STEDH (Sección 2ª) de 14 abril 2009, caso Tarsasag a Szabadsagjogokert contra Hungría

AutorJosé Miguel Hernández López
Cargo del AutorMáster Universitario en Derechos Fundamentales

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Ver nota 1



17. The applicant submitted that the Hungarian court decisions in the present case had constituted an infringement of its right to receive information of public interest. In its view, this was in breach of Article 10 of the Convention, of which the relevant part reads as follows:

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. ...

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, ... for the protection of the reputation or rights of others, [or] for preventing the disclosure of information received in confidence, ...

A The Government’s arguments
  1. The Government did not contest that there had been an interference with the applicant’s rights under Article 10 of the Convention. However, they emphasised that paragraph 2 of that provision allowed the Contracting States to restrict this right in certain circumstances. According to the Court’s case-law, States have a certain margin of appreciation in determining whether or not a restriction on the rights protected by Article 10 is necessary.

  2. They submitted that the Constitution recognised the rights to freedom of expression and access to information of public interest, and ensured their exercise by regulation under separate laws. The possibility to interfere with these rights was therefore prescribed by law. The Data Act 1992 regulated the functioning of the fundamental rights enshrined in Articles 59 (1) and 61(1) of the Constitution. Its definition of public information, which had been in force until an amendment on 1 June 2005, had excluded personal data, whilst ensuring access to other types of data. In the instant case, the second-instance court had established that the data sought to be accessed had been personal, because it had contained the MP’s personal details and opinions, which would enable conclusions to be drawn about his personality. The mere fact that the MP had decided to lodge a constitutional complaint could not be regarded as consent to disclosure, since the Constitutional Court deliberated in camera and its decisions, although pronounced publicly, did not contain personal information about those having applied. Consequently, cons-

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    titutional applicants did not have to take into account the possibility that their personal details would be disclosed.

  3. The Government endorsed the courts" finding that the handling of public data was governed by the rule defining its public nature, whilst that of personal data by the rule of self-determination. Hence, access to data of a public nature could be restricted on the ground that it contained information the preservation of which was essential to protect personal data. Should the legislature make constitutional complaints and the personal data contained therein accessible to anyone by characterising the complaints as public information, this would discourage citizens from instituting such proceedings. Therefore, in the Government’s view, the domestic courts in the present case had acted lawfully and in conformity with the Convention when they had denied access to the MP’s constitutional complaint.

  4. Within the framework of the Data Act 1992, the right of access to data of public interest was restricted by the right to the protection of personal data. The Government maintained that this restriction met the requirements laid down in the Convention, in that it was prescribed by law, it was applied in order to protect the rights of others and it was necessary in a democratic society.

B The applicant’s...

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