Article 10 of the European Convention on Human Rights (“the ECHR”) does confer a right of access to information held by public bodies.

So, at least, says the Second Section of the European Court of Human Rights at §§20 and 24 of its judgment in Youth Initiative for Human Rights v Serbia, Application no 48135, 25 June 2013. The Second Section cites the now well-known chamber level judgments of Társaság and Kenedi for this proposition, at the same time entirely ducking the task of explaining or justifying why or how its decision to create this new ‘human right’ is consistent or reconcilable with the Grand Chamber’s prior judgments in Leander and Roche (both of which rejected the submission that Article 10 conferred any such right).

As avid readers of this blog will be aware, this issue has already been the subject of extensive domestic litigation in the UK. While Lord Brown may have thought he gave the argument that Article 10 confers a right of access to documents its quietus in Sugar v BBC, the willingness of the Second Section to flout two Grand Chamber decisions (and, indeed, not even to cite them when doing so) means that the forthcoming Supreme Court hearing in Kennedy v Charity Commrs (in which a smorgasbord of 11KBW members will be appearing) should make for interesting viewing.

One might have thought (and even hoped) that the Strasbourg Court would have learned some lessons about the dangers of merrily ‘discovering’ new ‘human rights’ while ignoring, and refusing to grapple with, inconvenient prior Grand Chamber decisions from the MT and Greens v UK,  Frodl v Austria, Hirst v UK debacle. Apparently not.

The judgment also includes a rather trenchant joint concurring opinion from Judges Sajo and Vucinic, in which those legal luminaries effectively say that they think the Grand Chamber decision in Leander is old hat, at least in so far as it concerns this point.

This view, so it is said by the jointly concurring judges, is supported by the fact that another Grand Chamber judgment (which itself did not have much to say about any of these points), Gillberg v Sweden, did not quote the passage from Leander where the Grand Chamber rejected the submission that Article 10 gives a right to access information. Suffice to say that the jointly concurring judges’ further reasoning in support of their position is of a similar calibre.

What is clear from the first sentence of the joint concurring opinion is that Judges Sajo and Vucinic both think that they are justified in inventing this new ‘human right’, and in the process setting the Strasbourg Court up as the pan-European final appellate court for freedom of information matters, by the need to impose greater transparency on former totalitarian ECHR signatory States.

Joe Barrett