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European court rules against Hungary in free expression NGO human rights dispute

Human rights judges say Hungarian authorities were wrong in their decision to refuse to provide a NGO with information relating to the work of ex-officio defence counsel.

The European court declared this refusal a breach of the right of access to information.

In today’s Grand Chamber judgment in the case of Magyar Helsinki Bizottság v. Hungary (application no. 18030/11) the European Court of Human Rights held, by 15 votes to 2, that there had been :

a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

As just satisfaction (Article 41), the Court held, by 15 votes to 2, that Hungary was to pay the applicant NGO 215 euros (EUR) in respect of pecuniary damage and EUR 8,875 in respect of costs and expenses.

The case concerned the authorities’ refusal to provide an NGO with information relating to the work of ex officio defence counsel, as the authorities had classified that information as personal data that was not subject to disclosure under Hungarian law.

The court noted that the information requested from the police by the applicant NGO was necessary for it to complete the study on the functioning of the public defenders’ system being conducted by it in its capacity as a non-governmental human-rights organisation, with a view to contributing to discussion on an issue of obvious public interest.

In the court’s view, by denying the applicant NGO access to the requested information the domestic authorities had impaired the NGO’s exercise of its freedom to receive and impart information, in a manner striking at the very substance of its Article 10 rights.

The court noted that the subject matter of the survey concerned the efficiency of the public defenders system, an issue that was closely related to the right to a fair hearing, a fundamental right in Hungarian law and a right of paramount importance under the Convention, and pointed out that the NGO had wished to explore its theory that the pattern of recurrent appointments of the same
lawyers was dysfunctional.

The court found in particular that the public defenders’ privacy rights would not have been negatively affected had the applicant NGO’s request for the information been granted, because although the information request had admittedly concerned personal data, it did not involve information outside the public domain.

The Court also held that the Hungarian law, as interpreted by the domestic courts, had excluded any meaningful assessment of the applicant NGO’s freedom-of-expression rights, and considered that in the present case, any restrictions on the applicant NGO’s proposed publication – which was intended to contribute to a debate on a matter of general interest – ought to have been subjected to the utmost scrutiny.

Lastly, the court considered that the Government’s arguments were not sufficient to show that the interference complained of had been “necessary in a democratic society” and held that, notwithstanding the discretion left to the respondent State (its “margin of appreciation”), there had not been a reasonable relationship of proportionality between the measure complained of (refusal to provide the names of the ex officio defence counsel and the number of times they had been appointed to act as counsel in certain jurisdictions) and the legitimate aim pursued (protection of the rights of others).

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