Friday, 24 February 2017

Book on Family Rights and the ECHR

Carmen Draghici (City University London School) has just published the book 'Legitimacy of Family Rights in Strasbourg Case Law- ‘Living Instrument’ or Extinguished Sovereignty?' with Hart Publishing. It is both available as hardback and e-book. This is the book's abstract:

'Modern family life exhibits a huge variety of new forms. Legal responses to these new forms illustrate the continuing differences between European nations. Nonetheless, the Strasbourg Court has been increasingly active in this area, which provides fertile ground for testing the legitimacy of the Court's interpretation of the European Convention on Human Rights. When national law refuses to recognize a claimed right, litigants regularly reassert that right before the Strasbourg Court. This has forced it to seek answers to complex domestic controversies, such as the legal recognition for same-sex partners and transgender persons, the ethics of adoption and reproductive rights, the legal regime for cohabitants, or the accommodation of immigrants' aspiration to family reunion.

Placing family rights at the core of the judicial legitimacy debate, this book provides a critical analysis of the standards of family rights protection under the Convention. It evaluates the Court's interpretive methodology and discusses the tensions inherent in its supranational quasi-constitutional function. These include the risk of excessive deference to national authorities, at the expense of the effective enforcement of universal rights; the addition of 'new rights'; and inattention to the division of responsibilities between democratic processes within sovereign States and the subsidiary international review.'

Wednesday, 15 February 2017

ESIL - European Court Conference on Migration

Pre-announcement: the European Society for International Law and the European Court of Human Rights will co-organise a one-day conference on ‘Migration and the European Convention on Human Rights’. The conference will take place on Friday 6 October 2017 at at the Court in Strasbourg. The programme will include presentations by judges from the European Court of Human Rights as well as international law scholars. 

More information on the programme and details of how to register will be available in due course on the website of the European Society of International Law.

Monday, 6 February 2017

MOOC on the ECHR Open for Registration

After its very successful first airing, with over 5000 participants at the end of last year, we will again run our Massive Open Online Course (MOOC) starting next week 13 February. Registration is open now! To enroll, please go to the Coursera platform.

The MOOC entitled 'Human Rights for open Societies - An introduction into the ECHR' was developed together with my Utrecht University colleagues professor Janneke Gerards and dr Paulien de Morree. This is the abstract of our six-week course:

'Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal. Equip yourself and learn more about what human rights are and how they work. 

In this course, we will introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. You will see when and how people can turn to the European Court of Human Rights to complain about human rights violations. You will learn how the Court tries to solve many of the difficult human rights dilemmas of today. We will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. And we will address the rights of migrants, refugees, and other vulnerable groups. And, of course, we will see whether it is possible to restrict rights and if so under what conditions. You will even encounter watchdogs and ice cream in this course. We invite you to follow us on a journey of discovery into the European Convention!'

Please watch this short introduction video to get an impression:


Friday, 3 February 2017

Conference on Principled Resistance Against European Court Judgments

Professor Marten Breuer of the Law School of the University of Konstanz in Southern Germany is organising a conference entitled "Principled Resistance against ECtHR Judgments – a New Paradigm?". It will take place in the town hall of Konstanz on 1 and 2 June and will feature both country-specific (Russia, UK, Italy, Switzerland and Germany) and general contributions as well as a final roundtable in which I will also participate. The full programme can be found here. This is the organisers' abstract about the conference:

'In recent years, there have been more and more instances where national courts, in a principled manner, declared their unwillingness or inability to give suit to an ECtHR judgment. So far, those cases have initiated discussions about the Court’s ‘legitimacy’ and about the necessity of having a ‘dialogue between judges’. The conference takes a different approach, labelling such cases examples of ‘principled resistance’. The research question is whether those cases reveal a general pattern: Has the Court overstretched its competence by its evolutive interpretation so that cases of ‘principled resistance’ may be explained as reactions necessary to preserve national identity? Or is the current accumulation of such cases just a coincidence and are the underlying rationales too divergent to reveal a general pattern? The conference aims to give a dogmatic answer to those questions and thereby to help preserving the long-term functioning of the Convention.'

Registration can be done here.

Thursday, 26 January 2017

The Court in 2016: Overview

At his annual press conference today, the President of the European Court of Human Rights, Guido Raimondi, presented an overview of the Court's work over the past year. The most important issues: in 2016, for the first time after a two-year decrease, the number of incoming cases was on the rise again, and quite considerably so. at the end of December 2016, 79,750 were pending in Strasbourg. this is a rise of 23% compared to a year earlier. After the decreases of the previous years, which seemed to make inroads in the huge backlog of cases, this rise is worrying obviously. Especially, if we consider that the Court internally has been working even more efficiently in 2016 (a rise of 32% of allocated cases) To a considerable extent, it seems to be caused by complaints about detention conditions in Hungary and Romania and with the situation in turkey, especially after the failed July coup. Moreover, the number of decisions on interim measures also rose with a staggering 56% to 1,926 in 2016. Two thirds of these requests concern expulsion cases.

Further statistics (including overviews for each ECHR State Party) also give an indication were human rights are under pressure on the largest scale: at the end of 2016 the majority of pending applications concerned Ukraine (22.8 %), Turkey (15.8 %), Hungary (11.2%), Russia (9.8 %), and Romania (9.3 %). Almost 70 percent of all pending cases thus concern only five countries. Half the priority cases concerned Ukraine. As to violations found in 2016 by the Court, a handy overview shows that the top countries against which the Court found at least one human rights violation per case are largely the same ones: Russia (228 judgments), Turkey (88), Romania (86), Ukraine (73), Greece (45) and Hungary (41).

The full webcast of the press conference can be watched here.

Wednesday, 25 January 2017

New Judges in respect of the Netherlands and Hungary

Yesterday, the Parliamentary Assembly of the Council of Europe elected two new judges to the European Court of Human Rights. For the Netherlands, judge Jolien Schukking was elected. Judge Schukking was preferred over two other similarly very well-qualified Dutch ECHR experts, professors Rick Lawson and Martin Kuijer. All three are currently fellow board member here at the Dutch human rights law review (Nederlands Tijdschrift voor de Mensenrechten) - as a journal board we are obviously very proud of all three and especially of Jolien. Many congratulations, Jolien!

Jolien Schukking is an experienced national judge, currently in the Administrative High Court for Trade and Industry (College van Beroep voor het bedrijfsleven), one of the (four) highest Administrative Courts in the Netherlands. Previously, she was a judge at the first instance court of Utrecht, dealing with both refugee law and criminal law cases. She has also been active as a solicitor. Jolien Schukking is no stranger to Strasbourg, as she was a senior legal officer with the dutch Foreign Ministry in the past, amongst others representing the country in human rights proceedings at the European Court as well as leading the Dutch delegation on negotiations on Protocols 12 and 13 ECHR. She has even worked at the former European Commission of Human Rights for some time. She also has experience in UN human rights law. Jolien Schukking has also been active in training and teaching judges on the ECHR internationally and is currently a board member of both the Foundation Judges for Judges and a member of the International Association for Refugee Law Judges.

In respect of Hungary, the choice fell on Mr Péter Paczolay. Again, a very experienced judge, having been judge at Hungary's Constitutional Court from 2006 to 2015, of which he was President since 2008 until 2015, when the recent changes to the Constitutional Court were made by the government. Also well-known and appreciated in the Council of Europe, e.g. though his work for the Venice Commission, the Commission “for Democracy through Law” in which he served and three years ago was made honorary President. Whatever the current political developments in his own country, it is great to see the Parliamentary Assembly did value his credentials in staunchly defending and upholding the rule of law (to note: an earlier list of three candidates submitted by Hungary was sent back by the Assembly). Congratulations too! 

Both new judges have been elected for a term of nine years and should start working in Strasbourg within three months.

Thursday, 19 January 2017

Guest Post on Grand Chamber Judgment in Hutchinson

As the first post of the new year on the ECHR Blog, it is my pleasure to introduce a guest post by Kanstantsin Dzehtsiarou of the University of Liverpool on this week's Grand Chamber judgment on life sentences without parole in the case of Hutchinson v. the United Kingdom.

Is there hope for the right to hope?
Kanstantsin Dzehtsiarou, University of Liverpool

A disappointing Chamber judgment in Hutchinson v the UK led on 17 January 2017 to an equally disappointing Grand Chamber judgment in the same case. This case was a follow-up from the Court’s judgment in Vinter v the UK in which the Court ruled that life sentences without parole which cannot be reviewed are incompatible with the Convention as they violate Article 3 ECHR – the prohibition of torture and inhuman and degrading treatment and punishment. The Court has poetically in this context come up with the term “a right to hope”, meaning that a life prisoner should have hope to be released however remote this hope might be. This blog post does not take a stand on the issue of whether the judgment in Vinter was a correct interpretation of the Convention. Rather I will argue here that Vinter’s overturn in Hutchinson lacks consistency and that it is based on a very thin legal foundation.

I have already considered the facts of Hutchinson case and its connection with Vinter in my previous blog post on this issue and therefore I will below only consider the reasoning of the Grand Chamber of the Court.

Magic powers of the Court: it can see something where there is nothing

In Hutchinson, the Court has overruled its previous judgment. Usually, this is done by means of evolutive interpretation. Arguably, in this case we have an instance of interpretation of evolution which lowers rather than heightens human rights protection. Although this is not unprecedented in the Court’s history, one can argue that the Court needs serious reasons to depart from its own case-law not only in cases of ‘progressive’ evolution but especially in opposite cases. On more than one occasion the Court itself has pointed out that evolutive interpretation should be justified by particularly strong reasons. In the current climate when there is a growing political appetite to curtail human rights, a Court interpretation towards change in this direction without good reasons may create a dangerous precedent for further reduction of basic human rights guarantees.

It is argued here that the Court simply had no reason to depart from Vinter. The Court focused on the McLoughlin decision of the Court of Appeal of England and Wales which in the view of the majority had clarified the applicable law and for that reason, unlike in Vinter, the Court could no longer find a violation of Article 3 ECHR. I dare to suggest that the McLoughlin judgment merely reiterated what was known at the time when the judgment in Vinter was deliberated and therefore McLoughlin did not provide a clear reason to depart from it.

This is so, for a number of reasons. First, it was known at the time of the Vinter judgment that the Secretary of State can revise a life sentence without parole in a very narrow set of circumstances provided by the Lifer Manual. Despite the findings of the Grand Chamber in Vinter, the Secretary of State can still revise the life sentence accoridng to the same Lifer Manual which is still in force.

Secondly, the Court of Appeal suggested in McLoughlin that “The Manual cannot restrict the duty of the Secretary of State to consider all circumstances relevant to release on compassionate grounds. He cannot fetter his discretion by taking into account only the matters set out in the Lifer Manual. This was also known at the time of Vinter. Back then, the European Court had explicitly considered the earlier judgment of the Court of Appeal in R v. Bieber in which Lord Phillips ruled that “At present it is the practice of the Secretary of State to use this power sparingly [power to release], in circumstances where, for instance, a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated. If, however, the position is reached where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment, we can see no reason why, having particular regard to the requirement to comply with the Convention, the Secretary of State should not use his statutory power to release the prisoner.” It is quite clear that Lord Phillips suggested that the Secretary of State can go beyond what is provided for in the Lifer Manual under certain circumstances which were quite ambiguous at the time of Vinter and that they have not been clarified ever after. Moreover, it seems that neither at the time of Vinter nor at the time of Hutchinson were these suggested broad powers used by the Secretary of State in practice.

Thirdly, the Court referred to the Human Rights Act of 1998, saying that the Secretary of State should take into account the case law of the European Court in making his or her decision about a possible release of the prisoner. The Human Rights Act came into force in the year 2000. The Court delivered its judgment in Vinter in 2013 and it was known by the Court at that time that Strasbourg jurisprudence should be taken into account by the Secretary of State. This knowledge did not prevent the Court from finding a violation then. The limitations of the Human Rights Act argument were also highlighted by the dissenting judge Pinto de Albuquerque.

Finally, the Court was concerned in Vinter with the lack of clarity in relation to the timeframe of review of the sentence, in other words there was no minimal term after which this review should have taken place. In Hutchinson, the European Court stated that it is not a problem any longer because the prisoner can apply to the Secretary of State at any point during his or her sentence. Curiously, at the time of Vinter I would suggest the rule was exactly the same.

The conclusion is that the Court has changed its stance without having a concincing explicit reason to do so. It seems that the Court implicitly acknowledged that its judgment in Vinter was an incorrect reading of the Convention and Hutchinson has clarified this. The Court did not state that but the very thin foundation of the reasoning in Hutchinson suggests so.

What comes after Hutchinson?

Arguably, the right to hope still stands as this key standard has not been (at least explicitly) overruled by the Court. It just changed how it defines the term– even a glimmer of hope is now sufficient. Vinter had a significant influence on the case-law of the ECtHR. Just to name a few examples: the Court prevented extradition of the applicant to the country in which he could be sentenced to life imprisonment without parole in Trabelsi v Belgium, the Court used the fact that life prisoners can have a hope for release to justify the need for rehabilitation of such prisoners and as a result found a violation of the Convention in Khoroshenko v Russia for not providing family visits during first ten years of life imprisonment. After Hutchinson, the clarity of the standards of Vinter is no longer applicable law.

Now, I can see two possible consequences of the Grand Chamber judgment in Hutchinson. First, it will be a sui generis standard for the United Kingdom while all other states will be under a more stringent standard developed in Vinter. This outcome has an obvious disadvantage of creating double standards in human rights protection. The second possibility is that Hutchinson will justify a broader margin of appreciation for the Contracting Parties in this area and as a result it will cause loosening of the standards that were developed in the recent case-law of the Court.


As it is often said – every cloud has a silver lining. It is possible for the Court to review its judgment in Hutchinson. If the Secretary of State continues to use her powers very restrictively, and there will be no effective way to facilitate the right to hope in practice, the Court can come back to this issue. It has done that in the past. For example, in Sheffield and Horsham, the Court warned the UK that if it does not improve transgender rights protection it will find a violation of the Convention in the future. While not condemning the UK for a violation in Sheffield and Horsham, only four years later the Court found a violation in the very similar case of Christine Goodwin v the UK. Although the situation in Hutchinson and in Sheffield and Horsham are obviously different the Court might be asked to reconsider this situation when an appropriate application is submitted.

Thursday, 22 December 2016

End of Year ECHR Readings

As the year wraps up, please find a final selection of ECHR-related readings of 2016. I wish all the readers of this blog a good 2017!

* Stijn Smet, Resolving Conflicts between Human Rights. The Judge's Dilemma (Routledge Publishers 2016):

Under the influence of the global spread of human rights, legal disputes are increasingly framed in human rights terms. Parties to a legal dispute can often invoke human rights norms in support of their competing claims. Yet, when confronted with cases in which human rights conflict, judges face a dilemma. They have to make difficult choices between superior norms that deserve equal respect. In this high-level book, the author sets out how judges the world over could resolve conflicts between human rights. He presents an innovative legal theoretical account of such conflicts, questioning the relevance of the influential proportionality test to their resolution. Instead, the author develops a novel resolution framework, specifically designed to tackle human rights conflicts. The book combines concerted normative theory with profound practical analysis, firmly rooting its theoretical arguments in human rights practice. Although the analysis draws primarily on the case law of the European Court of Human Rights, the book’s core arguments are applicable to judicial practice in general. As such, the book should be of great interest to academics, postgraduate students and legal practitioners in Europe and beyond. The book is particularly suited for use in advanced courses on legal theory, human rights law and jurisprudence.

* Michael O’Boyle, 'Emergency Government and Derogation under the ECHR', European Human Rights Law Review, Issue 4 (2016) pp. 331-341.

This Opinion takes the recent French derogation from the ECHR as the starting point for a general reflection on the notions of derogation and emergency government and the need for legal safeguards against human rights abuses that are (and always have been) associated with states of emergency. It also looks at the differing views that have been expressed by judges on the meaning of the notion in art.15 “threatening the life of the nation”, the role played by the margin of appreciation in the interpretation of this provision and the concept of proportionality, arguing that the art.15 language “strictly required by the exigencies of the situation” denotes the need for greater Strasbourg review in keeping with practice in certain judgments. Finally, it highlights the vital role of the judiciary in times of emergency as a check against excesses and ultimately as a guardian of the democratic system as a whole—a role considerably undermined by the measures against the judiciary taken by Turkey following the recent abortive coup.

* Lize Glas and Jasper Krommendijk, 'From Opinion 2/13 to Avotiņš: Recent Developments in the Relationship between the Luxembourg and Strasbourg Court', Human Rights Law Review, Vol. 17(2) 2017, forthcoming, but available on SSRN

With its recent judgment in Avotiņš v Latvia of May 2016, the ECtHR arrived at its long-awaited answer to Opinion 2/13 of the CJEU. Many commentators hinted at the possibility that the ECtHR would drop its Bosphorus presumption following Opinion 2/13 because of the critical approach of the CJEU towards the ECtHR in Opinion 2/13. The ECtHR, however, chose to uphold the Bosphorus doctrine in Avotiņš, a case dealing with the Brussels I Regulation on the mutual recognition of civil law judgments. At first sight, the response of the ECtHR in Avotiņš does not seem antagonistic and it seems that the ECtHR avoided entering into an arms race with the CJEU. Closer scrutiny of the judgment reveals, however, that this is not entirely true.

* Graham Butler, 'The Ultimate Stumbling Block? The Common Foreign and Security Policy, and Accession of the European Union to the European Convention on Human Rights', Dublin University Law Journal, Vol, 39(1) (2016), pp. 229-244.

* Nasia Hadjigeorgiou, 'Remedying Displacement in Frozen Conflicts: Lessons From the Case of Cyprus', Cambridge Yearbook of European Legal Studies, Vol. 18 (2016) pp. 152-175:

This article examines the jurisprudence of the European Court of Human Rights, in order to assess the effectiveness of the remedies provided and procedures followed by the Immovable Property Commission (IPC), a mechanism that was established by Turkey in order to remedy displaced Greek Cypriots. It recommends changes for the improvement of the IPC and argues that with their adoption, the Commission could act as a blueprint for the establishment of similar remedying bodies in other frozen conflicts as well. Such institutions are not only important in terms of states’ compliance with their human rights obligations, but can also contribute to the resolution of the underlying conflict itself.

* Kristin Henrard, 'The European Court of Human Rights, Ethnic and Religious Minorities and the Two Dimensions of the Right to Equal Treatment: Jurisprudence at Different Speeds?', Nordic Journal of Human Rights, Vol. 34, No. 3 (2016).

Monday, 28 November 2016

Conference on the European Court and Media Freedom

On 24 March 2017, the European Centre for Press and Media Freedom, supported by the Council of Europe, will organsie a conference on media freedom in Strasbourg. The conference, entitled “Promoting dialogue between the ECtHR and the media freedom community”. will be held in the Council of Europe’s Agora Building in Strasbourg. The event is orgnaised in cooperation with a number of press freedom NGOs as well as academic institutes. This is the organisers' abstract of the conference's content and aims: 

"The one-day conference aims to bring together judges and lawyers of the European Court of Human Rights and media lawyers, academics, policymakers, journalists, media professionals and civil society representatives active in the field of media law and freedom of expression. It will provide a platform to discuss the ECtHR case law in cases concerning freedom of expression of media and journalists.Key themes to be discussed during the conference include:

* Defamation, privacy and the processing of personal data;
* Investigative journalism, access to information, protection of sources and whistle-blowers;
* The right to protest and the role of the media during protests."

For more information, see the full concept note about the conference here.

Thursday, 24 November 2016

MHB v Hungary Judgment on Access to Information

It is my pleasure to introduce a guest post in the form of a commentary by professor Renata Uitz of Central European University. She has written a commentary on the recent case of Magyar Helsinki Bizottság v. Hungary, on which the European Court issued its judgment two weeks ago. Amongst others, it further clarifies the notion of "public watchdogs". Here is her guest commentary on this important case on access to information:


Protecting Access to Information Under Article 10: A Small Step With Major Implications

Renata Uitz

On November 8, 2016 in the judgment of Magyar Helsinki Bizottság v. Hungary, the Grand Chamber consolidated the jurisprudence of the Court on access to information under Article 10. In addition, the judgment sheds light on the interpretation of the Convention in cases where the text is silent on a particular issue. Finally, the case allows some insight into how the ECtHR may build on disagreement in a member state concerning the Court’s role in developing European human rights standards. One of these points would be reason enough to make a judgment important. All three of them in a single case may well make it matter for many years to come.

Background

The facts of the case concerned the rejection by the police of an access to information request submitted by the Magyar Helsinki Bizottság (the Hungarian Helsinki Committee) under the Hungarian act on data protection and access to information. The denial of access was later confirmed by the Supreme Court. The applicant is a much respected civil rights organization which has brought several cases of its clients via strategic litigation before Hungarian courts as well as before the European Court. This particular case, in which they eventually became the applicant themselves, they did not start as one. In fact, once the case was accepted by the Grand Chamber legal counsel for a specialized freedom of information NGO, atlatszo.hu joined forces with the Helsinki Committee’s lawyers before the ECtHR.
The Helsinki Committee participated in a European research project on transparency in the appointment of public defenders, for which they needed data on the manner of appointment of public defenders in Hungary. While several police departments complied with their request under the 1992 act on access to information, some refused, arguing that the names of public defenders were personal data which could not be disclosed in the public interest. One such police department was also the home of a large refugee camp in Hungary, so data from that department were particularly interesting for the research project on public defenders. Upon appeal the Hungarian Supreme Court ruled that a “defence counsel cannot be regarded as ‘other persons performing public duties’, since no powers or competences defined by law are vested in them.

Article 10 and Access to Information

At the time when the Helsinki Committee turned to the European Court in 2011, the existing case-law already suggested that civil society organizations – similarly to journalists – qualified as watchdogs in the context of Article 10. In a similar case, Társaság a Szabadságjogokért v. Hungary the Court had already found that the following:

"The Court has consistently recognised that the public has a right to receive information of general interest. Its case-law in this field has been developed in relation to press freedom which serves to impart information and ideas on such matters. In this connection, the most careful scrutiny on the part of the Court is called for when the measures taken by the national authority are capable of discouraging the participation of the press, one of society’s “watchdogs”, in the public debate on matters of legitimate public concern, even measures which merely make access to information more cumbersome." (para. 26, internal references omitted)

Compared to this and similar cases, the complaint of the Helsinki Committee did not raise a novel issue, although the section judgment in Társaság v Hungary may be read as a departure from Leander v. Sweden where the Court found that “Article 10 does not, in circumstances such as those of the present case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual” (para 74). This potential inconsistency in Article 10 jurisprudence has been pointed out by some commentators.

The underlying difficulty of the protection of access to information under Article 10 is easy to see. Article 10 protects the right to “to receive and impart information.” In contrast, Article 19 of the ICCPR and Article 13 of the American Convention protect the right “to seek, receive and impart information” (emphasis added). The drafting history of Article 10 reveals that the express reference to the right “to seek” information was removed from the text of Article 10 upon the request of the United Kingdom. The United Kingdom intervened before the Grand Chamber to emphasize this point (paras. 99-103), stressing that if the Grand Chamber were to recognize a right to access to information, it would “far exceed the legitimate interpretation of the Convention and would amount to judicial legislation” (para. 103).

More importantly, UK courts had serious reservations about the development of Article 10 case-law along the lines of Társaság v. Hungary. In 2014, in Kennedy v. Charity Commission, the UK Supreme Court in several opinions expressed strong reservations about the state of Strasbourg case-law on freedom of information under Article 10 and called on the sections of the Court to relinquish jurisdiction in similar cases (per Lord Mance):

"The Strasbourg jurisprudence is neither clear nor easy to reconcile.In the present case, Strasbourg has spoken on a number of occasions to apparently different effects. Further, a number of these occasions are Grand Chamber decisions, which do contain apparently clear-cut statements of principle. … [I]t may be unfortunate that the relevant sections did not prefer to release the matter before them to a Grand Chamber. It is not helpful for national courts seeking to take into account the jurisprudence of the European Court of Human Rights to have different section decisions pointing in directions inconsistent with Grand Chamber authority without clear explanation." (para.59)

Thus, is it safe to assume that in the case of Magyar Helsinki Bizottság v. Hungary, the Section  of the European Court to which the case was fist assigned, relinquished jurisdiction to the Grand Chamber not so much to the significance of the underlying case, but in response to the suggestion of the UK Supreme Court.
  
The Grand Chamber on the Interpretation of the Convention

The Grand Chamber defined the issues very narrowly in the case, asking whether “Article 10 of the Convention can be interpreted as guaranteeing the applicant NGO a right of access to information held by public authorities” (para. 71), or slightly more generally, whether “whether and to what extent [Article 10] embodies a right of access to State-held information” (para. 117).

The Grand Chamber acknowledged at the outset that Article 10 does not mention the right to seek information, as many similar human rights instruments do. The following general considerations guided the interpretation of Article 10 and are worth quoting at length (internal references omitted):

"119. …  in accordance with the Vienna Convention, the Court is required to ascertain the ordinary meaning to be given to the words in their context and in the light of the object and purpose of the provision from which they are drawn.
120. … the context of the provision is a treaty for the effective protection of individual human rights and that the Convention must also be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions.
123. Account must also be taken of any relevant rules and principles of international law applicable in relations between the Contracting Parties; the Convention cannot be interpreted in a vacuum and should so far as possible be interpreted in harmony with other rules of international law of which it forms part.
124. … The consensus emerging from specialised international instruments and from the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases.
125. … It can be seen from the case-law that the travaux préparatoires are not delimiting for the question whether a right may be considered to fall within the scope of an Article of the Convention if the existence of such a right was supported by the growing measure of common ground that had emerged in the given area."

The Grand Chamber was particularly mindful of the concern that its own case-law is inconsistent on access to information under Article 10:

"133. The fact that the Court has not previously articulated in its case-law the relationship between the Leander principles and the more recent developments described above does not mean that they are contradictory or inconsistent. The dictum that “the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him” was, it appears, based on what may be considered a literal reading of Article 10. It was repeated in the plenary and Grand Chamber rulings in Guerra and Others, Gaskin and Roche (and also in Gillberg). However, whilst holding that Article 10 did not, in circumstances such as those at issue in Guerra and Others, Gaskin and Roche, confer on the individual a right of access to the information in question or embody an obligation on the Government to impart such information, the Court did not, however, exclude the existence of such a right for the individual or a corresponding obligation on the Government in other types of circumstance. The above-mentioned recent case-law (including Gillberg) may be viewed as illustrating the types of circumstance in which the Court has been prepared to recognise an individual right of access to State-held information." (emphasis added)

After a careful examination of international and foreign material, and with special attention to the judgment of the IACtHR in Claude Reyes v. Chile (para. 146) from 2006, the Grand Chamber was ready to conclude that “in response to the evolving convergence as to the standards of human rights protection to be achieved” (para. 154) it was time to clarify the scope of Article 10 for access to information.
  
The Scope of Access to Information under Article 10:

The scope of protection afforded to access to information under Article 10 is carefully defined by the Court. First, the Court insists on a case-by-case assessment of factors (such as the notion of public interest and the qualities of the applicant) in order to permit a careful judicial monitoring of the scope of the right. Although the uncompromising recognition of assess to information under Article 10 is a major advance in European human rights jurisprudence, the narrowness of the Court’s holding and the proximity of the relevant tests to the facts of each case should be borne in mind when celebrating this advance. These limitations follow from the fact that access to information is recognized as a precondition to freedom of expression, and is not a self-standing right under the Convention. The cautious approach of the Court is also explained by the concurring opinion of Judges Nussberger and Keller (esp. para. 2) and the dissenting opinion of Judge Spano who raised privacy concerns against the expansion of Article 10. Second, the Court was careful about the burden that providing access to information may impose on member states. As such the judgment of the Grand Chamber is a meticulously consolidated reading of the existing case-law without major surprises. This was also emphasized by the concurring opinion of Judges Sicilianos and Raimondi (para. 27).

The basic premise of the Court's position is that access to information is instrumental for the “practical and effective” protection of freedom of expression under Article 10: “the right of access to information may under no circumstances fall within the ambit of Article 10 of the Convention would lead to situations where the freedom to “receive and impart” information is impaired in such a manner and to such a degree that it would strike at the very substance of freedom of expression" (para. 155). The Court delineated the scope of protection by tying it to a notion of public interest in the public discourse of matters of public concern. In doing so the Court emphasized that the need to disclose state-held information “may exist where, inter alia, disclosure provides transparency on the manner of conduct of public affairs and on matters of interest for society as a whole and thereby allows participation in public governance by the public at large.” (para. 161). The public interest test is worth recalling in full:

"162. The Court has emphasised that the definition of what might constitute a subject of public interest will depend on the circumstances of each case. The public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about. The public interest cannot be reduced to the public’s thirst for information about the private life of others, or to an audience’s wish for sensationalism or even voyeurism. In order to ascertain whether a publication relates to a subject of general importance, it is necessary to assess the publication as a whole, having regard to the context in which it appears.
163. In this connection, the privileged position accorded by the Court in its case-law to political speech and debate on questions of public interest is relevant. The rationale for allowing little scope under Article 10 § 2 of the Convention for restrictions on such expressions."

As is apparent from the formulation of the test, the Grand Chamber was mindful of the potential encroachment access to state-held information in the name of the public interest may impose on private life. This concern may well explain why the Court insisted on a context-specific, case-by-case determination of what qualifies as information in the public interest for the purposes of Article 10.

Note that the public interest test is further qualified by the nature of the applicant being a well-respected civil society organization. The Court used this opportunity to further explain what it means by watchdog organizations in the free speech context, emphasizing the instrumental nature of access to information for a robust public discourse and govern accountability in a constitutional democracy:

"167. The manner in which public watchdogs carry out their activities may have a significant impact on the proper functioning of a democratic society. It is in the interest of democratic society to enable the press to exercise its vital role of “public watchdog” in imparting information on matters of public concern, just as it is to enable NGOs scrutinising the State to do the same thing. Given that accurate information is a tool of their trade, it will often be necessary for persons and organisations exercising watchdog functions to gain access to information in order to perform their role of reporting on matters of public interest. Obstacles created in order to hinder access to information may result in those working in the media or related fields no longer being able to assume their “watchdog” role effectively, and their ability to provide accurate and reliable information may be adversely affected.
168. Thus, the Court considers that an important consideration is whether the person seeking access to the information in question does so with a view to informing the public in the capacity of a public “watchdog”. This does not mean, however, that a right of access to information ought to apply exclusively to NGOs and the press. It reiterates that a high level of protection also extends to academic researchers and authors of literature on matters of public concern. …. [t]he function of bloggers and popular users of the social media may be also assimilated to that of “public watchdogs” in so far as the protection afforded by Article 10 is concerned."

This understanding of the role of watchdogs in the public discourse certainly applies under Article 10 outside the immediate context of access to information.

As for the burden imposed by access to information on member states under Article 10, the Court emphasized – in line with its previous case-law – that the government does not have an obligation to collect data or to actively impart information. The Court noted that “the fact that the information requested is ready and available ought to constitute an important criterion in the overall assessment” (para. 170).
            In applying these general principles to the case at hand, the Court found that the Hungarian authorities violated the Convention when they failed to assess the “potential public-interest character of the information sought” (para. 176). This inquiry into the “public-interest character” of the information sought follows from Article 10, “irrespective of whether public defenders could be qualified as “other persons performing public duties” under the relevant national law” (para. 177). In the limitation analysis. the Court demonstrated the application of this standard by pointing out that “the request for these names, although they constituted personal data, related predominantly to the conduct of professional activities in the context of public proceedings. In this sense, public defenders’ professional activities cannot be considered to be a private matter. Moreover, the information sought did not relate to the public defenders’ actions or decisions in connection with the carrying out of their tasks as legal representatives or consultations with their clients” (para. 194). Regarding the privacy concerns of public defenders, the Court noted that their names could easily be learned from other sources available to the public such as schedules of court hearings (para. 195).  
  
Conclusion

The significance of the judgment of the Grand Chamber in Magyar Helsinki Bizottsag v. Hungary cannot be underestimated. It consolidates for the first time the principles and premises of European human rights jurisprudence on access to information under Article 10. The Court tied access to information to freedom of expression and its role in providing for a robust public discourse in matters of public interest in a democracy. The scope of access to information is narrowly defined: it applies to state-held information, it ensures access in the public interest and privileges recipients who seek access to information in order to contribute to the public discourse in a watchdog capacity. The audience’s potential “wish for sensationalism or even voyeurism” is not reason to provide access to information under the Convention.

Second, the Grand Chamber provided important insights into the principles of interpreting the Convention where the text is silent. The starting point in making the protection of the Convention rights “practical and effective” remains the Vienna Convention together with the Court’s continuing concern to account for the evolution of the protection of human rights under similar regional and international instruments.

Third, the judgment has great political significance in the ongoing judicial dialogue between national courts and the European Court of Human Rights. While it may have been time for the Grand Chamber to consolidate its jurisprudence under Article 10, the UK Supreme Court’s call for action in this respect might well have served as a source of inspiration to take up a relevant case from another member state at the right time. The willingness of the Court to keep a watchful eye on developments in national courts should encourage human rights defenders not only to coordinate across borders in strategic cases but also to continue to draw attention to their victories and failures (!) in the European public discourse on human rights. Hopefully, next time Europeans will not have to wait ten years before the European minimum standard unquestionably reaches the level of protection afforded in the UN system and the Inter-American regime.