Hungarian Civil Liberties Union tasz.hu

1. Hungarian Civil Liberties Unionwww.tasz.hu Ádám Földes The Constitutional Court Case

2. Chronology • 14th March 2004 petition of the MP at the Const. Court • 14th September asking for the document • 12th October refusal • 7th November HCLU’s petition at the Metropolitan Court • 13th December Decision of the CC on the petition • 24th January 2005 Decision of the Metropolitan Court • 17th February Appeal to the Metropolitan Appellate Court • 5th May Decision of the Metropolitan App. Court • 1st June Amendment of the DP & FOI Act • August Extraordinary review at the Highest Court • 3rd October Decision of the Highest Court • November HCLU’s case in Strasbourg

3. First Instance • an MP and some of his friends has sent a petition to the CC • MP made public that he has written a petition • HCLU asked for the release of the public data • the CC refused as „according to the common practice of the CC without the clear intention of the petitioner the petition is not to be sent” DP & FOI Act: „The applicant shall be notified in writing, within 8 days, of the refusal of his application and of the reasons therefor.” „The burden of proof that the refusal was lawful and well-founded shall lie with the data processing organ.”

4. HCLU as plaintiff • the petition of the MP aims to challenge several rules of the Criminal Code which has effect on everybody • the MP is holding a public office, his actions should be transparent • the CC is a public authority which falls within the rule of the DP& FOI Act • the communication (petition) between two actors of the state should be accessible by anyone • the CC failed to call on any legal ground or legal Act for refusing to disclose the document

5. Constitutional Court as defendant • the CC does not fall under the rule of the DP& FOI Act • the procedures of the CC are not procedures of a state actor which could be raise any FOI issue • the petition is a data prepared in connection with decision making • the CC is not a data controller • the petition consists the personal views of the petitioner therefore it is personal data

6. First Instance Decision • the CC falls under the rule of the DP& FOI Act • the procedures of the CC are procedures of a state actor which could be raise any FOI issue • the CC is a data controller • but, the petition is not a data • there is no definition of data in the DP& FOI Act and the regulations regarding „access to documents” should not be understood as access to data of public interest • The first definition od data is to be found in the Dictionary of the Hungarian Language - „data: fact, detail helping to know or describe somebody or something” • It has no legal importance if the petitioner is an MP acting for the public, as the document is not a data

7. Second Instance • the petition is a document comprising data, information, opinions: the definition of personal data and data of public interest is enough instead of a general data definition • the petition consists the views of the petitioner thus it consists personal data which can not be disclosed without the permission of the MP

8. Extraordinary review In the HCLU’s petition there was a secondary petition: if the document consists any personal data, then disclose the document without these data. None of the courts have examined this part.

9. Finale Interview with the MP Strasbourg

10. Hungarian Civil Liberties Unionwww.tasz.hu Thank you!