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Kenedi v. Hungary

last modified Aug 21, 2012 12:51 PM

Case number:
31475/05
Country:
Hungary
Date of decision:
26 May 2009
Court / Arbiter:
European Court of Human Rights ( International / ECHR )


Decision:

The Hungarian ministry’s reluctance to comply with the courts’ rulings and allow unrestricted access to documents sought for historical research purposes constitutes a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.


Keywords:
Freedom of expression (including RTI as element of or integral to)
International law
National security (including defense, intelligence, state security, state secrets, secrecy laws)

Case details:

Facts

The applicant, for the purpose of historical research, requested the Ministry of Interior (the ministry) to grant access to certain documents related to the functioning of the Hungarian State Security Service in the 1960s (para. 7).  His request was denied on the ground that the documents were classified as state secrets until 2048 (para. 8). After the applicant obtained a court judgment granting him access to the documents (para. 10), the ministry disputed the extent of access. Firstly, the ministry made the access conditional upon signing a confidentiality undertaking (para. 12) and secondly, it restricted the applicant from publishing the information to the extent that “state secrets” were concerned (para. 16). However, in line with the original decision, the domestic courts repeatedly found for the applicant in the ensuing proceedings for enforcement and fined the ministry (paras. 13-14, 17, 19).  Despite that, the applicant did not obtain unrestricted access to one of the documents (para. 25).

Decision

The Court reiterated its position expressed earlier in Társaság a Szabadságjogokért v. Hungary that “access to original documentary sources for legitimate historical research was an essential element of the exercise of the applicant’s right to freedom of expression” (para. 43). A failure to allow the applicant access to the requested documents constituted an interference with his Article 10 (freedom of expression) rights (para. 43).

According to a three-part test set forth in Article 10(2) such interference (i) should be “prescribed by law”, (ii) pursue one or more of the legitimate aims, and (iii) be necessary in a democratic society (para. 43). Applying the test to the current facts, the Court found that “the obstinate reluctance of the [ministry] to comply with the execution orders was in defiance of domestic law and tantamount to arbitrariness” (para. 45). The Court concluded that the actions of the ministry failed to satisfy the first prong of the test – “prescribed by law” – and unanimously found a violation of Article 10 (para. 45).

Resources:

Judgment of the Court.