Access to Public Information
Bubon v. Russia
Closed Expands Expression
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The European Court of Human Rights held that the Hungarian Ministry of the Interior’s reluctance to comply with the domestic Courts’ rulings and allow unrestricted access to documents sought for historical research purposes was not lawful and constituted a violation of article 10 (freedom of expression) of the European Convention on Human Rights. The matter had been brought by an historian seeking access to information relating to the functioning of the country’s security services during the 1960s. The Court criticized the absolute refusal of the Ministry to facilitate access to the requested information and noted that “access to original documentary sources for legitimate historical research was an essential element of the exercise of the applicant’s right to freedom of expression” (para. 43).
This case analysis was contributed by Right2Info.org.
In September 1998, János Kenedi, an historian living in Budapest who specialized in “the functioning of the secret services of dictatorships, comparative studies of the political police forces of totalitarian regimes and the functioning of Soviet-type States” (para. 6), had sought access to certain documents from the Hungarian State Security Service within the Hungarian Minister of the Interior. The information he sought related to the functioning of the security services during the 1960s. In October 1998, the Ministry denied his request and “made reference to a decision of 29 October 1998 classifying the documents as State secrets until 2048” (para. 8). In December 1998, Kenedi approached the Budapest Regional Court under section 21 of the Protection of Personal Data and the Public Nature of Data of Public Interest Act, 1992 on the grounds that the documents were necessary for his historical research (para. 9).
The Budapest Regional Court granted Kenedi access, finding that although the documents had been classified during the Communist era, they had not been reclassified as required by section 28(2) of the State and Service Secrets Act, 1995 and so the documents were no longer classified (para. 10).
The Ministry attempted to appeal the Regional Court’s judgment to the Supreme Court, but the Supreme Court rejected the appeal on the grounds that it had been brought out of time (para. 11). The Ministry then informed Kenedi that they would provide him with the documents, but only if he signed a confidentiality agreement (para. 12). Kenedi rejected this condition, and in October 2000 he sought the enforcement of the Regional Court’s judgment, arguing that the Ministry’s “imposition of a condition of confidentiality was unacceptable” (para. 13). The Regional Court upheld Kenedi’s enforcement application, holding that the Ministry was not entitled to require confidentiality from Kenedi before granting him access to the documents (para. 14).
After various other unsuccessful attempts before the Courts, in October 2002 the Ministry provided Kenedi with a permit to access the documents but “restricted him from publishing the information thus acquired to the extent that ‘State secrets’ were concerned” (para. 16).
The Regional Court held that the restricted access constituted a lack of compliance with the order, and fined the Ministry 100,000 Hungarian forints (HUF) (approximately €400 in 2009).
Although most of the documents were made public through a transfer to the National Archives in December 2003, the Regional Court imposed an additional fine of HUF 300,000 (approximately €1,200 in 2009) in respect of the one document that had not been transferred to the Archives (para. 19). The Ministry continued to pursue legal avenues, arguing that they were no longer in control of the remaining document, but was unsuccessful. However, Kenedi still did not have access to the document and he approached the European Court of Human Rights, arguing that the failure to provide him with the documents constituted a violation of article 6 of the European Convention on Human Rights.
Although the European Court of Human Rights had to determine whether the failure to provide unrestricted access to all the requested documents constituted an infringement of article 6 (which protects the right to a fair trial within a reasonable time), the Court explained that it deemed Kenedi’s complaint to fall under article 10 of the Convention as well. Article 10 protects the right to freedom of expression and to receive and impart information (para. 41).
Before the Court the Hungarian government conceded that Kenedi’s right to access to information had been infringed but that the infringement was justified on the basis of the need to protect national security (para. 42). In addition, the government argued that Kenedi had been unreasonable in requesting unrestricted access, and that the delay in him completing his research was because of this unreasonableness.
With reference to its own decision in Társaság a Szabadságjogokért v. Hungary App No. 37375/05 the Court held that “access to original documentary sources for legitimate historical research was an essential element of the exercise of the applicant’s right to freedom of expression” (para. 43).
The Court acknowledged that the government had accepted that there was an infringement of article 10, and then examined whether the infringement was permissible according to a three-part test established in article 10(2) which requires that any interference should be “prescribed by law”; pursue one or more of the legitimate aims; and be necessary in a democratic society (para. 43).
The Court held that “the obstinate reluctance of the respondent State’s authorities to comply with the execution orders was in defiance of domestic law and tantamount to arbitrariness” (para. 45) and that, accordingly, the interference with Kenedi’s article 10 rights was not lawful (para. 45).
In addition, in respect of the article 6 violation, the Court held that “the length of the proceedings was excessive and failed to meet the “reasonable time” requirement” and that there was therefore a violation of the right (para. 39).
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