Key facts of the case:
- Between 2005 and 2007 the applicant NGO conducted a project “Model Legal Aid Board Programme” aimed at developing and testing a model to overcome shortcomings in the system for the ex officio appointment of defence counsel. The study summarising the outcome of the project was published in 2007 under the title “Without Defence”, suggesting that there should be a standard set of criteria developed to assess the quality of defence counsel’s work.
- In 2008, as a follow-up to its 2005-2007 survey, the applicant NGO launched a new project entitled “The Right to Effective Defence and the Reform of the ex-Officio Appointment System”. Together with the Ministry of Justice and Law Enforcement and various bar associations, the applicant NGO developed a questionnaire aimed at evaluating the performance of defence counsel. It also assessed the quality of legal representation provided by ex officio appointed and retained defence counsel, by examining the case files in 150 closed criminal cases. In parallel, the applicant NGO made a contribution in respect of Hungary to the comparative research project “Effective Defence Rights in the European Union and Access to Justice: Investigating and Promoting Best Practices” carried out in nine European countries and funded by the European Commission and the Open Society Justice Initiative. The results of the two projects were presented at a conference in April 2009, the conclusions of which were summarised in the report “In the Shadow of Suspicion: A critical account of enforcing the right to an effective defence”.
- In addition, the applicant NGO carried out continuous advocacy activities for reform of the ex officio appointments system; in cooperation with the Budapest Bar Association, it also drew up recommendations for a proposed code of professional ethics for ex officio defence counsel.
- In the applicant NGO’s assessment, its research showed that the system of ex officio appointed defenders did not operate adequately, essentially because the investigative authorities, in particular the police, were free to choose defence counsel from a list compiled by the relevant bar associations. This gave rise to distrust on the part of defendants. Furthermore, according to the applicant NGO’s findings, many police departments had recourse to the same lawyers or law firms in the majority of cases, resulting in defence counsels’ dependency on ex officio appointments to earn their living. The applicant NGO also concluded that the selection system lacked transparency.
- In 2009, in the framework of the project “Steps Towards a Transparent Appointment System in Criminal Legal Aid”, an experimental method was put in place, in cooperation with the applicant NGO, the county bar associations and certain county police departments. A key facet of this method was replacement of the existing system of discretionary appointments by a randomised computer-generated one.
- As a feature of the project, the applicant NGO requested the names of the public defenders selected in 2008 and the number of assignments given to each lawyer from a total of twenty-eight police departments, situated in the seven Hungarian regions. The aim of the data request was to demonstrate whether there existed discrepancies in police departments’ practice in appointing defence counsel from the lists provided by the bar associations. These requests were made under section 20 (1) of Act no. LXIII of 1992 (“the Data Act”). The applicant NGO maintained that the number of defence counsel appointments was public-interest data (közérdekű adat) and that thus the names of defence counsel were data subject to disclosure in the public interest (közérdekből nyilvános adat).
- Seventeen police departments complied with the request; a further five police departments disclosed the requested information following a successful legal challenge by the applicant NGO.
- On 18 August 2009 the applicant NGO addressed the same request to the Hajdú-Bihar County Police Department, seeking access to information concerning the names of defence counsel appointed in the police department’s area of jurisdiction and the number of appointments given to each defence counsel.
- In its response of 26 August 2009 the Hajdú-Bihar County Police Department refused the applicant NGO’s request, stating that “the names of the defence counsel are not public-interest data nor information subject to disclosure in the public interest under section 19(4) of the Data Act, since defence counsel are not members of a body performing State, municipal or public duties. Thus their names constitute private data, which are not to be disclosed under the law”. The police department also referred to the disproportionate burden the provision of the data would impose on it.
- A similar request by the applicant NGO was rejected by the Debrecen Police Department on 27 August 2009.
Results (sanctions) and key consequences of the case:
FOR THESE REASONS, THE COURT
- Joins the Government’s preliminary objection to the merits and dismisses it, by a majority;
- Declares, by a majority, the application admissible;
- Holds, by fifteen votes to two, that there has been a violation of Article 10 of the Convention;
- Holds, by fifteen votes to two,
(a) that the respondent State is to pay the applicant NGO, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
- (i) EUR 215 (two hundred and fifteen euros), plus any tax that may be chargeable, in respect of pecuniary damage;
- (ii) EUR 8,875 (eight thousand eight hundred and seventy-five euros), plus any tax that may be chargeable to the applicant NGO, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 8 November 2016.
- Furthermore, Article 42 of the European Union’s Charter of Fundamental Rights as well as Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 guarantee to citizens a right of access to documents held by the EU institutions, subject to the exceptions set out in Article 4 of the Regulation (see paragraphs 55‑56 above).
DISSENTING OPINION OF JUDGE SPANO JOINED BY JUDGE KJØLBRO
- The Court finds that as the vast majority of member States of the Council of Europe have enacted primary legislation recognising a statutory right of access to information and/or official documents held by public authorities, the Court is satisfied that a “broad consensus exists ... on the need to recognise an individual right of access to State-held information so as to enable the public to scrutinise and form an opinion on any matters of public interest, including on the manner of functioning of public authorities in a democratic society”. Further, referring to Article 19 of the ICCPR, the views of the United Nations Human Rights Committee and the UN Special Rapporteur on Freedom of Opinion and Freedom of Expression, the Court finds that a “high degree of consensus has also emerged at the international level”. However, while admitting that these conclusions at the international level were adopted in regard to Article 19 of the ICCPR, the Court considers, notwithstanding a significant difference in the wording, which the Court acknowledges, that their relevance for the present case derives from the fact that the right of access to public-interest data and documents is considered “inherent in freedom of expression”. The Court also refers, in support of its findings, to Article 42 of the Charter of Fundamental Rights of the European Union, Regulation (EC) No. 1049/2001 and the 2009 Council of Europe Convention on Access to Official Documents, although the latter has only been ratified by seven member States. It concludes that these norms “[denote] a continuous evolution towards the recognition of the State’s obligation to provide access to public information”. In the Court’s view, the Council of Europe 2009 Convention “indicates a definite trend towards a European standard, which must be seen as a relevant consideration” (see paragraphs 139-45 of the judgment). 32. Once again, the Court’s reasoning here is problematic on several levels.
- Second, with regard to the Court’s reference to Article 42 of the EU Charter of Fundamental Rights, it suffices to note that the Charter makes a clear distinction between freedom of expression and access to official documents held by EU organs, the former protected by Article 11 § 1, which is textually the same as Article 10 § 1 of the Convention, and the second provided by Article 42 of the Charter on access to official documents, as noted by the Court. The Court’s reference to Article 42 of the EU Charter thus seems actually to prove the opposite of what is intended by the majority in its reasoning. In other words, due to the fact that access to official documents is not inherent in freedom of expression, the EU Charter provides for that right in a special provision that is distinct from the provision guaranteeing free speech. In addition, it is important to stress that Article 42 of the Charter only covers access to documents held by EU institutions and bodies. Despite the extensive regulatory powers conferred by the Treaty on the Functioning of the European Union, member States of the latter have opted, as regards a wider right of access to documents held by national authorities, to retain their margin of discretion and legislative competence in this area.