Jedna odpowiedź

  1. http://tasz.hu/files/tasz/imce/itelet.doc

    The Court’s assessment
    1.  Whether there has been an interference
    26.  The Court 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 which serves to impart information and ideas on such matters (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216, and Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239). In this connection, the most careful scrutiny on the part of the Court is called for when the measures taken by the national authority are capable of discouraging the participation of the press, one of society’s “watchdogs”, in the public debate on matters of legitimate public concern (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999‑III, and Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298), even measures which merely make access to information more cumbersome.
    27.  In view of the interest protected by Article 10, the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information. For example, the latter activity is an essential preparatory step in journalism and is an inherent, protected part of press freedom (see Dammann v.
    Switzerland (no. 77551/01, § 52, 25 April 2006).  The function of the press includes the creation of forums for public debate. However, the realisation of this function is not limited to the media or professional journalists. In the present case, the preparation of the forum of public debate was conducted by a non-governmental organisation. The purpose of the applicant’s activities can therefore be said to have been an essential element of informed public debate. The Court has repeatedly recognised civil society’s important contribution to the discussion of public affairs (see, for example, Steel and Morris v. the United Kingdom (no. 68416/01, § 89, ECHR 2005‑II). The applicant is an association involved in human rights litigation with various objectives, including the protection of freedom of information. It may therefore be characterised, like the press, as a social “watchdog” (see Riolo v. Italy, no. 42211/07, § 63, 17 July 2008; Vides Aizsardzības Klubs v. Latvia, no. 57829/00, § 42, 27 May 2004). In these circumstances, the Court is satisfied that its activities warrant similar Convention protection to that afforded to the press.
    28.  The subject matter of the instant dispute was the constitutionality of criminal legislation concerning drug-related offences. In the Court’s view, the submission of an application for an a posteriori abstract review of this legislation, especially by a Member of Parliament, undoubtedly constituted a matter of public interest. Consequently, the Court finds that the applicant was involved in the legitimate gathering of information on a matter of public importance. It observes that the authorities interfered in the preparatory stage of this process by creating an administrative obstacle. The Constitutional Court’s monopoly of information thus amounted to a form of censorship. Furthermore, given that the applicant’s intention was to impart to the public the information gathered from the constitutional complaint in question, and thereby to contribute to the public debate concerning legislation on drug-related offences, its right to impart information was clearly impaired.
    29.  There has therefore been an interference with the applicant’s rights enshrined in Article 10 § 1 of the Convention.
    2.  Whether the interference was justified
    30.  The Court reiterates that an interference with an 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 it 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.
    a.  “Prescribed by law”
    31.  The applicant requested the information, relying on the Data Protection Act which guarantees access to data of public interest. The Government argued that the relevant legislation provided a sufficient legal basis for the interference with the applicant’s right to freedom of expression, the treatment of ‚personal data’ overriding the element of public interest.
    32.  The Court is satisfied that the interference was “prescribed by law”, within the meaning of Article 10 § 2 of the Convention.
    b.  Legitimate aim
    33.  The applicant argued that the restriction could not be said to have served the protection of the MP’s rights, since the Constitutional Court had never asked his permission for the disclosure of his personal data. The Government argued that the interference served to protect the rights of others.
    34.  The Court considers that the interference in question can be seen as having pursued the legitimate aim of the protection of the rights of others, within the meaning of Article 10 § 2 of the Convention.
    c.  Necessary in a democratic society
    35.  The Court recalls at the outset that “Article 10 does not … 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” (Leander v. Sweden, 26 March 1987, § 74 in fine, Series A no. 116) and that “it is difficult to derive from the Convention a general right of access to administrative data and documents” (Loiseau v. France (dec.), no. 46809/99, ECHR 2003-XII (extracts)). Nevertheless, the Court has recently advanced towards a broader interpretation of the notion of “freedom to receive information” (see Sdružení Jihočeské Matky c. la République tchèque (dec.), no. 19101/03, 10 July 2006) and thereby towards the recognition of a right of access to information.
    36.  In any event, the Court notes that “the right to 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” (Leander, op. cit., § 74). It considers that the present case essentially concerns an interference – by virtue of the censorial power of an information monopoly – with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right of access to official documents. In this connection, a comparison can be drawn with the Court’s previous concerns that preliminary obstacles created by the authorities in the way of press functions call for the most careful scrutiny (see Chauvy and Others v. France, no. 64915/01, § 66, ECHR 2004‑VI). Moreover, the State’s obligations in matters of freedom of the press include the elimination of barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities. The Court notes at this juncture that the information sought by the applicant in the present case was ready and available (see, a contrario, Guerra and Others v. Italy, 19 February 1998,
    § 53 in fine, Reports of Judgments and Decisions 1998-I) and did not require the collection of any data by the Government. Therefore, the Court considers that the State had an obligation not to impede the flow of information sought by the applicant.
    37.  The Court observes that the applicant had requested information about the constitutional complaint eventually without the personal data of its author. Moreover, the Court finds it quite implausible that any reference to the private life of the MP, hence to a protected private sphere, could be discerned from his constitutional complaint. It is true that he had informed the press that he had lodged the complaint, and therefore his opinion on this public matter could, in principle, be identified with his person. However, the Court considers that it would be fatal for freedom of expression in the sphere of politics if public figures could censor the press and public debate in the name of their personality rights, alleging that their opinions on public matters are related to their person and therefore constitute private data which cannot be disclosed without consent. These considerations cannot justify, in the Court’s view, the interference of which complaint is made in the present case.
    38.  The Court considers that obstacles created in order to hinder access to information of public interest may discourage those working in the media or related fields from pursuing such matters. As a result, they may no longer be able to play their vital role as “public watchdogs” and their ability to provide accurate and reliable information may be adversely affected (see, mutatis mutandis, Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports 1996-II, p. 500, § 39).
    39.  The foregoing considerations lead the Court to conclude that the interference with the applicant’s freedom of expression in the present case cannot be regarded as having been necessary in a democratic society. It follows that there has been a violation of Article 10 of the Convention.
    II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
    40.  Article 41 of the Convention provides:
    “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
    A.  Damage
    41.  The applicant claimed 5,000 euros (EUR) for non-pecuniary damage suffered on account of the fact that, because of the restriction complained of, it had been unable to generate, and contribute to, an open and well-informed public debate on drug policy.
    42.  The Government contested this claim.
    43.  The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered.
    B.  Costs and expenses
    44.  The applicant claimed EUR 5,594 in respect of legal fees incurred before the Court (this amount, which includes VAT at 20%, would correspond to altogether 44 hours of work by its lawyer) and EUR 80 in respect of clerical costs.
    45.  The Government contested this claim.
    46.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 3,000 for costs and expenses under all heads.
    C.  Default interest
    47.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
    FOR THESE REASONS, THE COURT UNANIMOUSLY
    1.  Holds that there has been a violation of Article 10 of the Convention;

    2.  Holds that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered;

    3.  Holds
    (a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into Hungarian forints at the rate applicable at the date of settlement;
    (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

    4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
    Done in English, and notified in writing on 14 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
    Sally Dollé Françoise Tulkens
    Registrar President

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