, illustrate the importance of incorporation of the right of access to public documents within the right to freedom of expression.

 

  1. The Role of Access to Information in a Democratic Society

 

  1. There is a sufficiently wide acceptance of the right to information in European states. Within the Council of Europe, the only four countries that have not yet made legal provisions on access to information in their national legislation are Andorra, Cyprus, Luxemburg and San Marino[16].

 

By adopting domestic legislation that provide a general right of access to information, subject to limited exceptions, the remaining 43 member states have already undertook positive obligations to ensure the effective implementation of those provisions, in particular obligations to impart requested information. Therefore, interpretation of Article 10 as imposing a positive obligation on a State to disclose requested information shall not be considered as putting an “unbearable burden” on state authorities.

  1. In Artico v. Italy the Court emphasized the importance of effective interpretation of the Convention – its provisions intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective[17]. In this regard, as it has already been established by the Court in Dammann v Switzerland (2006), the gathering of information is an essential part of the journalistic function, and there is an obligation on the part of the State not to impede the flow of information over which it holds a monopoly[18].
  2. While the freedom to receive information and opinions relates to the media in that it enables them to impart such information and ideas to the public, the Court also read in this freedom the right of the public to be adequately informed, in particular on matters of public interest[19]. In its well-established practice the Court paid a special attention to the essential function the press fulfils in a democratic society, stating that: “Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest”[20].

Collecting information and guaranteeing access to documents held by public authorities is a crucial right for journalists in order to be able to report on matters of public interest, helping to implement the right of the public to be properly informed on such matters[21]. With the development of new technologies and social media, verification and the possibility to gather documented data from the official sources plays an extremely important role in combating manipulations and propaganda.

Moreover, since the press, according to the Court, has the “duty”/ “task” to impart information of public matters, it is unreasonable to exclude public authorities, who collect and proceess such information on behalf of the public, from the duty to disclose it, if not actively, than at least in responce to the informational requests filled under national legislation. It is also important to emphasize that public bodies are the “holders” but not the “owners” of the official information.

 

 

In balancing the right to freedom of expression with legitimate extemptional interests it is nessessary to consider the effect of the infreingement on the journalism functions instead of the fact whether the State authorities “willing” or “unwilling” to provide information.

  1. According to the doctrine of “margin of appreciation”, the member states are allowed a certain level of discretion when they take measures regarding Convention rights. Nevertheless, these measures shall be the subject to the Court supervision. Since the imposed positive obligation pursue the goal of the effective application of the Convention and the effectiveness of the right to freedom of expression it secures, the Court shall have the jurisdiction to evaluate whether the refusal to grant access to information was prescribed by law and nessessary in a democratic society. The national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of “public watchdog” in imparting information of serious public concern[22].
  2. Another important approach in the interpretation of Article 10 that shall be taken into account while defining the place of the right to information in it is focusing on the object and purpose (teleological interpretation) of the Convention. The Court has extended the reach of the Convention in many contexts in the absence of the clear wording by referring to the the principles and values of the Convention to be found in its Preamble[23].
  3. Freedom of expression constitute the foundation stone for every free and democratic society. As an instrumental right, freedom of expression ensure that the persons are in receipt of information regarding their rights in general. For instance, the UN Human Rights Committee elaborated on the importance of freedom of expression for the conduct of public affairs and the effective exercise of the right to vote. The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues and to inform public opinion without censorship or restraint[24].
  4. Access to information is also a necessary condition for the realization of the principles of transparency and accountability. The exercise of a right to access to official documents provides not only a source of information for the public but also supports the public in forming an opinion on the state of society and on public authorities. It is also fosters the integrity, efficiency, effectiveness and accountability of public authorities, so helping affirm their legitimacy[25].

 

 

 

  1. “Reasonable time” doctrine in the freedom of information cases

 

  1. The Court regularly refers to the characterization of the impact of proceeding duration on the individual’s rights. The reasonableness of the length of proceedings is to be determined in the light of the circumstances of the case and with reference to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and what was at stake for the applicant in the dispute[26]. While taking into account the essence and the impact of violations of the right to a fair trial in each particular case, it is becoming extremely important to consider the matter of reasonable time adherence in proceedings before the national courts.
  2. Article 10 of the Convention provides everyone with the right to receive and impart information and ideas without interference by a public authority taking into consideration that any of restrictions, conditions, limitations or any form of interference may only be applied to a particular exercise of this freedom. The Court`s judgments reflect various forms of possible interferences and there are no pre-established limits. “State’s interference” must be seen as any form of interference coming from any authority exercising public power or duties or being in the public service. The Court practice also says that the State is responsible for all its authorities: not just the judicial, but all public institutions[27]. Therefore, the Court examines and decides in each particular case whether interference exists looking at the restrictive impact.
  3. In the cases when it comes to access to public information, proceedings duration directly affects the position of a person or a circle of people who are in need of reliable official information for the adoption of this or that solution. For journalists, free access to information is essential as for watchdogs. Updating the public about topical issues just-in-time is impossible without providing the proceedings in the right to information cases within reasonable terms. This situation makes “chilling effect” on freedom of expression as a journalist not being able to get information from official sources, will refrain from highlighting the facts for fear of getting defamation lawsuit. It obviously stops the transmission of the information and ideas to those who want to receive them.
  4. There is a positive obligation of the state to guarantee full set of rights and it becomes impossible to provide the citizens with objective depiction of the current situation. The journalist’s function is to initiate and stimulate public discussions, warn about possible danger in time and prevent from social conflicts.
  5. Any national laws or other regulations cannot impose absolute and unlimited fidelity or confidentiality. Consequently, states must prove the existence of a real danger against the protected interest and must also take into account the interest of the public in being given certain information. The absence of effective proceedings on access to information cases being held

 

within reasonable terms and its delaying is interchangeable to default of information by the State. Such restriction affects the substance of the right to impart information and ideas.

  1. Therefore, unreasonably long trial proceeding makes this information inaccessible, equals the concealing of the information and it is visible that such restrictions testifies improper implementation of three requirements test provided in paragraph 2 of Article 10 of the Convention.

Summary

Recognizing the right to information as falling under a scope of protection under Article 10 of the Convention is a consequent result of the development of access to information standards on international and domestic levels. This should not be considered as over-extensive interpretation of the three components provided by paragraph 1 of the Article 10 but as a nessessary evolutionery step towards the achievement of the Convention purpose to maintain and promote the ideas and values of democratic society. In this regard, it is also vitally important to ensure the access to information of public matters within reasonable time. Othervise, taking into account the “nature” of information as such, the function of press as a public “watchdog” cannot be effectively fullfiled.  

 

 

 

 

 

Taras Shevchenko                       Tetiana Oleksiyuk                            Vita Volodovska  

Director                                         Lawyer                                            Lawyer

 

[1] “His Majesty’s Gracious Ordinance Relating to Freedom of Writing and of the Press”(1766). Issued in Stockholm, in the Council Chamber, on 2 December 1766.

http://www.chydenius.net/pdf/worlds_first_foia.pdf

[2] Human Rights Committee. General comment No. 34 Article 19: Freedoms of opinion and expression. CCPR/C/GC/34 12 September 2011

[3] See also Gauthier v Canada (1995), Castañeda v Mexico (2012).

 

[4] See also Gomes Lund et. al. v. Brazil (2010) and Gudiel Alvarez et al. (Diario Militar) v. Guatemala (2012)Початок форми

 

[5] Declaration of Principles on Freedom of Expression in Africa, African Commission on Human and Peoples’ Rights, 32nd Session, 17 – 23 October, 2002: Banjul, The Gambia.

[6] Joint Declaration on Freedom of Expression and Countering Violent Extremism. Joint declaration by the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information, presented at the UNESCO World Press Freedom Day event, May 3 2016.

[7] See Resolution adopted by the General Assembly on 25 September 2015. Transforming our world: the 2030 Agenda for Sustainable Development. Goal 16: Promote just, peaceful and inclusive societies

[8] Leander v. Sweden, 26 March 1987, § 74, Series A no. 116

[9] Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998‑I

[10] See Tarsasag a Szabadsagjogokert v Hungary (2011), Shapovalov v Ukraine (2012), Youth Initiative for Human Rights v Serbia (2013)

[11] Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung v Austria (2013), Guseva v Bulgaria (2015)

[12] Demir and Baykara v. Turkey [GC], no. 34503/97, § 65, ECHR 2008

[13] Recommendation No. R (81) 19 of the Committee of Ministers to member states on the access to information held by public authorities, Principle I. Adopted by the Committee of Ministers on 25 November 1981, at the 340th meeting of the Ministers’ Deputies.

[14] Declaration on the Freedom of Expression and Information. Adopted by the Committee of Ministers on 29 April 1982 at its 70th Session (II.-a, II.-c.)

[15] Recommendation Rec (2002) 2 of the Committee of Ministers to member states on access to official documents. Part XI. Information made public at the initiative of the public authorities Adopted by the Committee of Ministers on 21 February 2002, at the 784th meeting of the Ministers’ Deputies.

[16] Global Right to Information Rating: http://www.rti-rating.org/

[17] Artico v. Italy, 13 May 1980, § 33, Series A no. 37

[18] Dammann v. Switzerland, no. 77551/01, § 52, 25 April 2006

[19] Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298

[20] Bladet Tromsø and Stensaas v. Norway [GC], no.21980/93, § 59, ECHR 1999-III

[21] Roşiianu v. Romania, no. 27329/06, § 62, 24 June 2014

[22] Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports 1996-II, p. 500, § 39

[23] See Golder v. the United Kingdom, 21 February 1975, Series A no. 18, Brumărescu v. Romania [GC], no. 28342/95, ECHR 1999-VII, López Ostra v. Spain, 9 December 1994, Series A no. 303-C and others.

[24] Human Rights Committee. General comment No. 34 Article 19: Freedoms of opinion and expression. CCPR/C/GC/34 12 September 2011, para. 20

[25] Council of Europe Convention on Access to Official Documents. Tromsø, 18.VI.2009

[26] Silva Pontes v. Portugal judgment of 23 March 1994,  § 39

[27] Martins Moreira v. Portugal, 26 October 1988, § 60, Series A no. 143