Congratulations. This is great news.
I have send the
*Claude Reyes and others vs. Chile* decision and the
*(...) AKUMB v. ARMENIA*
ECHR Application no. 11721/04: http://wkeim.bplaced.net/files/echr-11721-04.htm to the
Parliamentary Assembly Council of
Europe,
International Helsinki Federation for Human
Rights,
OSCE and hope for further progress.
Regards
Walter Keim
8 German states violate the human right og freedom of information:
http://wkeim.bplaced.net/files/ifg-result.htm
Promotion of Freedom of Information for Germany:
http://wkeim.bplaced.net/files/coe-031128.htm,
http://wkeim.bplaced.net/files/osce-050106.htm,
http://wkeim.bplaced.net/files/ihf-060824.htm,
http://wkeim.bplaced.net/files/pace-060213.html,
http://wkeim.bplaced.net/files/echr-complaint.htm
Helen Darbishire wrote:
Dear Friends of the Right to Know!
Great news: the Inter-American Court of Human Rights has ruled that
there is a general right of access to information held by government.
This is the first such ruling from an international tribunal. It's a
decision to celebrate!
*The Inter-American Court's decision in the case of Claude Reyes and
others vs. Chile was released today and finds Chile in violation of
the right of access to state-held information *(The case dates from a
request made in 1998 by three environmental activists about a
controversial logging project; no information was provided nor a
reasoned refusal. For a reminder/summary of the facts of the case, see
www.access-info.org * *
*The decision also makes clear that to give full effect to this right,
States must adopt legal and other provisions that ensure effective
exercise of the right to information as well as define limited
exemptions to be applied in ways that will cause minimum restriction
of the right. *
*The Court further requires the Chilean state to train public
officials on the right to information and the international standards
for exemptions. *
A copy of the Spanish version of the decision can be found at:
http://www.corteidh.or.cr/casos.cfm?idCaso=245
__
__
_Here are some key points of the decision (my rapid translations --
thanks also to Darian Pavli of the Justice Initaitive for picking out
and organizing some key points): _
__
*Facts*
- The Court found that the Chilean authorities failed to provide
access to four of the seven items of information requested. The
requested info was of clear public interest. [paras. 72-73]
*Violation of Article 13 Right to Information *
- The Court found unanimously a violation of Article 13 of the
Convention (freedom of thought and expression).
- The Court concluded that /Article 13 contains a right of general
access/ to government-held information: “With respect to the facts of
the present case, the Court concludes that article 13 of the
Convention, which specifically establishes the rights to ‘seek’ and
‘receive’ ‘information’, protects the right of all persons to request
access to information held by the State, with the exceptions permitted
by the restrictions regime of the Convention. As a result, this
article supports the right of persons to receive such information and
the positive obligation on the State to supply it, so that the person
may have access to the information or receive a reasoned response
when, for ground permitted by the Convention, the State may limit
access to it in the specific case. The said information should be
provided without a need to demonstrate a direct interest in obtaining
it, or a personal interest, except in cases where there applies a
legitimate restriction. Disclosure to one person in turn permits it
[the information] to circulate in society in such a way that it can be
known, obtained, and evaluated. In this way, the right to freedom of
thought and of expression contemplates protection of the right of
access to information under State control….” [para. 77]
- The court notes the connection between freedom of expression and
information and rights of democratic participation, concluding that
“access to information held by the State .. permits participation in
public governance.” [paras. 84-86]
- The Court noted a list of precedents for concluding that there is a
right of access to information, including
· declarations by the Organization of American States over the past
few years, most recently on 3 June 2006 in which the OAS called on
states to respect access to public information and to promote
legislative provisions to guarantee such access;
· UN Convention Against Corruption, Rio Declaration on the
Environment, and the Aarhus Convention;
· Numerous Council of Europe declarations, ranging from
recommendations of the Parliamentary Assembly in 1970, to the
recommendations of the Committee of Ministers of 1982, 1998 and the
2002 Recommendation on the right of access to Official Information,
which establishes at Principle IV that exceptions should be
established by law, necessary in a democratic society and
proportionate to a legitimate aim.
*/Principles Governing Restrictions on Access/*
- The Court notes that exceptions should be allowed but that they
should be limited to those permitted by the Convention (respect for
the rights and reputations of others, protection of national security,
public order, health or public morals) and stresses that these should
always be proportionate and minimize restriction of the right being
protected. [paras. 88-91]
- The Court ruled that “in a democratic society it is indispensable
that state authorities are governed by the principle of /maximum
disclosure/, which establishes the presumption that all information
should be accessible, subject to a restricted system of exceptions.”
[para. 92]
- The /burden/ is upon the State “to prove that in setting
restrictions on access to information in its possession it complied
with the restrictions” laid out by the Court. [para. 94]
*/Principles Applied to the Present Case/*
- At the relevant time there was /no legal basis/ in Chile for denying
access to the information. [para. 94]
- By /failing to justify their refusal/ to provide access, the Chilean
authorities violated the principles that require restrictions on
rights to pursue legitimate goals and be necessary in a democratic
society. [para. 95]
- The failure to adopt precise criteria on exemptions in the domestic
legal system “creates ample room for discretional and arbitrary state
actions in classifying information as secret, reserved or
confidential.” [para 98]
*Obligation to Take Measures Necessary to Guarantee the Right to
Information (Art. 2)*
- The Court also ruled that States should adopt means of guaranteeing
the rights protected by the Convention – in other words, an access to
information law or similar -- and should eradicate norms and practices
that violate the Convention rights. The Court notes that “in
particular, this means a legal framework that regulates restrictions
on access to information held by the Sate that should comply with the
Convention standards and may only impose restrictions /for reasons
permitted by the Convention/”. [para. 101—aptly numbered!]
*Violations of Fair Trial Rights (Art. 8.1)*
- The Court found that Chile had also violated the applicants’ right
to a fair trial in the context of the administrative and judicial
proceedings brought by the applicants to challenge the denial of
information [see para. 174]**
*What Chile must do*:
- The Court ordered Chile to /provide the information/ requested about
the Rio Condor project or adopt a reasoned decision as to why it is
not providing it. [paras. 157-58]
- The Court ordered Chile to publish key paragraphs of the sentence in
the State Journal, and – importantly – to adopt the necessary measures
to guarantee the right of access to State-held information in the
future. These should include measures “to guarantee the effectiveness
of /an adequate administrative process/ for dealing with requests for
information, which sets deadlines for providing the information and is
handled by properly trained officials. [para. 163]
- In addition, the Court requires the state to /train public
officials/ on the right of access to information:*_ _*
“In this case the administrative authority charged with responding to
the request for information … showed an attitude that threatened the
right of access to State-held information. In this respect, this
Tribunal notes with concern that various elements of proof presented
in this case coincide in showing that public officials do not respond
effectively to information requests.” [para. 164]
- “The Court considers that the State [Chile] should, in a reasonable
time, conduct training for the bodies, authorities, public agents
charged with receiving requests for information on the norms that
regulate this right, including on the Convention standards that they
should respect with regard to restrictions on access to such
information.” [para. 165]
______________________________
Helen Darbishire
Executive Director
Access Info Europe
calle Principe de Anglona, 5, 2º, centro
28005 Madrid, Spain
mobile: + 34 (...)
e-mail: (..)
web: www.access-info.org