Access to Public Information, Defamation / Reputation, Political Expression
Jereissati v. Mendonça de Barros
Closed Expands Expression
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The European Court of Human Rights held that the refusal of the national authorities to give the applicant access to materials classified as top secret by the former regime violated the applicant’s right to respect for his private life, given that he needed the materials to contest the state’s determination that he had collaborated with State Security agents.
This case analysis was contributed by Right2Info.org.
The applicant, a Slovak national, had held a leading post in the State administration of school systems. Under the Lustration Act of 1991 he was required to receive national security clearance in order to retain this position. In March 1992, the federal Ministry of Interior issued a negative determination concerning the applicant, finding that he had collaborated with agents of the (former) State Security Agency (StB) and accordingly the applicant resigned from his post. Information about the list of registered StB collaborators was then published in newspapers and on the internet. In May 1992, the applicant lodged an action for protection of his good name and reputation; he alleged that his registration as a collaborator was wrongful and unjustified. He argued that during the lustration proceedings, he had been denied access to guidelines that defined the category of “agent” and established rules of cooperation with agents, since the document was classified as “top secret”. The national courts established that the applicant’s meetings with StB agents amounted to formal collaboration, and that the applicant had failed to prove that that his registration as a collaborator had been contrary to the rules applicable at the material time.
The applicant referred the case to the ECtHR, alleging a violation of Article 8 of the Convention.
The Court noted that the applicant’s registration as a StB collaborator affected his name and reputation and therefore interfered with the requirements of Article 8 of the Convention. In order to decide whether the interference was justified, the Court examined whether the procedural protection at the domestic level of his right to respect for his private life was “practical and effective”. The Court acknowledged that there may be legitimate grounds to limit access to certain documents and other materials. However, the Court concluded that denial of access to the requested information in the circumstances of the instant case was unnecessary for three reasons.
First, the Court stated that the nature of lustration proceedings indicates that they are oriented towards the establishment of facts dating back to the communist era and they are not directly linked to the current functions and operations of the security services. Thus, “it cannot be assumed that there remains a continuing and actual public interest in imposing limitations on access to materials classified as confidential under former regimes”.
Second, due to the nature of the lustration proceedings, if the applicant to whom classified material relates is “denied access to all or most of the materials in question, his or her possibilities to contradict the security agency’s version of the facts would be severely curtailed”.
Third, since the respondent in lustration proceedings is the security agency, which at the same time has the power to decide what materials should remain classified and for how long, “this power is not consistent with the fairness of the proceedings, including the principle of equality of arms”.
The Court concluded that the domestic courts placed an unrealistic burden on the applicant, since he was required to prove that his designation as a collaborator was unjustified without having access to the applicable rules, while the State did have full access. In addition, the decision did not respect the principle of equality of arms. Accordingly, the Court found a violation of the applicant’s rights under Article 8.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by ruling that non-disclosure of materials to enable the applicant to contest proceedings against the state violated his right to privacy.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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