TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): And thus, the applicant's data requests serve the public interest.
AP1 (Applicant): The applicant has not only proven through the freedom of information requests in the framework of the research that the distribution of appointments is disproportionate, being in fact the first in Hungary to do so, but has also developed and tested an alternative pilot model of a new appointment system in close cooperation with some police headquarters and the bar associations.
AP1 (Applicant): However, in order to prove that there is in fact a problem which needs to be handled on national scale, the applicant needed comprehensive data first on the practice of appointments.
AP1 (Applicant): Therefore, solely the cooperation with the police as suggested in the government's memorial would not have been enough to provide evidence on the flaws of the appointment system.
AP1 (Applicant): As to the remark of the government's memorial that there was no explanation in the methodology of the survey on the selection of police departments, the applicant would like to submit that, as also showed by the research study, the 28 police departments were selected to cover all seven regions of Hungary equally.
AP1 (Applicant): Four police departments were selected in each region, with a view to cover large and smaller cities and county police departments as well.
AP1 (Applicant): The applicant did not conclude in his research study, quote, that the most frequently appointed legal aid defense counsels are those who are the least active in the course of the criminal proceedings, and they provide the lowest quality of service, unquote.
AP1 (Applicant): Instead, it stated that the data obtained showed a disproportionate appointment practice, proving the existence of in-house lawyers, lawyers who base their practice on ex-official appointment, and that the performance of ex-official defense counsels in general was lower than that of retained counsels.
AP1 (Applicant): The latest statement was based on the applicant and other stakeholders' previous researches.
AP1 (Applicant): Therefore, it is wrong to conclude that the non-disclosure of the data requested was justified by the necessity to protect the reputation of others, as argued by the government.
AP1 (Applicant): In addition, it has to be noted that the later argument was not evoked by the authorities in the domestic procedure.
AP1 (Applicant): The fact that the research study did not contain any names of the legal aid defense counsels only means that the applicant used but chose not to disclose the names.
AP1 (Applicant): However, obtaining the names of appointed defense counsels was necessary for assessing the number of appointments a defense counsel had received per year.
AP1 (Applicant): To that end, the applicant also had to see when a law office was appointed instead of an individual lawyer.
AP1 (Applicant): It has to be borne in mind that according to the research, some individual attorneys received hundreds of appointments per year, the highest number being 453.
AP1 (Applicant): Therefore, requesting anonymous statistical data suggested by the government's memorial would have been inadequate.
AP1 (Applicant): The argument that compares journalists to non-governmental organizations and states that they are, quote, bound by stricter professional standards as regards the factual foundations of their statements, unquote, is also misleading.
AP1 (Applicant): The liability of the applicant and its researchers for unfounded statements is as strict as any publishers and authors.
AP1 (Applicant): This, of course, creates a clear legal obligation for the applicant to criticize the work of the system under research only on the basis of facts.
AP1 (Applicant): Finally, the applicant refuses the government's insinuation that it had any ulterior motive with regard to the freedom of information request, quote, as an association with a network of lawyers providing legal aid, also in criminal cases, who might be potential competitors to the legal aid defense councils, unquote.
AP1 (Applicant): The applicant has been advocating for almost a decade for the reform of the appointment system with a view to ensure its transparency and the right of indigent defendants to effective defense, recommending that appointments are made by an independent entity instead of the police and or for randomizing the appointment system.
AP1 (Applicant): It is hard to see how these advocacy efforts could have led to any advantage for the attorneys contracted by the applicant.
AP1 (Applicant): Lastly, it must be emphasized that the around 10 defense councils usually contracted by the applicant typically represent victims of ill treatment and asylum seekers.
AP1 (Applicant): And the applicant typically pays for defense council work only when the ill-treated person is also charged with violence against official persons, meaning only a handful of cases per year from the hundreds of cases the applicant provides legal aid in.
AP1 (Applicant): That said, the applicant submits that the consequences of the state's failure to comply with its obligation flowing from Article 10 of the Convention were twofold.
AP1 (Applicant): First, refusing the freedom of information request did in fact affect the research of the applicant.
AP1 (Applicant): It goes without explanation that the credibility and well-founded nature of a scientific study is necessarily weakened when the amount of empirical data serving as its basis decreases.
AP1 (Applicant): In this relation, it is important to point out that the denied requests underlying in the present case concern Debrecen, the second largest city of Hungary in terms of population, and the fourth largest county from among the 19 counties of Hungary.
AP1 (Applicant): Since Debrecen is a seat of a regional court with 390 practicing attorneys at law, the missing data obviously affected the grounding of the findings of the research.
AP1 (Applicant): Second, the Supreme Court's decision in the case had a chilling effect with regard to similar freedom of information requests and research.
AP1 (Applicant): The Supreme Court's decision in the present case was referred to in two subsequent decisions of the Supreme Court, both approving the denial of the applicant's similar freedom of information requests submitted in the framework of the same research, and both pending before the European Court of Human Rights.
AP1 (Applicant): Moreover, the decision of the Supreme Court was published separately as BEH 2011-69, thus as a published court ruling which in the Hungarian system strongly influences and orientates the practice of courts.
AP1 (Applicant): The government's memorial itself quotes the decision under the heading jurisprudence, even though the debated decision obviously cannot be a reference point in determining applicable law in the case.
AP1 (Applicant): The Supreme Court's decision was a leading case on the issue, even in the view of the government.
AP1 (Applicant): Consequently, the Supreme Court's decision has a chilling effect on any individuals or organizations which would intend to research the practice of ex-official appointments in the future, and thereby on freedom of expression.
AP1 (Applicant): Let me finish with a verbatim incorporation of documentary evidence supporting the arguments on the effect I just described.
AP1 (Applicant): The Hungarian online investigative journalism portal, Átlátszó, submitted a freedom of information request on the 15th of September to the Szeged Police Department, asking for the disclosure of names of defense counsels appointed by the department in the criminal procedures initiated for the newly imposed border blockade crimes, and the number of appointments the individual counsels had.
AP1 (Applicant): These crimes are prosecuted in a special simplified fast-track procedure, and the vulnerability of defendants, mostly asylum seekers, make the accountability for the decision of the appointments of defense counsels even more important than in other criminal cases.
AP1 (Applicant): In its response, sent on the 28th of October, the department denied to disclose the requested data, with an argument specifically citing the same Supreme Court judgment this case is about.
AP1 (Applicant): As the wording of the 2011 Act on the Freedom of Information maintained the rule on public data of public interest, as it was included in the 1992 Act applied in the case, the police found no need to consider the specific nature of the data requested or consider other legal arguments.
AP1 (Applicant): This proves that the challenge court decision had led to a situation where the requested data are inaccessible for the general public.
AP1 (Applicant): To sum it up, the Supreme Court's decision did in fact affect the effectiveness of the applicant's contribution to the debate of an issue of public interest, and the effectiveness of any such future attempts in relation to the practice of appointments, either by the applicant or by other actors.
AP1 (Applicant): Mr. President, members of the honorable court, thank you for your attention.
Guido Raimondi (JudgeP): Thank you very much, Dr. Sepsi.
Guido Raimondi (JudgeP): Now I call Mr. Coppel, who has 15 minutes.
Guido Raimondi (JudgeP): Please, Mr. Coppel.
TP1 (ThirdParty): Mr. President and members of the court,
TP1 (ThirdParty): the United Kingdom is grateful for the permission of the court to intervene in these proceedings.
TP1 (ThirdParty): This is an important case.
TP1 (ThirdParty): It represents a long overdue opportunity for the Grand Chamber to state a definitive position on the question of whether Article 10.1 of the Convention
TP1 (ThirdParty): confers a right to freedom of information.
TP1 (ThirdParty): And by a right to freedom of information, I mean a prima facie right of access to information which is held by public bodies, regardless of whether that information has been made available to the public or whether the public body in question is willing to impart it.
TP1 (ThirdParty): Until a few years ago, the answer to that question was not in any doubt.
TP1 (ThirdParty): It is clear from the travaux to the Convention that the framers deliberately chose not to include any right approximating to a right to freedom of information.
TP1 (ThirdParty): Consistent with the travaux, there is a long and consistent line of Grand Chamber judgments, in particular Leander and Sweden, Gaskin and the UK, Guerra and Italy, Roche and the UK, and Gilbert and Sweden, which find that Article 10.1 means what it says.
TP1 (ThirdParty): It imposes an obligation upon contracting states not to interfere with the receiving of information which somebody wishes to impart, but not a positive obligation to impart information on request, whether that information be personal data, environmental information or other types of information held by the state.
TP1 (ThirdParty): The Fifth Section of the Court has recently confirmed in Weber and Germany that that remains the position.
TP1 (ThirdParty): The Court, it stated, does not consider that a general obligation on the state to provide information in a specific form can be inferred from its case law under Article 10.
TP1 (ThirdParty): But as the Court will be aware, other section judgments have adopted different approaches.
TP1 (ThirdParty): In our view, the time has come for the Grand Chamber to resolve the confusion which has arisen in recent times by reaffirming the previous Grand Chamber case law.
TP1 (ThirdParty): This case is important not only because of the implications of the alleged right to freedom of information which the applicant organisation submits that you should identify within Article 10.
TP1 (ThirdParty): Those implications are a matter of the greatest significance for many contracting states.
TP1 (ThirdParty): This case is important also for what the Court's judgment will mean for the legitimacy of the Court's activities in deciding cases which arise under the Convention.
TP1 (ThirdParty): If the Court is to remain within the limits of interpretation of the Convention, there can be no doubt that the previous Grand Chamber judgments should be affirmed.
TP1 (ThirdParty): All of the applicable principles of interpretation of treaties in the Vienna Convention and in the case law of the Court point to the conclusion that Article 10 does not confer any implied and general right to freedom of information.
TP1 (ThirdParty): The language of Article 10 is against such a right and the traveau confirm that that was no accident.
TP1 (ThirdParty): The most authoritative case law of the Court points only in one direction.
TP1 (ThirdParty): We recognise that there are two other recent strands of authority from sections of the Court which, contrary to Grand Chamber authority, purport to find within Article 10.1
TP1 (ThirdParty): a general or a more limited right to freedom of information.
TP1 (ThirdParty): In our view, both of these strands of authority are wrong in principle.
TP1 (ThirdParty): As for the more limited right, the second, third and fourth sections have all decided cases, in particular Kennedy and Hungary, Rossiano and Romania, and Guseva and Bulgaria, which appear to state that there may be a violation of Article 10 where one arm of the state has recognised a right to receive information, but another arm of the state has frustrated or not given effect to that right.
TP1 (ThirdParty): The more extreme manifestation of that doctrine can be found in judgments of the first, second and fifth sections, Mäkij and the Czech Republic, Tarszaszág and Hungary and Oskar Rysz-Szyszyn and Reineggen against Austria, which appear to find a general right of access to information which is of equal status to the right of freedom of expression, which is expressly stated in Article 10.
TP1 (ThirdParty): We acknowledge that there are examples in the previous case law of the Court where it has changed its mind about the effect of a provision of the Convention.
TP1 (ThirdParty): But none of these isolated instances to which I refer has required departure from such a long and distinguished line of Grand Chamber judgments as that with which we are concerned today.
TP1 (ThirdParty): None has involved the Court recognising what is in effect a new and highly significant right as being implicit within a provision of the Convention whose wording suggests the opposite.
TP1 (ThirdParty): Moreover, those few instances of change, for example on the rights of homosexuals and of transsexuals under Article 8 of the Convention, have always been in the context of a perceived need to update the case law of the Court so that it reflects contemporary social attitudes.
TP1 (ThirdParty): There is no such need in the case of freedom of information.
TP1 (ThirdParty): The practice of contracting States on this subject varies widely.
TP1 (ThirdParty): The Council of Europe has acted only in late 2008 to agree a Convention on access to official documents.
TP1 (ThirdParty): That Convention has been ratified by only seven contracting States and is not in force.
TP1 (ThirdParty): It illustrates some, and only some, of the complexity and detail which must accompany any right of access to official information, none of which is to be found within Article 10, and with which the Court will have to grapple in this case if it is to accept the submissions of the applicant organisation.
TP1 (ThirdParty): Nor is this a matter of social morality, where it may be possible to justify the Court seeking to provoke a change in social attitudes in some States.
TP1 (ThirdParty): In short, if the Court were now to recognise a right of access to information held by the State, that would far exceed legitimate interpretation of the Convention and would amount to judicial legislation.
TP1 (ThirdParty): For the reasons we have given in our written observations, none of the Chamber judgments to which I have referred provide any satisfactory basis for the Court declining to follow the previous case law of the Grand Chamber.
TP1 (ThirdParty): In those cases, it was either expressly conceded or just not argued by the parties that Article 10.1 conferred an appropriate right
TP1 (ThirdParty): to access information which the State wished to withhold, or else that issue simply did not arise on the facts properly analysed.
TP1 (ThirdParty): None of the Chamber judgments faces up to the Grand Chamber case law and tries to explain why that case law should no longer be followed.
TP1 (ThirdParty): We submit that those judgments have little or no persuasive value in the current proceedings.
TP1 (ThirdParty): If, despite what we have said, the Grand Chamber is not content to stand by its previous case law and wishes to give further recognition to a right of access to official information, we have suggested in paragraph 4.10 of our written observations
TP1 (ThirdParty): the only principled basis upon which the Court could find that Article 10.1 provides a limited right to freedom of information,
TP1 (ThirdParty): that is, in circumstances where domestic law has already recognised a right to the information in question.
TP1 (ThirdParty): In that situation, which was the factual position in some of the Chamber judgments, such as Guseva and Bulgaria, it may be said that one arm of the State is willing to provide information, but another has acted in breach of the negative obligation which is expressly stated in Article 10.1
TP1 (ThirdParty): by interfering with the receipt of that information.
TP1 (ThirdParty): That is, we submit, the only coherent basis on which any freedom of information right may be found within Article 10, but it is not without significant difficulties and dangers.
TP1 (ThirdParty): The UK Supreme Court has questioned the logic of relying upon Article 10, rather than in particular Article 6, in order to address the issue of defiance of domestic court orders.
TP1 (ThirdParty): Further, this explanation of Article 10 will inevitably create a temptation at the level of this Court to find a domestic law right to information, even where that was not the conclusion of the domestic courts which dealt with the matter.
TP1 (ThirdParty): This Court is not, of course, an appellate tribunal and that temptation must be firmly resisted.
TP1 (ThirdParty): In the absence of a final domestic court order requiring the disclosure of information, it would not be open to this Court, we submit, to find that there is a domestic right of access to information which is capable of giving rise to an Article 10 right on this analysis.
TP1 (ThirdParty): So in conclusion, we urge the Court to confirm the previous case law of the Grand Chamber, which, as an interpretation of Article 10.1,
TP1 (ThirdParty): is long-standing, principled and plainly correct.
TP1 (ThirdParty): But whichever approach is ultimately adopted, the United Kingdom would invite the Court to address previous Grand Chamber judgments and to explain in clear terms why these ought or ought not to be followed.
TP1 (ThirdParty): That is the very least that must be done in order to maintain the legitimacy of and universal respect for the decision-making of the Court.
TP1 (ThirdParty): For those reasons, together with the reasons set out in our written observations, we invite the Court to decide that Article 10 of the Convention does not create an implied right to freedom of information.
Guido Raimondi (JudgeP): Thank you very much, Mr. Coppel.
Guido Raimondi (JudgeP): Now I turn towards my colleagues in case they have questions.
Guido Raimondi (JudgeP): I see Judge Spano, please.
Robert Spano (Judge): As the parties are aware, this case was relinquished to the Grand Chamber, so the convention stipulates that we are dealing with a serious question affecting the interpretation of the convention and is on that basis, and due to some of the arguments made here today, that I would like to pose a question, mainly to the applicants, but I would like, with the permission of the president, to ask the government and the third-party intervener to maybe comment.
Robert Spano (Judge): There was some notion or suggestion here that we, in examining the applicability issue, should look at the implications, the possible consequences of that approach, and that issue is not dealt with directly by the applicants in their brief, so that's why I put forward the question.
Robert Spano (Judge): And I would like to focus here on what the applicants consider to be the possible consequences of that approach in the following terms.
Robert Spano (Judge): We see that freedom of information legislation sometimes provides, or often provides, for absolute limitations under domestic law.
Robert Spano (Judge): In certain circumstances, there simply is not a document, for example, dealing with national security issues, law enforcement issues, they are simply excluded from the domestic right.
Robert Spano (Judge): How would the applicants invite the court to deal with those types of situation, assuming that there is a right under Article 10, and thus, in general, Article 10 would necessitate a proportionality-type analysis?
Robert Spano (Judge): How would we, the court, be able to deal with those kinds of situations in particular?
Robert Spano (Judge): And on that note as well, would the court, assuming that such a right would be recognized, what about notions such as what constitutes a public authority, a quasi-public authority, an official document?
Robert Spano (Judge): Would these kinds of notions have to be autonomously interpreted by the court, or do you foresee a possible different way the court could proceed on that basis?
Robert Spano (Judge): My second question is linked to an argument made by the applicants here today.
Robert Spano (Judge): They invite us to look at, the court to look at, other international instruments and decisions.
Robert Spano (Judge): The Inter-American Court of Human Rights, the UN Human Rights Committee, if I'm not mistaken, the provisions they are dealing with explicitly mention a right to seek information, which, as you know, Article 10 does not.
Robert Spano (Judge): Can the applicants confront that issue in particular, and could they tell the court, are there any examples either in international norms, or even in constitutional norms, where the right of access to documents has been considered an inherent rule in a similar textual formulation like Article 10 of the Convention?
Guido Raimondi (JudgeP): Thank you very much, Judge Spano.
Linos-Alexandre Sicilianos (Judge): My question is mainly addressed to the government, but it is also open to the applicants if they wish to comment.
Linos-Alexandre Sicilianos (Judge): According to Article 31, Paragraph 3C of the Vienna Convention on the Law of Treaties, the court must take into account any relevant rules and principles of international law applicable in the relations between the contracting parties, in our case, Hungary.
Linos-Alexandre Sicilianos (Judge): As you know, this provision has been repeatedly invoked and applied by our court as an important rule of interpretation of the European Convention of Human Rights.
Linos-Alexandre Sicilianos (Judge): The UK government has correctly referred to Article 31 of the Vienna Convention.
Linos-Alexandre Sicilianos (Judge): Now, Hungary is bound by the International Covenant on Civil and Political Rights of 1966, whose Article 19 explicitly recognized the right to seek information.
Linos-Alexandre Sicilianos (Judge): Hungary has also ratified the Council of Europe Convention on access to official documents.
Linos-Alexandre Sicilianos (Judge): Furthermore, Hungary is a member of the EU whose Charter of Fundamental Rights and relevant 2001 regulation recognized the right of access to documents of the EU institutions.
Linos-Alexandre Sicilianos (Judge): So in view of those apparently relevant rules and principles of international and European law binding upon or accepted by Hungary, how do you see the functioning of Article 31, paragraph C, of the Vienna Convention in the present case?
Guido Raimondi (JudgeP): Thank you very much, Judge Sicilianos.
Iulia Antoanella Motoc (Judge): Ma question s'adresse également au gouvernement hongrois et aussi au requérant, s'il veut en faire partie, s'il veut commenter.
Iulia Antoanella Motoc (Judge): Quelque chose est lié à la question qui a été mise par le juge Sicilianos.