European Human Rights Court Rules Against Serbia

26 June 2013

The European Court on Human Rights  has supported a right to access information held by public bodies, holding that Serbia violated the human rights of a group seeking information.

With language grounded in international human rights standards, the European Court of Human Rights June 25 backed the arguments of a non-governmental organization based in Belgrade, Serbia, the Youth Initiative for Human Rights. On Nov. 29, 2006, the watchdog group asked the  intelligence agency of Serbia to provide information on how many people had been subjected to electronic surveillance in 2005.

The government denied access and continued to deny access notwithstanding a final and binding decision of the information commissioner that the information should be made public.

When the resistance continued,  the group  appealed to the Court of Human Rights under Articles 6 and 10 of the European Convention on Human Rights.

The court relied on past precedents while fending off Serbian objections. One key background paragraph of the ruling states:

20.  With regard to the second and third objections, the Court recalls that the notion of “freedom to receive information” embraces a right of access to information (see Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 35, 14 April 2009). The Court has also held that when a non-governmental organisation is involved in matters of public interest, such as the present applicant, it is exercising a role as a public watchdog of similar importance to that of the press (Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 103, 22 April 2013). The applicant’s activities thus warrant similar Convention protection to that afforded to the press (see Társaság a Szabadságjogokért, cited above, § 27). Accordingly, the Government’s remaining objections must also be rejected.

The Serbian government, besides claiming that the information does not exist, a claim the court called “unpersuasive,” also argued that it had no duty to release information on request.

The court ruling summarizes the Serbian contention:

They added that freedom to receive information merely prohibited a State from restricting a person from receiving information that others wished or might be willing to impart to him; that freedom could not be construed as imposing on a State, in the circumstances of the present case, positive obligations to collect and disseminate information of its own motion (see Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998?I).

Rejecting this, the court wrote, “The Court concludes that the obstinate reluctance of the intelligence agency of Serbia to comply with the order of the Information Commissioner was in defiance of domestic law and tantamount to arbitrariness.” It concludes that Serbia violated Article 10 of the Convention.

A concurring opinion by two judges, András Sajó and Nebojša Vu?ini?, stresses “the general need to interpret Article 10 in conformity with developments in international law regarding freedom of information, which entails access to information held by public bodies. We refer, in particular, to Human Rights Committee, General Comment No. 34 (document CCPR/C/GC/34 of 12 September 2011, § 18).”

The two judges highlighted several other implications of the judgment including the “rapidly disappearing” distinction between journalists and other members of the public.

Article 10 says:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

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