TrustHLT/LaCour huggingface dataset:
Iulia Antoanella Motoc (Judge): Donc, on connaît que la première règle d'interprétation du droit international qui existe dans la Convention de Vienne, c'est la règle qui est prévue par l'article 31, normalement l'article 31, paragraphe 3, et qui fait référence aux autres instruments internationaux qui ont été déjà cités et à leur jurisprudence.
Iulia Antoanella Motoc (Judge): Et on connaît aussi que l'interprétation des droits de l'homme, des traités des droits de l'homme, des traités multilatéraux des droits de l'homme, est différente par rapport aux traités qui ne sont pas, qui ne concernent pas les droits de l'homme, vu que dans les traités des droits de l'homme, la question de réciprocité ne s'applique pas.
Iulia Antoanella Motoc (Judge): Donc, normalement, on dit dans la doctrine que dans les traités des droits de l'homme, on n'a pas le même type d'interprétation vu le fait que les intentions des partis, et ici je fais référence aux travaux préparatoires dont le gouvernement britannique a fait référence, ne jouent pas le même rôle comme ils jouent dans les traités bilatéraux ou les traités multilatéraux qui ne traitent pas les droits de l'homme.
Iulia Antoanella Motoc (Judge): Donc voilà une question qui est reconnue dans la doctrine et qui fait la différence entre les deux types d'interprétation dans les traités multilatéraux qui traitent les droits de l'homme et dans les traités multilatéraux qui ne traitent pas les droits de l'homme.
Iulia Antoanella Motoc (Judge): Et en relation avec cette question, je voulais poser une question plus concrète au gouvernement hongrois parce que dans le paragraphe 11 de votre mémoire, le gouvernement hongrois se réfère au fait que dans l'affaire Taraschuk, ils n'étaient pas capables de contester l'applicabilité de l'article 10 vu qu'ils n'étaient pas partis dans l'affaire Mackey contre la République tchèque.
Iulia Antoanella Motoc (Judge): Mais comme on reconnaît dans la doctrine et comme le Lord Brown l'avait expliqué dans l'affaire Sugar, on regarde ces trois affaires, ça veut dire l'affaire Mackey, l'affaire Taraschuk et l'affaire Kennedy, comme une trilogie de notre cours, ça veut dire trois affaires qui reconnaissent d'une manière progressive ce type de droit.
Iulia Antoanella Motoc (Judge): Et ma question au gouvernement hongrois est la suivante.
Iulia Antoanella Motoc (Judge): Est-ce qu'au moment où l'affaire Taraschuk était devant le gouvernement hongrois, pourquoi est l'affaire Mackey précédente à l'affaire Taraschuk de l'année 2006, pourquoi est-ce qu'en ce moment-là, le gouvernement hongrois n'a pas contesté comme il le fait aujourd'hui l'applicabilité de l'article 10 à ce genre de question?
Iulia Antoanella Motoc (Judge): La deuxième question que je pose au gouvernement hongrois et qui est plus concrète et qui vise aussi l'article 31, le paragraphe 3, se réfère au droit de l'Union européenne.
Iulia Antoanella Motoc (Judge): Et le gouvernement hongrois donne plusieurs exemples du droit de l'Union européenne concernant la protection des données, mais ils ne font pas référence, par exemple, à une affaire qui est très importante pour le droit de l'Union européenne, notamment pour l'article 8 de la charte des droits fondamentaux, ça veut dire « austerite contre le Randfund » où on sait qu'il y avait un accès concernant les données qui étaient plus privées concernant les salaires vu que le requérant demandait un contrôle de dépense publique.
Iulia Antoanella Motoc (Judge): Donc, quelle est la position du gouvernement hongrois par rapport à cette jurisprudence de la Cour de Luxembourg et par rapport au fait que la Hongrie est membre de l'Union européenne et qu'elle est soumise aux dispositions et aux sources du droit européen?
Guido Raimondi (JudgeP): Merci beaucoup Madame la juge Motoc. Judge Kūris please.
Egidijus Kūris (Judge): My question goes, first of all, to the representatives of the government, but of course, the applicants can also comment on it.
Egidijus Kūris (Judge): And the question relates to — it's a factual question.
Egidijus Kūris (Judge): It relates to a broader context of the applicant situation.
Egidijus Kūris (Judge): Most of the police departments provided the information to the applicant, which the applicant requested.
Egidijus Kūris (Judge): However, a couple of departments refused to provide it, and that's why we have the case here.
Egidijus Kūris (Judge): And the basis for that, according to the interpretation, was that the information contained private data which cannot be disclosed under the domestic law.
Egidijus Kūris (Judge): That's what the government defended, this position.
Egidijus Kūris (Judge): I have a question which then splits into probably four questions, and I will now tell all of them in certain consequence.
Egidijus Kūris (Judge): First of all, are there any provisions, and if so, what provisions in the Hungarian domestic law regarding liability for disclosure by public officials of information which is not to — which cannot be disclosed under the domestic law, which is protected, such information as private data?
Egidijus Kūris (Judge): Second, if the answer to this first question is in the positive, that such provisions exist, and I believe that they must exist, then have these provisions been applied to any public official, any police department that disclosed the information which was requested by the applicant?
Egidijus Kūris (Judge): My third question is, if the answer to this question is no, if it is in the negative, then why they have not been applied, if they have not been applied?
Egidijus Kūris (Judge): And the fourth question, or the fourth part of this big question is, if they have not been applied because persons concerned have not initiated this application, still, have there been any ex post facto — I mean ex post facto, that is, after the final judgment of the Supreme Court — instructions by the executive or by whichever authority to the police departments that they should not disclose such information in the future if such information is requested?
Guido Raimondi (JudgeP): Thank you very much, Judge Kūris.
Guido Raimondi (JudgeP): If there are no more questions, now the court will rise for, I would say, roughly a quarter of an hour.
Guido Raimondi (JudgeP): We can resume at 10 to 11, following which the parties will return for a second round of short pleadings to respond to the submissions in the first round and to the judges' questions.
Guido Raimondi (JudgeP): So the hearing is now resumed and I call Mr. Tallódi who has 10 minutes, please.
GR1 (Government): Thank you very much for the possibility of answer.
GR1 (Government): First of all, I would like to react to the question of Mr. Sicilianos and Judge Motok
GR1 (Government): concerning the Vienna Convention. The right to seek information is indeed recognized by
GR1 (Government): international treaties ratified by Hungary, and it is accordingly ensured by the Hungarian Fundamental Law as well. The only relevance of the text of Article 10 in this case is
GR1 (Government): that it sets out the limits of the jurisdiction of this court. As it was pointed out in the
GR1 (Government): in my former speech, when the new convention was adopted by the Council of Europe concerning the European, the access to official documents, still didn't intend to subject this right to the jurisdiction of the court, and opted for the adoption of a separate treaty with distinct supervisory mechanism, instead of adopting an additional protocol to the European Convention on Human Rights. So the Hungarian government absolutely agrees with the approach
GR1 (Government): of the question, and it is the main aspect of our answer.
GR1 (Government): I, Mr. Motok, also asked the possibility of the dispute concerning the case of
GR1 (Government): Társaságvál, Szabadságjogok versus Hungary, and why the Hungarian state didn't refer to it.
GR1 (Government): As pointed out, it was based on the considerations of the pure domestic law, without taking into account the possible consequences at the European level of this decision.
GR1 (Government): The question of EU law, concerning the question of EU law, we would like to add that the public should endure more interference than private professionals operating on the private market, like mere legal aid defense councils in Hungary, who were taking part in the process in this case.
GR1 (Government): Concerning the question of Mr. Kúris, I would like to add, and I would like to answer, that
GR1 (Government): there is a possibility in the Hungarian law to file a lawsuit against public authorities violating personal or personality rights, including the right for data protection.
GR1 (Government): In this context, there have been no lawsuits filed, since the actual names of the legal aid defense councils were not published by the applicant, and therefore the affected parties didn't become aware of the violation of their rights.
GR1 (Government): And I have to add that the government has no information on any ex officio sanction against police departments, which unlawfully disclosed personal data in this context.
GR1 (Government): These were my answers, thank you very much.
Guido Raimondi (JudgeP): And now I call Dr. Sepsi, please, you have the floor.
AP2 (Applicant): First to answer the two questions of Judge Spano.
AP2 (Applicant): The first is about the merits and the consequences of applying access to information in this case, and the special problems regarding the data which are clearly under the obligation not to disclose under national legislation.
AP2 (Applicant): I would stress out that the aim of the applicant was not to force or to advocate for creation of a new right in this case.
AP2 (Applicant): We would rely on existing jurisprudence which actually contains the merits and the provisions which can be used in these cases.
AP2 (Applicant): Of course, if the issue would have been a creation for a jurisdiction on a standalone right on the access to official document, then the court would come to the same problem which other human rights protection organs, for example, national constitution courts, faced when they had to create their own practice on this issue.
AP2 (Applicant): But we think that in this case, the court can clearly rely on its existing practice on the protection of Article 10.
AP2 (Applicant): As to the second question, seeking information and its relation to other documents of international human rights protection, I have to admit, of course, that we did not find any other example where the seeking of documents was not incorporated in these international documents.
AP2 (Applicant): So both in the case of the Inter-American practice and in the case of the Human Rights Committee practice, their texts are actually containing the reference to seeking.
AP2 (Applicant): That's true, but I have to add, partly in connection with what has been said by the Hungarian government earlier, that in this situation, we cannot say that by the time those documents were drafted, there was actually a concept for the access to documents or the concept of freedom of information.
AP2 (Applicant): So I have to say again that a lot had been changed in the past decades in these terms.
AP2 (Applicant): And one short answer to the question of Judge Kudis is that we also did not encounter any kind of consequences for disclosing those personal data in the case of the departments who actually answered the request of freedom of information.
Guido Raimondi (JudgeP): Thank you very much Dr. Sepsi.
Guido Raimondi (JudgeP): Now, since the intervening government received a question by Judge Spano, I would give the opportunity to Mr. Coppel to reply for five minutes, please.
TP1 (ThirdParty): In answer to the question of Judge Spano, we submit it in line with our opening observations that the consequences of a recognition of a convention right to freedom of information would be very serious.
TP1 (ThirdParty): I'll give you three examples of that.
TP1 (ThirdParty): First of all, the complexity and detail of the freedom of information right to which I referred earlier would have to be worked out by the court, potentially as autonomous concepts of convention law.
TP1 (ThirdParty): So who is entitled to ask for information, under what conditions, which persons and bodies are required to disclose information.
TP1 (ThirdParty): That's a very contentious issue in the UK, has led to a number of cases and was recently in the Supreme Court.
TP1 (ThirdParty): What exemptions and exceptions can be relied upon by public bodies, which exemptions can be absolute exemptions, so long as the information falls within the subject matter of the exemption, it need not be disclosed.
TP1 (ThirdParty): But some exemptions will not be absolute, some will have to depend upon the facts of the individual case, so which is it to be.
TP1 (ThirdParty): And the mechanisms for the enforcement of freedom of information rights is another matter.
TP1 (ThirdParty): The UK Freedom of Information Act, which is by no means the most complex around, runs to several hundred sections and paragraphs dealing with these issues.
TP1 (ThirdParty): Second example of implications, the logic of the applicant's position is that each of these facets of a domestic right to freedom of information, if it exists, would be subject to some sort of proportionality reasoning and analysis by the court.
TP1 (ThirdParty): That proportionality analysis would overlay complex domestic law and require difficult and sensitive decisions to be taken by the court as to the drawing of lines for the freedom of information right, and would require those decisions to be retaken in effect according to the different proportionality standards.
TP1 (ThirdParty): Many of these decisions relate to matters such as national security information, which are, and ought to remain, squarely within the jurisdiction and discretion of contracting states.
TP1 (ThirdParty): And this can't, we submit, all be left to be worked out according to the margin of appreciation, which as we know can be quite narrow in Article 10 cases.
TP1 (ThirdParty): Third example of implications is the procedure which is necessary in a freedom of information case, and would be necessary in this course.
TP1 (ThirdParty): And I tell you from my own personal experience of freedom of information cases in the UK, where the question is whether a public body was justified, was entitled to withhold information, the court or tribunal which is examining that question must of course look at the information.
TP1 (ThirdParty): It must consider the information in question for itself.
TP1 (ThirdParty): And the complicating factor in the procedure of the court is that the applicant cannot be allowed to look at the information and to make those arguments on the basis of the information, because otherwise the litigation would be determined.
TP1 (ThirdParty): So the UK tribunals have developed procedures for closed, open and closed documentary material, open and closed sessions of the court, so there are sessions where the applicant can be present and where they can't, special arrangements for documents.
TP1 (ThirdParty): Now it's all very difficult.
TP1 (ThirdParty): This court has no such procedures.
TP1 (ThirdParty): It could develop some, indeed it may be required to develop some, if you go down the road of recognising a freedom of information right, but we would counsel very strongly against that.
TP1 (ThirdParty): I think I was also offered the opportunity to comment on the question relating to the Vienna Convention, and I would do so very briefly, if I may.
TP1 (ThirdParty): We say that Article 31, subparagraph 3, subparagraph C strongly supports the interpretation of Article 10 that we put forward.
TP1 (ThirdParty): Yes, one should take account of relevant rules of international law when interpreting the European Convention, but the Council of Europe Convention on the Right of Access to Official Documents is not a relevant rule of international law.
TP1 (ThirdParty): It is not in force, it may never come into force.
TP1 (ThirdParty): The EU Charter of Fundamental Rights does not confer a right of access to information held by the state, by the member states.
TP1 (ThirdParty): It could have done, but it only confers a limited right of access to information held by the EU institutions.
TP1 (ThirdParty): It's quite different.
TP1 (ThirdParty): It also, of course, contains a right of access to personal data, which was the right at issue in the Oesterreiche-Rundfunk case, but that, of course, is dealt with under Article 8 ECHR, not Article 10.
TP1 (ThirdParty): And finally, Article 19 of the International Covenant on Civil and Political Rights is a relevant rule of international law, but it demonstrates the limitations of Article 10 rather than requiring Article 10 to be interpreted more broadly.
TP1 (ThirdParty): It has an express right to seek information in contrast to Article 10, and the effect of Article 31 of the Vienna Convention is not to require the European Convention on Human Rights to be interpreted beyond what the framers stated in Article 10, so as to accord with other treaties which have plainly gone further.
TP1 (ThirdParty): On the contrary, those other treaties operate as a limiting factor on the interpretation of Article 10.
Guido Raimondi (JudgeP): I thank the parties for their interventions and their replies to the questions of the court.
Guido Raimondi (JudgeP): The parties will be informed of the date of delivery, and I declare the hearing closed.
Dean Spielmann (JudgeP): I declare open the public hearing on the admissibility and merits in the case of Volkov against Russia, against Ukraine, sorry.
Dean Spielmann (JudgeP): The case was lodged on the 13th of March, 2011, with the court under Article 34 of the convention by Ukrainian national, Mr. Oleksandr Fedorovych Volkov.
Dean Spielmann (JudgeP): The application was allocated to the fifth section of the court pursuant to Rule 52, paragraph 1 of the rules of the court.
Dean Spielmann (JudgeP): The application was communicated to the government on the 18th of October, 2011.
Dean Spielmann (JudgeP): The defending government are represented by their agent, Mr. Kulchytskyy, assisted by Mr. Nasad, Mr.
Dean Spielmann (JudgeP): Bem, Mr. Demchenko, Ms. Sukhova, advisors.
Dean Spielmann (JudgeP): The applicant is represented by Mr. Leach, lawyer,
Dean Spielmann (JudgeP): assisted by Ms. Gordon and Ms. Popova, counselors.
Dean Spielmann (JudgeP): Mr. Kulchytskyy for the government will speak first,
Dean Spielmann (JudgeP): and then Mr. Leach for the applicant.
Dean Spielmann (JudgeP): I call Mr. Kulchytskyy.
GR1 (Government): Honorable Court, the government have honored to submit their answers to additional questions put forward on an oral hearing in the case Volkov v. Ukraine.
GR1 (Government): As to the questions of the court concerning independence and impartiality of the High Council of Justice, the government know that in their observation they submitted their entire list of legislative safeguards ensuring objective independence and impartiality of members of the Council.
GR1 (Government): The applicant in his turn has failed to submit any concrete facts of external influence on the members of the Council.
GR1 (Government): In this connection, it's worth mentioning that the burden of proof as to alleged facts rests with the applicant and not with the government.
GR1 (Government): The government note that the applicant complained about alleged subjective personal prejudice of three members of the Council, namely, Mr. Skivalov, Kolesnichenko, and Kuzmin.
GR1 (Government): As to applicant allegation concerning Mr. Skivalov, the government note that in 2007,
GR1 (Government): the applicant and several other judges challenged before Pechersk District Court of Kiev the Parliament's decision on a temporary procedure on election of judges to administrative position.
GR1 (Government): As a result, Pechersk District Court suspended the effect of the Parliament's decision.
GR1 (Government): Subsequently, on 14 June 2007, Mr. Skivalov made an oral statement for mass media in which
GR1 (Government): he supposed that the judges who had been involved in submitting the mentioned claim had to be dismissed from the office for the branch of oath.
GR1 (Government): The applicant in his application refers to the aforementioned statements as a proof of Mr. Skivalov's partiality in the course of subsequent proceedings of dismissal of the
GR1 (Government): applicant.
GR1 (Government): The aforementioned statement of Mr. Skivalov was made more than six months prior to the
GR1 (Government): start of events in the present case.
GR1 (Government): Due to this, government consider that there was no casual relationship between the statement of Mr. Skivalov and the dismissal proceeding against the applicant.
GR1 (Government): As to Mr. Kolesnichenko and Kuzmin, the government called the Court's attention to the fact that
GR1 (Government): the applicant's complaint about their partiality were only attributable to the applicant's disagreement with the findings made by the mentioned persons in the Court of Internal Inquiry into the applicant's activity.
GR1 (Government): In the government's position, a mad disagreement with the findings of the above inquiries cannot serve as evidence of prejudice of the mentioned person.
GR1 (Government): The applicant further asserts that Mr. Kuzmin has initiated proceedings as to the applicant's
GR1 (Government): dismissal on his own motion.
GR1 (Government): The government draws the Court's attention to the fact that Mr. Kuzmin, as a member of
GR1 (Government): the Council, on behalf of the Chair of the Council, conducted an examination of the facts stated in the request of Ms. Polly.
GR1 (Government): Upon the result of this examination, Mr. Kuzmin lodged with the Council a request on dismissal
GR1 (Government): of the applicant.
GR1 (Government): The government would like to answer the next question as to whether the consideration of the applicant's case by the Parliament was in conformity with the principle of separation of powers.
GR1 (Government): According to the principle of separation of state powers in Ukraine, legislative, executive, and judicial authorities exercise the powers within the limit established by the Constitution of Ukraine and in compliance with the laws of Ukraine.
GR1 (Government): Furthermore, Parliament is empowered to dismiss judges elected for an indefinite term from office under Article 126 of the Constitution.
GR1 (Government): On the grounds envisaged for a branch of law, the powers to elect and dismiss judges are exercised by the Parliament through adopting a relevant resolution.
GR1 (Government): Further, in answering the Court's question as to the influence by the members of the Judiciary Committee on the impartiality of the decision-making process, the government accepts that there was indeed an overlap between the composition of the Committee and the Council.
GR1 (Government): Thus, three members of the Council were at the same time members of the Committee.
GR1 (Government): At the same time, the government notes that the Committee is a collegial body.
GR1 (Government): Decisions of the Committee are taken by simple majority vote, and the Committee itself acts within the limits of its competence, ensuring them exercised by the Parliament of its constitutional powers.
GR1 (Government): The Committee is not empowered to interfere in any way with the exercise by other state authorities, including the Council or Parliament.
GR1 (Government): According to Article 1 of the Law of Ukraine on Parliamentary Committee and Article 89 of the Constitution, Parliamentary Committee are not bodies of the state power, and their findings and recommendations are not binding on the Parliament and are of advisory character.
GR1 (Government): As to the question on the availability of sufficient safeguards of independence for judges of the High Administrative Court, especially with the Council, the government again refers to the position as presented in the observation of 15 February 2012, and considers that they listed a sufficient range of legislative safeguards for independence of justice at the High Administrative Court.