NGOs’ Right to Receive and Impart Information: The European Court of Human Rights Rules Against Poland

27-03-2024

Burak Tahsin Bahce

International Justice and Human Rights Researcher,

Global Human Rights Defence

On March 21st, 2024, the European Court of Human Rights delivered its new judgment against Poland on NGOs' right to receive and impart information. The complaint has been examined under Article 10 (freedom of expression) of the Convention and was concerned an NGO`s attempts to access the diaries of meetings of two Constitutional Court judges and the court’s visitors’ logbook. The judgment is relevant to remind and strengthen civil society's public watchdog functions.

In 2017, speculations were circulating at the time in the Polish media over alleged meetings between two judges of the Polish Constitutional Court and a Government minister whose status in criminal proceedings was being decided by this court.  In this context, the applicant Sieć Obywatelska Watchdog Polska– a Poland-based NGO that aims to enhance transparency, good governance, and accountability– requested to access the diaries of meetings of these two Constitutional Court judges and the records of all people who had entered and left the court’s building since January 1st, 2017. The Constitutional Court refused the request, stating that the diaries in question were not official documents and did not constitute public information under relevant legal provisions and that it did not keep records of people entering and leaving its premises. The applicant’s subsequent appeals before the national courts were unsuccessful on the reasonings mainly that the diaries of the meetings are internal documents that could not be characterized as “public”, and that there was no obligation to keep these records under domestic law. Subsequently, the applicant NGO brought the case before the European Court of Human Rights, relying on Article 10 of the Convention. 

The Court stated that, given the political context and debate around the impartiality of the Constitutional Court, the Applicant`s requested diaries of meetings had amounted to information in the public interest. It noted that these documents were “ready and accessible”, and therefore were not difficult for the Government to gather. It further reiterated that the right to receive information is an important tool of a public watchdog’s trade. 

In this sense, it has been noted that, despite the existence of a legal basis prescribing restrictions, the justification for this interference had been limited to formal reasons concerning the “public” character of the information. The Court, thus, pointed out the lack of arguments showing that denial of access had pursued a “legitimate aim” or been “necessary in a democratic society”. For these reasons, the Court held that there had been a violation of Article 10 of the Convention. 

However, as of the accession request to the records of entries to the building, the Court noted that nor was there any obligation in domestic law for public buildings to keep such a logbook. It thus, for this aspect of the complaint, concluded that there was no evidence the records in question “ready and accessible” and there could be no interference.

The judgment revealed once more the significance of civil organizations’ public watchdog function, along with the relevance of their right to receive and impart information. 

Sources and further readings:

Constitutional Court’s refusal to grant access to judges’ diaries of meetings breached NGO’s right to receive and impart information (ECHR 066 (2024), the Registrar of the European Court of Human Rights, 21 March 2024)

Sieć Obywatelska Watchdog Polska v Poland, Application no 10103/20 (ECHR, 21 March 2024)