STEDH de 26 de mayo de 2009, caso Kenedi contra Hungría
| Autor | José Miguel Hernández López |
| Cargo del Autor | Máster Universitario en Derechos Fundamentales |
| Páginas | 529-530 |
Page 529
Ver nota 2
III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
40. The applicant also complained that the Ministry’s protracted reluctance to grant him unrestricted access to the documents in question had prevented him from publishing an objective study on the functioning of the Hungarian State Security Service.
41. The Court considers that this complaint falls to be examined under Article 10 of the Convention which provides as relevant:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security ...
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The Government conceded that there had been an interference with the applicant’s right to freedom of expression. They submitted that the retroactive classification of the documents in question pursued the legitimate aim of national security, in which field States enjoy a certain margin of appreciation. Moreover, it was the applicant’s own fault that the study in question had not been accomplished since, intransigently, he had insisted on having completely unrestricted access. The applicant contested these views.
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The Court observes that the Government have accepted that there has been an interference with the applicant’s right to freedom of expression. The Court emphasises that access to original documentary sources for legitimate historical research was an essential element of the exercise of the applicant’s right to freedom of expression (see, mutatis mutandis, Társaság a Szabadságjogokért v. Hungary, no. 37374/05, §§35 to 39, 14 April 2009).
An interference with an applicant’s rights under Article 10 §1 will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. It should therefore be determined whether the present interference was «prescribed by law», pursued one or more of the legitimate aims set out in that paragraph and was «necessary in a democratic society» in order to achieve those aims.
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The Court reiterates that the phrase «prescribed by law» in the second paragraph of Article 10 alludes to the very same concept of lawfulness as that to which the...
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