MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-41

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-41 Kenedi v. Hungary (Application No. 31475/05) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2022)519, DH-DD(2024)175, DH-DD(2024)1203

 

Application	Case	Judgment of	Final on	Indicator for the classification
31475/05	KENEDI	26/05/2009	26/08/2009	Complex problem

Case description

This case concerns the “obstinate reluctance” of the Hungarian authorities to comply with a court order (and repeated execution orders issued by the domestic courts) granting the applicant, a historian, unrestricted access to documents which he requested in order to write a study on the Hungarian State Security Service in the 1960s.

The European Court found violations as regards the excessive length of the enforcement proceedings in respect of the domestic court’s judgment authorising the applicant’s access to the documents (Article 6 § 1), as regards the applicant's right to freedom of expression on account of the continued resistance of the authorities to grant access to the documents (Article 10), and regarding the lack of an effective remedy in this respect (Article 13 in conjunction with Article 10).

Status of execution

The case so far has been examined under the standard supervision procedure. The authorities submitted an action plan in 2012 and three action reports in May 2022, February and October 2024
(DH-DD(2022)519, DH-DD(2024)175 and DH-DD(2024)1203, respectively). A joint Rule 9.2 communication was received from the Hungarian Helsinki Committee (HHC) and the Hungarian Civil Liberties Union (HCLU) in July 2022 (DH-DD(2022)832). In May 2024, four NGOs (HCLU, HHC, K-Monitor and Transparency International Hungary) submitted a second Rule 9.2 communication (DH-DD(2024)671).

Individual measures

The just satisfaction awarded by the Court in respect of non-pecuniary damage as well as costs and expenses was duly paid. On 14 September 2009, the applicant received the requested documents.

General measures

1.     The authorities’ submissions

As regards the violation of the applicant’s right to fair trial (Article 6 § 1), the authorities argue that the general measures to address excessively lengthy enforcement proceedings are examined within the framework of the Gazsó group of cases and that an examination in the present case is thus not required.

As regards the violations of the applicant’s right to freedom of expression and the lack of an effective remedy in this respect (Articles 10, and 13 in conjunction with Article 10), the authorities submit that the Fundamental Law and the Information Act[1] guarantee the right of access to data of public interest. In case of non-compliance with domestic court judgments requiring the disclosure of certain information, enforcement may be requested in accordance with the provisions of the Judicial Enforcement Act.[2] The Data Protection Authority does not have a role in enforcement of these cases, which falls outside the scope of that authority’s ombudsman-type functions.

Hungary has ratified the Council of Europe Convention on Access to Official Documents (Tromsø Convention, CETS No. 205) and the authorities point out that the first evaluation report by the Convention’s expert group (published in July 2024) did not contain any finding that would indicate that Hungary’s enforcement system in this area was inadequate.  

Lastly, the authorities argue that even if non-enforcement of some judgments is reported, there are no systemic deficiencies. They consider that, as no other similar cases have been communicated by the Court, the case at hand is an isolated incident.

2.     Rule 9.2 communications

According to the Rule 9.2 communications received in both 2022 and 2024, it is the widespread experience of lawyers and NGOs that Hungarian authorities and public bodies frequently fail to comply with final domestic court decisions ordering data holders to make requested data available. There is no publicly available statistical data on the number of refusals or delays in the full enforcement of such decisions, but relevant examples are regularly reported.[3]

The NGOs further argue that there are systemic causes behind the non-compliance with freedom of information judgments. They underline the lack of effective and genuinely coercive enforcement tools. Enforcement in freedom of information cases is only possible through the imposition of a fine, and courts are reluctant to apply this measure. They further note the lack of criminal charges brought for non-compliance with such judgments.

3.     Recent developments

In written communications of September 2023, December 2023 and May 2024, the Department for the Execution of Judgments highlighted to the authorities that, according to the information received from civil society, non-enforcement of domestic court judgments in freedom of information cases, coupled with the lack of effective enforcement tools appears to be a reoccurring problem in Hungary. The Department again discussed the case with the authorities during its mission to Budapest in May 2024 underlining the apparent need for additional targeted general measures.

Analysis of the Secretariat

Individual measures

Considering that the just satisfaction was duly paid, and the applicant was provided with the requested documents, no further individual measures appear necessary.

General measures

1.     Excessive length of enforcement proceedings

The Committee might wish to note that the issue of excessively lengthy enforcement proceedings, as part of the legal category of non-contentious civil proceedings, is examined by the Committee of Ministers within the framework of the Gazsó group (see, most recently, Interim Resolution CM/ResDH(2024)119). It is thus not required to examine this issue in the present case.

2.     Access to information and the lack of an effective remedy in this respect

The information received from civil society and summarised above provides clear indications that the violations found in Kenedi are not of an isolated nature. The non-enforcement of final domestic court judgments by state authorities in freedom of information cases, coupled with the lack of effective legal tools to ensure the enforcement of such judgments, appears to be a reoccurring pattern that continues to date. The authorities have not provided any information or statistical data to respond to the concerns raised.

Hungary’s ratification of the Tromsø Convention is welcome. Its monitoring mechanism, which has recently completed its baseline evaluation on the implementation of the Convention in respect of Hungary, focused on the Information Act, the main legislative act regulating the right of access to official documents in Hungary. It did not examine or make findings on the implementation of the relevant legal provisions, including the enforcement of domestic court judgments granting access to information, the source of the violation found by the Court.

It is underlined that the right of access to information and, even more so, the non-enforcement of domestic court judgments by state authorities in freedom of information cases has an important rule of law context. The issue has been repeatedly raised by the EU Commission in its Rule of Law Reports, including an explicit reference to the present case in its 2024 report.[4]

Against this background, the Committee might wish to call on the authorities to adopt additional targeted general measures (i) to address the reported reoccurring reluctance of state authorities to comply with domestic courts’ orders granting access to documents held by public authorities, and (ii) to ensure that effective and genuinely coercive enforcement tools are available for the implementation of such orders.

While Hungary is, in principle, free to choose the means by which to comply with the judgment and which legal solution is most appropriate in the Hungarian legal system provided that it is capable of addressing the underlying problem, the Hungarian authorities may wish to draw inspiration from the general measures adopted by other member States addressing similar issues (such as Youth Initiative for Human Rights v. Serbia[5], and Guseva v. Bulgaria[6]).

Lastly, the problem at stake also appears to be of a complex nature, which is not only demonstrated by the fact that this case has been pending for more than 15 years without any progress in the adoption of general measures, but also by its rule of law relevance and its importance in the context of transparency of public authorities.[7] In order to avoid any further delay and to follow the issue more closely, the Committee therefore might wish to continue the examination of the case under the enhanced supervision procedure.

Financing assured: YES