ECHR Ruling On Access To Judgments. Should We Be Afraid?
Restricted access to copies of court rulings does not interfere with freedom of information under the Art. 10 of the European Convention of Human Rights. Does such limitation pose a risk for FOI and open data activists?
Curiosity
The case of Sioutis v. Greece is yet another stage of the dispute in the area of understanding the right to information as an autonomous human right. Unfortunately, the Court has stated again that freedom of information is strictly connected with freedom of expression and can not be treated in separation from the latter. It is difficult to foresee the consequences but we can expect that this might make it more difficult to access the content of judgements.
Greek citizen, Dimitris Sioutis got interested in a case described in the online media which involved a Greek MP and a well-known businessman. An intrigued citizen wanted to gain access to the copy of the judgement. In accordance with the relevant Greek law (Article 22 § 2 of the Code for the Organisation of Courts), third parties can obtain a copy of the judgment only if they can prove that they have legitimate interest which is left to the discretion of a competent judge. Although Mr Sioutis was definitely interested in obtaining the copy, he was not considered a person who could have proven that such legitimate interest existed.
He filed a complaint to the European Court of Human Rights in Strasbourg, alleging violation of art. 10 of the European Convention on Human Rights.
“Everyone has the right to freedom of expression. This right shall include freedom (…) to receive and impart information and ideas without interference by public authority and regardless of frontiers. (…)”
He referred to the fact that there is always public interest in accessing knowledge about acts of the public authorities, including the courts. Suspecting possible argumentation of the Court, he referred to the Steel and Morris v. United Kingdom case which showed that even an individual could have major impact on the public debate. Even if we assume that the right to information is strictly connected with the need of expressing it further, the fact that he is not a journalist or a CSO representative, does not prejudge that he can not exercise his right to know.
The Greek Government, referring to the case Társaság a Szabadságjogokért v. Hungary, stressed that only journalists or non-governmental organizations can effectively influence the public opinion and only in their case, restricting access to requested documents can breach the Art. 10 of the Convention. An additional argument was advanced that the businessman and the MP, although public figures, met in the court as private persons and they are protected by the right to privacy.
Testing the right
The court referred to Tarsasag and the Magyar Helsinki Bizottság v. Hungary case and pointed out that to judge whether judges can state that the Art. 10 of the Convention was breached they have to implement the following criteria:
a) the purpose of the information request;
b) the nature of the information sought;
c) the role of the applicant and
d) whether the information was ready and available.
The Court concluded that the will to receive the information is not sufficient. Mr Sioutis is neither a journalist nor a watchdog, therefore he has limited possibilities to influence the public opinion or act in the public interest. Also, the nature of the information is not to be considered as important for the public. Although the Greek court’s verdict referred to well-known individuals, it had no connection with them performing public functions. Therefore, also in this context, there is no overriding public interest. The Court also noted that since a citizen had learned about the text of judgment from the court registry, the court has complied with the rules of openness of the court proceedings and it is not obliged to deliver the copy of documents. But what if one wants to share information with others?
Influencing transparency
It should be remembered that the Court referred to the restrictive, in this case, national law which significantly limits access to copies of judgements by third parties. Nevertheless, the consequences of the ECHR ruling can decrease the level of judicial transparency. Firstly, there is an argument, especially destructive for open data and FOI activists, that lack of access to the source document is not a breach of the Art. 10 of the Convention. Secondly, the Court once again suggests that protection of the right to know under the Art. 10 of the Convention is given only to individuals and organizations that have a wide range of opportunities to influence the public debate, which constitutes that some are more equal than others when it comes to human rights protection. The inherent human dignity is not enough and they might be asked about the purpose of requesting information and the way it will be used. Who will objectively judge whether specific open data and FOI activists “has a special role in enhancing the public’s access to news and facilitating the dissemination of information”?
