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Prawo do uzyskania informacji w Europejskiej Konwencji Praw Człowieka : cicha strasburska rewolucja

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Kamiński I. C.

Problemy Współczesnego Prawa Międzynarodowego, Europejskiego i Porównawczego

2016

vol. 14

9-27

Article 10 of the European Convention on Human Rights provides that freedom of expression includes the right to receive information and ideas. But it is unclear if that freedom also involves the right to seek information and the right to have access to public information, first of all stored in registers controlled or administered by the State. The first drafts of the European Convention secured a broader right to seek information but that provision has not been enacted in the final version of the Convention. In its case law, the European Commission of Human Rights and the European Court of Human Rights understood the right to receive information as basically corollary of the right to communicate information, i.e. an accompanying entitlement of the receiver to get information from someone else, in principle the media, which already communicates or is going to communicate. Although the Strasbourg Court did not exclude that there might exist, under some circumstances, a right to have access to registers, neither the nature nor the scope of that right have been specified. While rejecting a broader concept of freedom of information as being a part of freedom of expression, at the same time the Court was ready to accept a right of access within the framework of other Convention provisions, first of all that on the protection of private and family right (Article 8). Such an approach was confirmed by the Grand Chamber judgment rendered in 1998 in the Guerra and Others against Italy case. But since 2009 in a series of judgments the Court has started accepting, having identified some specific normative contexts and followed by the ensuing distinctions, that the right of access exists as an aspect of freedom of expression. The Court combined that right of access with the fulfilment of the public watchdog function by the media and non-governmental organisations (access to information is needed for them to be public watchdogs). In another case access to information was made part and parcel of the research activity. That quiet shift, even a revolution, in the Court's approach had given rise to two reactions among judges as expressed in separate opinions (concurring or dissenting) appended to the judgments. Some judges invited the Court to accept a general right of access for all individuals; such a step would correspond with the contemporary trends and understanding of democratic society. Other judges vehemently opposed the Court's activism as demonstrated in the recent case law and persistently insisted that the Court adhere to the restrictive reading of the right to receive information under Article 10. Mindful of the intensifying controversy, the Court decided to hear a new case on access to information as a Grand Chamber panel composed of 17 judges. The upcoming judgment in Magyar Helsinki Bizottság against Hungary, expected in 2016, should clarify what the relevant Convention standard now looks like.

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1 Problemy Współczesnego Prawa Międzynarodowego, Europejskiego i Porównawczego

1 2016

1 Kamiński I. C.

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Prawo do uzyskania informacji w Europejskiej Konwencji Praw Człowieka : cicha strasburska rewolucja