Can I see it ? No you can’t ! Refusal to grant journalist access to Hungarian Reception Centre for asylum seekers contrary to the right to freedom of expression.
ECtHR – Article 10 ECHR – Journalistic freedom of expression – Refugee crisis – Media as public ‘watchdog’ – Asylum seekers’ living conditions – Access to information
In the case Szurovecz v. Hungary the Court dealt with the issue of media access to reception facilities for asylum seekers. It held that refusing journalist access to a reception centre, which was meant to gather information on the living conditions of asylum seekers accommodated therein, was in breach of the right to freedom of expression protected under Article 10 ECHR. For the Court, journalistic research and newsgathering represent an essential component of investigative journalism and thus an inherent and protected part of press freedom. The “watchdog” role of the media is crucial and assumes even more importance in matters of great public interest, such as the treatment of asylum seekers arrived and hosted in Europe.
Francesco Luigi Gatta
A. Facts and Ruling
1. Main circumstances of the case
The case concerns Mr Szurovecz, Hungarian journalist working for an internet news portal.
Wishing to conduct a journalistic inquiry into the living conditions of asylum seekers hosted in Hungarian reception centres, in May 2015 he requested the Office of Immigration and Nationality (“OIN”) the permission to have access to the Reception Centre located in Debrecen, Hungary’s second largest city. His request was dismissed on ground of the interference with privacy and personality rights of the asylum seekers accommodated in the centre.
In September 2015, the journalist lodged a new request, in which he explained his intention to enter the Debrecen Reception Centre so as to conduct interviews, take pictures and write a report on the living conditions of asylum seekers hosted there. He further clarified that photographs would only be taken with the permission of the persons concerned and that, if need be, he would obtain a written authorisation from them each time.
Szurovecz also elucidated the reasons for choosing that specific centre: since it had become a major housing location for asylum seekers arrived in Hungary during the peak of the so-called “refugee crisis” in 2015, gathering direct information on the reception and living conditions therein was essential to provide an objective report on that sensitive issue. As a matter of fact, not long before the applicant’s first request to access the centre, the Commissioner for Fundamental Rights, in accordance with the UN Convention against torture, had issued a report on the Debrecen Reception Centre, denouncing its living conditions, which amounted to inhuman and degrading treatment. Finally, the journalist noted that that specific reception centre was persistently presented in the State-owned media as part of the Hungarian Government’s anti-immigration campaign.
His request, however, was once again rejected. The OIN observed that there was already constant media coverage of asylum seekers-related matters and a visit to that reception centre, with photographs and interviews of the aliens accommodated therein, would have interfered with the respect for their private lives. Moreover, as many of the people accommodated in the centre had fled from persecution, revealing information about them in the press would have entailed a danger for their security. It was the domestic authorities’ responsibility to protect the privacy and the security of the asylum seekers and their families, the OIN concluded.
2. Application lodged with the Court of Strasbourg and its decision
Following the refusal of his second request to access the Debrecen Reception Centre, the applicant sought its judicial review before the Budapest Administrative and Labour Court. His action, however, was declared inadmissible on the ground that the OIN’s refusal to grant access to the Reception Centre could not be considered as an administrative decision, thus it was not subject to judicial review.
The journalist then applied to the ECtHR, invoking a violation of his rights to freedom of expression (Article 10 ECHR) and to an effective remedy (Article 13 ECHR). A coalition of eight associations intervened in the case, bringing arguments in support of the applicant.
The Court unanimously found a violation of Article 10 and, in the light of such finding, considered not necessary to examine the complaint under Article 13 of the Convention.
1. The scope of the right to impart information under Article 10 ECHR
The Hungarian Government preliminary objected that the journalist’s complaint had to be considered inadmissible ratione materiae and ratione personae.
From the first point of view, the applicant’s claim to a right of access to information would not fall within the scope of Article 10 ECHR. For the Government, indeed, such provision would only cover a right to receive information willingly imparted by others, and not a right to obtain information. It would entail, in other words, a right to information understood only in passive – and not active – terms, with the consequence that the State would only have a negative obligation not to unjustifiably impede access to publicly available information and not to punish anyone for receiving information from public authorities.
From the second point of view, the Government contested the applicant’s victim status, arguing that the refusal to have access to the Debrecen Reception Centre had not hindered his freedom of expression entirely and in absolute terms. A proof of that lies in the fact that he had published an article on the situation of the asylum seekers hosted in an another reception centre in Hungary (in the city of Körmend), the Government concluded.
The Court disregarded these argumentations. Relying on its previous case law, it reiterated that the act of gathering information is « an essential preparatory step in journalism », which is thus an inherent and protected part of press freedom covered by Article 10 of the Convention (Dammann v. Switzerland, 2006, §52). Moreover, the Court stressed the importance of the direct journalistic research, understood as the capacity to actively seek and obtain information first hand, so as to verify the accuracy and reliability of the information prior to publication (Schweizerische Radio- und Fernsehgesellschaft SRG v. Switzerland, 2012, §41, cited mutatis mutandis, concerning the refusal to grant a radio and TV company permission to film and interview a detainee inside a prison).
2. The importance of the direct contact with the source of information
Once dismissed the objection about the inadmissibility of the applicant’s complaint, the Court focused on the refused access to the Reception Centre in the specific case.
The Hungarian Government argued that a violation of Article 10 ECHR is correctly identifiable only in cases of denied access to a particular, specific piece of information, which would effectively and exclusively be needed to express an opinion. In other terms, the right to impart information would be infringed only in case of absence of alternative means of information.
For the Government, that is not exactly the case of Szurovecz: the applicant did not necessarily need access to the specific Reception Centre of Debrecen to express his opinion on the issue of asylum seekers’ living conditions, since he had access to other sources of information, such as those provided by the NGOs working in that field. Furthermore, he could have interviewed asylum seekers elsewhere, outside that specific centre. The photographs, similarly, could have been taken by others and then obtained by the journalist.
The ECtHR recognised the existence of alternative sources of information in the specific case. However, these would have given the applicant only an indirect knowledge of the living conditions in the Reception Centre, based on second-hand information gathered for other purposes. The Court, indeed, highlighted the clear diversity of roles and objectives: while NGOs and civil society organisations mainly act to provide humanitarian and/or legal aid, journalists and the press pursue the aim of discovering facts and reporting newsworthy information, so as to form opinions and ideas.
To each their own: it is for the investigative journalism to dig for information, gather news, observe directly and report on the basis of professional standards and an “investigative mindset”. For the Court, thus, « the existence of other alternatives to direct newsgathering within the Reception Centre did not extinguish the applicant’s interest in having face-to-face discussions on and gaining first-hand impressions of living conditions there » (§74).
3. The « great public significance » of the issue of asylum seekers
Although admitting the existence of an interference with the applicant’s right (the refusal to grant access to the Reception Centre), the Hungarian Government contended that it was fully compatible with the Convention, having a legal basis, a legitimate aim and being proportionate. As for the latter aspect, in particular, the Government pointed out the need to strike a fair balance between competing interests, and to prioritize the protection of the privacy and safety of the asylum seekers hosted in the centre over the applicant’s right to receive information and the public interest to be informed.
The ECtHR, having acknowledged the existence of an interference, and following its “classical” three-step test to ascertain its compatibility with the Convention (lawfulness – legitimate aim – proportionality), accepted that the refusal to grant access to the Debrecen Reception Centre was adopted in accordance with the law and for the purpose of a legitimate aim. It did not find, however, that such measure was proportionate and “necessary in a democratic society”, as prescribed by Article 10 ECHR.
First and in general, the Judges noted that the events occurred in 2015, that is to say, right in the middle of the “refugee crisis”, when a considerable number of migrants entered Hungary. Second, with specific regard to the Debrecen Reception Centre, the structure had been matter of particular attention by the Commissioner for Fundamental Rights, who had clearly denounced the living conditions therein.
In the light of such circumstances, the Court observed that issues such as the reception conditions in a State-run centre for migrants, whether the State was respecting international obligations towards asylum seekers accommodated there and whether they were in the position of full enjoyment of their fundamental rights, had to be considered as matters « undisputedly newsworthy and of great public significance » (§61).
These observations are coupled with those related to the crucial role of the media whose task is that of public “watchdog” in today’s democratic societies. For the Court, indeed, the public interest is particularly relevant when vulnerable people are at stake and are handled by domestic authorities. In such circumstances, and given the role of journalists, « their presence is a guarantee that the authorities can be held to account for their conduct » (§61).
This is why it is essential to enable journalists to conduct research, investigate and directly gather information, with the consequence that denying physical access to locations where events of public interest take place represents an obstacle that needs to be properly and convincingly justified. Accordingly, although the Court agreed that the reasons adduced for refusing access the Centre – protecting safety and private lives of the asylum seekers hosted therein – were undoubtedly relevant, it did not consider them as sufficient to refuse the applicant’s request of access.
In particular, national authorities failed to indicate how and in which terms, in practice, the safety of the asylum seekers would have been jeopardised by the journalistic research conducted by the applicant. Even more, considering that he had explained that he would only take photos and conduct interviews of individuals who had previously given their consent, also, if needed, in writing.
Ultimately, for the Court, the decision to refuse access to the Centre was reached without a proper and sensible consideration of both the interest of the journalist to inform and that of the public to receive information on a matter of great public interest.
4. A potential, relevant precedent
The judgment in Szurovecz comes in a time of a severe worsening environment for the media across Europe. As it has been highlighted by the Council of Europe in the 2019 report with the evocative title “Democracy at risk: threats and attacks against media freedom in Europe”, press freedom is increasingly facing obstruction, hostility, censorship and sometimes even violence. The report focuses its attention also and especially on Hungary, depicting a situation of quasi-monopoly on information and opinion by the Government, reflected into a strongly centralised and pro-governmental structure and production of State and public news media.
The ECtHR itself has already found various violations of Article 10 ECHR with respect to Hungary’s obstructionism to access information sought by journalists or NGOs (e.g. Társaság a Szabadságjogokért, 2009, App. No. 37374/05; Kenedi, 2009, App. No. 31475/05; Magyar Helsinki Bizottság, [Grand Chamber], 2016, App. No. 18030/11).
Concerns about the journalistic freedom of expression in Hungary have been expressed also within the European Union. In its 2018 Resolution on the situation in Hungary, the European Parliament, for the first time in the history of the EU, voted in favour of launching the procedure under Article 7 TEU against Hungary for the existence of a clear risk of a serious breach of the founding values of the Union. Among the reasons that induced such unprecedented action there are the concerns relating to media and journalism and their freedom of expression.
Ultimately, in a period of hard times for journalists and press freedom, the Court’s judgment is timely and needed, as it clearly affirms that journalistic physical presence at State-controlled locations is crucial for an objective, reliable and genuine information, since the media, acting as a ‘watchdog’, can keep an eye on national authorities’ conduct.
Since obstructive attitudes towards investigative journalism occur every day throughout Europe, one hopes that this judgment would represent a relevant precedent that will allow a careful and strict scrutiny of any restrictions on the media’s access to locations where matters of public interest take place, including, in particular, migration reception centres, hotspots and other aliens’ detention facilities.
C. Suggested reading
To read the case : ECtHR, Judgment of 8 October 2019, Szurovecz v. Hungary, App. no. 15428/16
Case Law :
- ECtHR, Judgment of 21 June 2012, Schweizerische Radio- und Fernsehgesellschaft SRG v. Switzerland, App. no. 34124/06
- ECtHR (Grand Chamber), Judgment of 8 November 2016, Magyar Helsinki Bizottság v. Hungary, App. No. 18030/11
- ECtHR, Judgment of 14 April 2019, Társaság a Szabadságjogokért v. Hungary, App. no. 37374/05
- ECtHR, Judgment of 25 April 2006, Dammann v. Switzerland, App. No. 77551/01
- D. Voorhoof and R. O’ Fathaigh, Denying journalist access to asylum-seeker ‘reception centre’ in Hungary violated Article 10 ECHR, Strasbourg Observer, 4 November 2019
Other materials :
- Commissioner for Fundamental Rights as OPCAT national preventive mechanism, Report in case AJB-366/2015, Visit Site: Debrecen Guarded Refugee Reception Centre, April 2015
- Council of Europe, Democracy at risk: threats and attacks against media freedom in Europe, Annual Report by the Partner organisations to the Council of Europe Platform to promote the protection of journalism and safety of journalism, Council of Europe, February 2019
- European Parliament, Resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded, (2017/2131(INL))
To cite this contribution : F.L. Gatta, “Can I see it ? No you can’t ! Refusal to grant journalist access to Hungarian Reception Centre for asylum seekers contrary to the right to freedom of expression”, Cahiers de l’EDEM, November 2019
 Media Legal Defence Initiative, Index on Censorship, The Reporters Committee for Freedom of the Press, the European Publishers Council, PEN International, the Hungarian Helsinki Committee, the Dutch Association of Journalists, the European Centre for Press and Media Freedom.
Photo de Nicoleon — Travail personnel, CC BY-SA 4.0