facebook
twitter
vk
instagram
linkedin
google+
tumblr
akademia
youtube
skype
mendeley
Wiki
Global international scientific
analytical project
GISAP
GISAP logotip
Перевод страницы
 

FREEDOM OF INFORMATION’S COURT DEFENCE IN EUROPEAN COURT FOR HUMAN RIGHTS’ PRACTICE / Судебная защита свободы информации в практике Европейского суда по правам человека

FREEDOM OF INFORMATION’S COURT DEFENCE  IN EUROPEAN COURT FOR HUMAN RIGHTS’ PRACTICE / Судебная защита свободы информации в практике Европейского суда по правам человека
Виталий Мельничук, аспирант

Киевский международный университет , Украина

Участник первенства: Национальное первенство по научной аналитике - "Украина";

В наведеній праці досліджуються різні аспекти практики Європейського суду з прав людини у сфері реалізації права на свободу інформації, яка розглядається як одне з основних прав і свобод людини, закріплене в статті 10 Конвенції про захист прав людини і основоположних свобод, і як засіб захисту прав людини, закріплене в Конвенції. Основна увага приділяється визначенню змісту свободи інформації.

Ключові слова: доступ до інформації, міжнародні стандарти, збалансовані інтереси, право на доступ, свобода творчості, права людини, обмеження інформації, Конвенція про захист прав людини і основоположних свобод, Європейський суд з прав людини, суспільний інтерес.

We study various aspects of the European Court of Human Rights’ practicein the implementation of the right to freedom of information, which is considered  as one of the fundamental rights and freedoms enshrined in Article10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and as a means of protection of human rights enshrined in the Convention. The focus is on the definition of the content of freedom of information.

Keywords: accesstoinformation, internationalstandards, balancedinterests, accessright,creativity freedom, human rights, limits of information, Convention for the Protection of Human Rights and Fundamental Freedoms, European Court of Human Rights, public interest.

 

In modern society, the right to freedom of information has become one of the fundamental human rights of legal and political importance. Freedom of information means two closely related functions: firstly, the right to read, listen, see and receive information in different forms, and secondly, the right to information as a basis for the transmission of ideas or facts to others. Study of the right to freedom of information is essential for its defense in domestic law. Currently, there is a tendency to adapt domestic legislation to international law in the field of human rights protection, as well as the reception of European law by the EU states. However, the constituent elements of right for information are complex, and each of them requires special attention. Ensuring common standards of human rights puts obligations on EU states to improve theirlegal system and human rights protection mechanism. The need for legal regulation of information processes taking into account the rights of the individual and society, protection of other values,is particularly important.

Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (hereinafter - the Convention), considers the right to information in the framework of freedom of expression. The issue of freedom of information also appears in the protection of a number of human rights: the right to life, the right to privacy and other rights enshrined in the Convention. According to Article 10: "Everyone has the right to freedom of expression. This right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." In the Convention, freedom of information, freedom of speech, freedom of thought,are reflected in an article called "Freedom of expression", which suggests that these freedoms often overlap. Article 10 regulates the freedom of expression in two directions. The first paragraph clarifies the specific rights related to freedom of expression, the second paragraph determinesthe legal basis for restrictionsof the right to freedom of expression.

Freedom of information covers a number of rights related to the self-realization of man: the right to know about hisorigins; the right to information on economic issues; creative freedom; the right to obtain information from public authorities; the right to protection of honor and dignity; the right to information about the services, products; the right of access to public information. As pointed out by T. Emerson, the right to know includes two elements: "1) the right to read, listen, see, that is to obtain information, and 2) the right to disseminate information - which is obtained as a result of the above actions" [1].

The public's right to information should be protected as a right of the potential information recipient. Freedom of information can be defined as the right of access to information held by public authorities. European Court of Human Rights (hereinafter - ECHR) refers to the "public's right to be notified" [2, p. 46 - 47] or "the right to public awareness" [2, p. 49]. ECHRdetermined that the "Freedom of Information prohibits government interference in the freedom of information and freedom of access to information" [3, p. 10]. The fact is that government in this process plays a dual role: it should avoid interference in the reception and dissemination of information, and to create appropriate conditions for the realization and protection of these rights. The right to information is realized in two ways: 1) free flow of information in society, in which the participants are the people, the media, commercial, social and other organizations with an absolute non-interference of the state in this process; 2) one of the parties is the state, and it is obliged to provide appropriate conditions for obtaining information from government agencies. Thus, in each of these processes the state is assigned an important role.

The press acts as a social observer (public watchdog). The Court finds that the state has aduty not to impede the free flow of information. Media and non-governmental organizations will organize discussion and public debate. Indissemination of information, non-governmental organizations also play an important role. The right to criticize the government ECHRformulated in 1986, adding at the same time, that the media have aright to impart information and ideas that are of interest to society, including those relating to public issues. Determined by the difference between the right to access to information contained in the documents belonging to the state and society's right to obtain information from independent media [4, p. 19-20]. The Court pointed out that societyhas aright to receive information in a variety of areas that are of interest to people, including political issues, and the media have aright to share this information. Members of the public also have a right to receive information on various positions and ideas, even if they are contrary to the general rules. In accordance with the practice of ECHRstate intervention in the activities of the media and freedom of information is excluded.

Thus, the state should not interfere in the relationship between the broadcaster and the public, who are entitled to direct communication and dialogue with each other. In case"Sirbu and others against Moldova" ECHRmarked a barrier between the right to obtain information from independent media and the right of access to governmentdocuments and information. The Court found that there are no restrictions of press freedom, "Interior Ministry did not disclose the information about intelligence service and military service, for which the applicants complained," [4, p. 27]. Summarizing practice ECHR emphasizedthat the right to information does not always require the disclosure of state or military secrets, as well as the secrets of the intelligence and police services. It should be noted that the authorities must function subject to the safeguards established by the laws, and they can not violate the rights of others [4, p. 31]. The same can be said of the secret service [4, p. 49 - 50]. In the case of "Leander v Sweden," it was found that if the person does not provide information on the collection and storage of informationthatviolates the principle of respect for private life under Article 8 of the Convention [3, p. 77].

Dissemination of information in the media in order to strengthen hatred against groups other than their nationality, ethnic origin, are dangerous to society. As noted by T. Mendel, in orderto countinformation as agitation and propaganda, inciting racial, national, religious and social discord and enmity, theremust bethree basic elements: intention, abetting, predictable results [5, p. 4 - 5]. If you have a specific purpose - to incite the target group for social strife as a result of which the situation will be aggravated or group feels offended, such a statement may be considered hate speech. Such speeches and publications espousing racism, nationalism, religious hatred, etc., arebecomingthe cause of discrimination, undermine tolerance in society.

ECHR found that the main task is to protect groups of persons targeted by the campaign, and the right to freedom of informationdstribution. Court openly said that agitation and propaganda that incite racial, national, religious and social discord and enmity, can not be protected under Article 10 of the Convention ("Feret against Belgium," "Leroy against France"). In the case of "Erbakan v Turkey" ECHR said that "tolerance and equal respect for people are the foundation of a democratic and pluralistic society." Thus, the use of sanctions and prevention of broadcasts which incite intolerance and hatred, according to ECHR, "can be considered as important" [4, p. 56].

The right to receive accurate information about the state of the environment is a fundamental human right. According to the practice and recommendations byECHR state is obliged to warn the people who are at risk aboutenvironmentconditions[3, p. 51]. In the case of "Guerra and Others v Italy," the applicants complained that the local authorities had not warned the public about a high degree of pollution of the environment as the main factors of risk and didnot tellhow to prevent it. ECHR determined that strict environmental problems may violate the right to privacy of the home and the right to private and family life and endanger the safety of people. The court said that the Italian Government was obliged to inform the applicants about the high risk factor, and that the state had violated their rights enshrined in Article 8 of the Convention. [3, p. 53]

ECHR discussed the publication and dissemination of information relating to adverse events associated with the mass destruction of whales. It was determined that the freedom of information - one of the most important issues in terms of protection of human rights, in connection with what is important to warn people about cases of pollution [6, p. 11].

The right to know about their origins - one of the fundamental human rights enshrined in the Convention. This is mentioned in manycases. As follows from the case "Odievre against France," applicant was adopted, and her request for access to information was rejected by the state. She was born under a special procedure that allows mothers to remain anonymous. ECHR found no violation of Articles 8 and 14 due to the fact that there was observed a fair balance between competing interests - such as the abandonment of children and illegal abortions, development of child's personality and the right to know the origins, mother's right to health protection by having delivery in adequatemedical conditions and protection of other family members. The applicant could havefileda request for disclosure of hermother’s personalityonly with her consent.

Case "Godelli and Others v Italy" is connected to inability to obtain identifying information by children abandoned at birth and mother's right to privacy [6, p. 15]. In this case itwasfound that the Italian legal system does not take into account the interests of the child,and assumption of a violation of Article 8 of the Convention on the right to respect for private and family life is excluded. It was believed that a fair balance has not been defined by the Government, the refusal to disclose information to mothers about motherhood led to the applicant's inability to obtain any information about herbackground, without the consent of the mother.

In the case of "Gaskinvthe United Kingdom" the applicant, who spent his childhood in orphanages and foster families, argued that the refusal of the United Kingdom to grant him access to his personal file compiled during his stay under the care of state authorities is a violation of Articles8 and 10of theConvention. The information contained in the personal file, is a report and messagesbyvarious entities - medical personnel, school teachers, police officers, social workers, foster parents, school staff. ECHR determined that everyone has aright to know about hisorigins. The Court confirmed that the state must not restrict access of a person to information that others wish or may be willing to give him, but the Article10 does not provide for the State's obligation to provide certain information [6, p. 52].

ECHR Practice shows that reputation and rights of others are seen as a legitimate target. At the same time, to prevent crime and to protect health, morals, or the law of freedom of information may be limited. Defamation cases are resolved on the basis of Articles8 and 10 of the Convention. In cases of slander [4, p. 61], the Court has regarded the right to protection of reputation as a human right enshrined in the Convention. In the case of "Otto Preminger Institute v. Austria, the" right to protection of reputation recognized as an integral part of the right to respect for private and family life, as enshrined in Article 8 [4, p. 62]. ECHR said that facts and opinions (facts and values) are of particular importance because the view may be true and not true, then there is subjectivecharacter.

In its case law the European Court of Human Rights established a link between Article 8 and Article 10of the Conventionwhich protects freedom of expression. To convince the commission, "the concept of private life under Article 8 also includes to a certain degree aright to establish and maintain relationships with other people in order to realize the individual" [4, p. 112]. Two elements of the right to privacy, as defined above, are not mentioned in Article 8. However, paragraph 2 of Article 10 there is a direct link to these two elements as grounds for restricting freedom of expression - to protect the reputation and prevent the disclosure of information received in confidence. Confidential information is: information and documents relating to the identity of the person; information concerning health, biological and psychological characteristics of the person; Information about the private life of a person; correspondence and telephone conversations of the person ("Klass and Others v Germany").

Artistic freedom is related to the right to information. Trade and other demonstrations of creative works - the most important element of society, and the exchange of ideas and opinions is beneficial to society. The Court stated that "freedom of speech for all is one of the main factors in the development and prosperity of the society" [3, p. 122]. ECHR is trying to create a balance in matters of censorship of books. According to the practice of censorship of school books long represented a deviation from the right to freedom of information. Freedom of expression includes the right to receive and impart not only information and ideas of neutrality, but the ideaswhich areelementsof pluralism. Creativity has aright to spread, and society has a right to be informed about various philosophical, creative ideas. Itwas also given anopportunity to take part in exchange of cultural, political and social information and ideas with the obligation of the State not to interfere in the freedom of expression of creative people.

One of the interesting issues related to the freedom of information, - the right to find out historical truth and the right to free debate about historical facts. ECHR ruled that the search for historical truth isan integral part of freedom of expression [3, p. 69]. In the case of "Monnat against Switzerland," the Court noted that each country should make an effort to open discussion of its history [3, p. 64]. In fact, "Sener v Turkey” Court protects the right to political debate on issues that are of interest to people [3, p. 70].

Establishment of common standards for protection of human rights and freedoms, definition of the content of specific rights and freedoms in general for the whole world form guarantees improvement in the protection of these rights and freedoms. In connection with this state - parties to the Convention are trying to adapt theirlegal system to the European law in the field of human rights.

The Convention provides for the right to freedom of expression, the right to freedom of information referred to in Article 10, as a set of closely related to each other rights. Despite the fact that article 10 called "Freedom of expression" and the right to information is defined as a part of such freedom, freedom of information in the broad sense includes freedom of speech and freedom of expression and right to information. But these rights and freedoms often overlap.

Criteria for determining the balance of interests is not specified, and these issues are resolved on the basis of the factual circumstances of specific cases. But the practice by ECHR establishes some important rules that must be followed in dealing with the case:

- Freedom of expression constitutes one of the foundations of a democratic society;

- Tolerance and equal respect for people are the foundation of a democratic and pluralist society;

- Issues of interest to society, should be disclosed.

Mainlycomplaints are studied based on specific facts, thus,establishment of common rulesis complicated, but ECHR practice shows that reconciliation of interests and a balance between different aspects are more important. Fundamentals of restrictions onthese rights are reflected in the Convention. However, the main trend is that the foundations of restrictions on the right to information should be narrowly interpreted and executed by the courts of states. In general, the right to freedom of information is the foundation of a democratic society and a key element in personal fulfillment.

 

References:

  • 1. Thomas I. Emerson. Legal Foundations of the Right to Know. Washington University Law Quarterly. Volume 1976, Number 1.
  • 2. Coppel, Philip. Information Rights. USA, Hart Publishing. – 2014. – 1638 p.
  • 3. International human rights reports; An Annotated Guide. London, Irwin Law Inc. – 2012. – 336 p.
  • 4. The Implementation in National Law of the European Convention on Human Rights/ Proceedings of the Fourth Copenhagen Conference on Human Rights. Copenhagen: Danish Center of Human Rights – 2009. – 133 p.
  • 5. Toby Mendel. Hate Speech Rules Under International Law. February 2010, p. 10.
  • 6. Wadham, John; Harris, Kelly; Metcalfe, Eric. Blackstone’s Guide to the Freedom of Information Act 2000. Oxford, Oxford University Press. – 2014. – 384 p.
0
Ваша оценка: Нет Средняя: 5.8 (6 голосов)
Комментарии: 6

Королев Евгений Сергеевич

Очень хорошая работа с концептуальным авторским взглядом на проблематику судебной защиты информации. С пожеланием дальнейших научных продвижений, Е.С. Королёв.

Иван Коноплицкий

Статья очень актуальная! С интересом познакомился с докладом! Удачи автору!

Коваль Любовь Николаевна

Очень интересное исследование в сфере изучения прав и свобод человека с хорошей теоретической базой и аргументацией, основанной на анализе решений Европейского суда по правам человека. Неоспоримым преимуществом работы является использование новейших источников. Также неоспорима обоснованность выводов данной работы.

Чиладзе Георгий Бидзинович

The author in this article examines various aspects of the practice of the European Court of Human Rights in the field of the right to freedom of information, which is regarded as one of the basic human rights and freedoms enshrined in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and as a means of protecting human rights , As set forth in the Convention. It should be noted that the focus is on determining the content of freedom of information. I wish the author continued scientific research!

Пузиков Руслан Владимирович

достаточно интересная статья, дающая направления для будущих научных изысканий автора. Хотелось бы что бы автор продолжил исследование данной тематике.

Зульфугарзаде Теймур Эльдарович

Работа имеет важное значение для развития науки международного права и, в том числе, европейского права, и может заслуживать высокой позитивной оценки.
Комментарии: 6

Королев Евгений Сергеевич

Очень хорошая работа с концептуальным авторским взглядом на проблематику судебной защиты информации. С пожеланием дальнейших научных продвижений, Е.С. Королёв.

Иван Коноплицкий

Статья очень актуальная! С интересом познакомился с докладом! Удачи автору!

Коваль Любовь Николаевна

Очень интересное исследование в сфере изучения прав и свобод человека с хорошей теоретической базой и аргументацией, основанной на анализе решений Европейского суда по правам человека. Неоспоримым преимуществом работы является использование новейших источников. Также неоспорима обоснованность выводов данной работы.

Чиладзе Георгий Бидзинович

The author in this article examines various aspects of the practice of the European Court of Human Rights in the field of the right to freedom of information, which is regarded as one of the basic human rights and freedoms enshrined in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and as a means of protecting human rights , As set forth in the Convention. It should be noted that the focus is on determining the content of freedom of information. I wish the author continued scientific research!

Пузиков Руслан Владимирович

достаточно интересная статья, дающая направления для будущих научных изысканий автора. Хотелось бы что бы автор продолжил исследование данной тематике.

Зульфугарзаде Теймур Эльдарович

Работа имеет важное значение для развития науки международного права и, в том числе, европейского права, и может заслуживать высокой позитивной оценки.
Партнеры
 
 
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
image
Would you like to know all the news about GISAP project and be up to date of all news from GISAP? Register for free news right now and you will be receiving them on your e-mail right away as soon as they are published on GISAP portal.