Last Updated on November 21, 2019 by LawEuro
Information Note on the Court’s case-law 233
October 2019
Szurovecz v. Hungary – 15428/16
Judgment 8.10.2019 [Section IV]
Article 10
Article 10-1
Freedom of expression
Freedom to impart information
Journalist denied access to conduct interviews about living conditions in reception centre for asylum-seekers: violation
Facts – The applicant, a journalist, was denied access by the Office of Immigration and Nationality (OIN) to a reception centre accommodating asylum-seekers. The applicant wanted to conduct interviews for an article on the subject of living conditions inside the reception centre.
Law – The refusal to authorise the applicant to conduct interviews and take photos inside the reception centre had prevented him from gathering information first hand and from verifying information from other sources about the conditions of detention. The refusal constituted an interference with the exercise of his right to freedom of expression in that it had hindered journalistic research. The interference had been “prescribed by law” and had pursued the legitimate aim of protecting the private lives of asylum-seekers and residents of a camp.
At the material time the media had widely reported on the “refugee crisis” when a large number of asylum-seekers were entering the territory of Hungary. In particular, following an investigation the Commissioner for Fundamental Rights had found that the living conditions in the reception centre amounted to inhuman and degrading treatment.
How residents are accommodated in State-run reception centres, whether the State fulfils its international obligations towards asylum-seekers and whether this vulnerable group have the ability to fully enjoy their human rights had undisputedly been issues that were newsworthy and of great public significance. Therefore the article which the applicant had intended to prepare concerned a matter of public interest. Nevertheless the conclusion of the OIN in refusing the applicant access to the reception centre had been reached without any sensible consideration of his interest as a journalist in conducting his research or of the interest of the public in receiving information on a matter of public interest.
In the absence of a European consensus on how the rights of asylum-seekers were to be best ensured in reception centres, the Court was prepared to accept a somewhat wider margin of appreciation than otherwise accorded with respect to restrictions on publications raising a matter of major public concern. Moreover most member States required that some limitations be placed on journalists visiting facilities which accommodated asylum-seekers as regards their time, place and manner for institutional considerations, as well as for the protection of the rights of the residents.
However, the domestic authorities had not given sufficient consideration to whether the refusal of permission to access and conduct journalistic research inside the reception centre, for reasons concerning the private life and security of asylum-seekers, had been effectively necessary in practice.
The applicant had intended to gather materials concerning the living conditions and treatment of asylum-seekers by the Hungarian authorities. Moreover, he would have taken photos of only those individuals who had given their prior consent and, if needed, he would have also obtained written authorisation from them. In such conditions the reliance on the potential effects of research on the private lives of the people accommodated in the reception centre, although relevant, had not been sufficient to justify the interference with the applicant’s freedom of expression.
Furthermore there had been no indication in what respect the safety of asylum-seekers would have been jeopardised in practice by the proposed research, especially if it had taken place only with the consent of the individuals involved.
Likewise, information obtained outside the reception centre might not have had, in the eyes of the public, the same value and reliability as first-hand data that the applicant could have obtained by accessing the reception centre in person; and any information available through indirect sources might have been gathered for purposes other than that of the applicant, without his having the possibility to verify their authenticity. The existence of other alternatives to direct newsgathering within the reception centre had not extinguished the applicant’s interest in having face-to-face discussions on, and gaining first-hand impressions of, living conditions there. In those circumstances the availability of other forms and tools of research had not been sufficient reasons to justify the interference complained of or to remedy the prejudice caused by the refusal of authorisation to enter the reception centre.
Lastly, essentially for the reason that the decision of the OIN had not been an administrative one, there had been no legal possibility open to the applicant to argue for the necessity of his access to the reception centre in order to exercise his right to impart information; and the domestic courts had been prevented from performing a proper proportionality analysis.
The domestic authorities were better placed than the Court was to say whether, and to what extent, access to the reception centre was compatible with the authorities’ obligation to protect the rights of asylum-seekers. However, in view of the importance of the media in a democratic society and of reporting on matters of considerable public interest, the need for restrictions on freedom of expression had to be convincingly established. Therefore, considering the rather summary reasoning put forward by the OIN and the absence in its decision of any real balancing of the interests in issue, the domestic authorities had failed to demonstrate convincingly that the refusal of permission to enter and conduct research in the reception centre, which had been an absolute refusal, had been proportionate to the aims pursued and thus had met a “pressing social need”.
Conclusion: violation (unanimously).
Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.
(See also Schweizerische Radio- und Fernsehgesellschaft SRG v. Switzerland, 34124/06, 21 June 2012, Information Note 153)
Leave a Reply