See first: http://merlin.obs.coe.int/iris/2006/9/article1
or in German: http://wkeim.bplaced.net/files/echr-19101-03.htm
IRIS:
RECHTLICHE RUNDSCHAU. DER EUROPÄISCHEN AUDIOVISUELLEN INFORMATIONSSTELLE. 2006-9
Hole court decision in French: http://www.legislationline.org/legislation.php?tid=219&lid=7144&less=false
Further info:
(...)
6. In a July 2006 admissibility decision, however, the Fifth
Section of the Court, in an
apparent departure from the Guerra line of cases, held that
Article 10 did grant the
applicant, a Czech environmental group, a right of access to
documents regarding the
design and construction of a nuclear reactor.(10) The
Sdruženi Court referred to the Guerra
and Roche precedents, and noted that “it is difficult to
deduce from the Convention a
general right of access to data and documents of an
administrative nature.” This
notwithstanding, the Court proceeded to hold that, under the
circumstances of the case –
in which the applicant was a party to an administrative
proceeding reviewing the
environmental impact of the reactor – the rejection of the
applicant’s request for
information amounted to an interference with “its right to
receive information” under
Article 10.(11) Such an interference ought to be subjected to the
usual test of paragraph 2 of
Article 10, which allows for restrictions of the right to receive
information in order to
protect certain enumerated interests, such as national security,
public safety, or the rights
of others. As in other contexts, the Members States enjoy a
certain margin of appreciation
in striking the balance between the right to information and
protected interests.(12)
7. The Sdruženi Court recognized an independent Article 10
right to receive documents held
by public authorities, which does not rely on any other
Convention rights or interests. It
nevertheless stopped short of defining the contours of this
right, or reconciling its holding
with the Court’s prior case law. The current case gives the
Court a renewed opportunity to
clarify these aspects of its jurisprudence, in line with the
clear trends of European and
international law.
_____________________________________________________________________________________________
(10) Sdruženi Jihoceské Matky v. Czech Republic, Decision
of July 10, 2006 (Admissibility).
(11) Id., at 10. In the French original: “Dans ces
conditions, la Cour admet que le rejet de ladite demande a
constitué une ingérence au droit de la requérante de recevoir
des informations.”
(12) Id., at 11. The Court held that, under the facts of the
case, the refusal of the Czech authorities to provide the
requested information was justified on the grounds of public
safety and commercial confidentiality. In addition,
the requested data were not sufficiently relevant to the
administrative proceedings at stake.
Source: http://www.justiceinitiative.org/db/resource2?res_id=103453 Brief GERAGUYN KHORHURD PATGAMAVORAKAN AKUMB v. ARMENIA
(...)
The decision of 10 July 2006 in the case of Sdruženi
Jihoceské Matky v. Czech Republic is important as it contains an
explicit and undeniable recognition of the application of Article
10 in cases of a refusal of a request to have access
to public or administrative documents. The right of access to
administrative documents is not an absolute one and can
indeed be restricted under the conditions of Article 10 § 2,
which implies that such a refusal must be prescribed by
law, have a legitimate aim and must be necessary in a democratic
society. The decision of the Court of 10 July 2006
gives additional support and opens new perspectives for citizens,
journalists and NGO’s for having access to
administrative documents in matters of public interest.
Of major importance in this perspective is also Recommendation
Rec (2002)2 of the Committee of Ministers of 21 February
2002 on Access to Official Documents guaranteeing a right of
access to official documents to any person, without any
discrimination on any ground including national origin.
Additionally Article XI of the Recommendation considers
it as a duty of a public authority, “at its own initiative
and where appropriate, to take the necessary measures
to make public information which it holds when the provision of
such information is in the interest of promoting
the transparency of public administration and efficiency within
administrations or will encourage informed
participation by the public in matters of public interest”.
The Explanatory Memorandum of the Recommendation
contains the provision that “in order to allow easy access
to official document, the public authorities should
provide the necessary consultation facilities, such as
appropriate technical equipment, including that making
use of new information and communication technology” (Art.
X, Complementary measures).
Source: http://www.coe.int/t/e/human_rights/media/1_Intergovernmental_Co-operation/MC-S-IS/IGFBlogSubmission_en.pdf
The Sdruženi
Jihoceské Matky decision
On 10 July 2006, the European Court of Human Rights gave an admissibility
decision in the case Sdruženi
Jihoceské Matky v. Czech Republic.29 The case
concerned
a refusal to give an ecologist Non-Governmental Organisation access to
documents and plans regarding a nuclear power station. Although the Court
decided
that there had not been a breach of Article 10, it explicitly recognized that
the refusal by the Czech authorities was an interference with the right to
receive
information. Hence, the refusal had to meet the conditions set forth in Article
10
§ 2. The Court declared the application manifestly ill founded, because the
criteria
in § 2 had been met. It considered that the Czech authorities had motivated
their refusal in a pertinent and sufficient way. Next, the refusal was justified
for
the protection of the rights of others (industrial secrets), in the interest of
national
security (risk of terrorist attacks) and for the protection of health. The Court
also
emphasized that the request to have access to essentially technical information
about the nuclear power station did not reflect a matter of public interest. For
us,
the crucial point however is the fact that Article 10 was considered to be
applicable
in the first place.
Source:
Access
to State-Held Information as a Fundamental Right under the European Convention
on Human Rights
Wouter Hins* & Dirk Voorhoof**
http://www.ivir.nl/publications/hins/EuConst_Hins_Voorhoof.pdf
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