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Is Access to Legal Information a Human Right? A Short Reflection on the Application of Foreign Law

While doing some research on the topic of the application of foreign law (frustrating: nothing has happened at the international level since the issue was given up at the Hague some years ago), I have come across some publications on related topics which I believe deserve attention. One of them is whether there is a human right of public access to legal information; scholars in favor even claim a UN Convention proclaiming it should be adopted .

Thanks to these readings I remembered a case of the European Court of Human Rights which, except I am mistaken, is largely unknown. The judgement, of 6 April 2004, corresponds to application no. 75116/01, Karalyos and Huber v. Hungary and Greece. Hungary was found to have failed to comply with Article 6 ECHR in a case for the compensation of damages: the contents of the foreign applicable law had not been established nine years after the claim was lodged; the proceedings were still pending at an early stage before the Hungarian courts. What is more relevant, the local courts had not taken the approppriate steps to ascertain the contents of the foreign law, nor applied national law instead – a possibility foreseen in section 5 § 1 of Hungarian Law-Decree no. 13 of 1979 on International Private Law.

I suggest you have a look, also on the lengh of proceedings where foreign law is applicable, to  Bekerman v. Liechtenstein, on application no. 34459/10  (although less representative than Karalyos).

I would disclose nothing new by asserting the potential of Article 6 ECtHR in the area. However, to infer a fundamental right of access to legal materials from the case law mentioned above would, to my mind, go too far. On the contrary, some consequences could definitly be drawn regarding the application of foreign law – and not only in Hungary. I am not aware it has happened. It would be great to have feedback, if someone knows better.

— Some readings on access to legal information as a right: Ginevra Peruginelli, ‘Law belongs to the people: access to law and justice’, [2016] 16(2) Legal Information Management 107 – quite short; Leesi Ebenezer Mitee, The Right of Public Access to Legal Information: A Proposal for Its Universal Recognition as a Human Right’ (2017) 18 German LJ 1429 – almost 70 pages.

Senior research fellow MPI Luxembourg (on leave) Legal secretary at the CJEU Full Professor PIL, University of La Laguna (Spain)

3 comments on “Is Access to Legal Information a Human Right? A Short Reflection on the Application of Foreign Law

  1. Dear Marta,

    Thanks for this interesting post. Let us admit that such a right would exist. What would its content be? It could not be a right to a particular outcome: sometimes, foreign law simply cannot be ascertained, and its content is often subject to debate. So the right could only amount to a right to certain evidentiary measures. Which one? Appointment of a judicial expert?

    G.

  2. Marta Requejo Isidro

    Dear Gilles,

    Thanks for the comment. Indeed, in case the right existed and was meant to embrace also foreign law, it would not be possible to understand it as a right to a particular outcome. To my mind, it would entail that no action could be dismissed for lack or insuficient evidence regarding the contents of foreign law; and that the authority – judge or whatever- must have an active role, either from the outset, or a least if the interested party is unable to proof the contents of the applicable law (applying a reasonable diligence). I would not say this entails necessarily a judicial appointment of an expert, but it could be so, depending on the circumstances.

  3. Tamás Szabados

    Dear Marta (if I may),

    Thank you for sharing this interesting post and the reference to the readings. I agree that currently it would go too far to deduce a right of access to legal information, even less a right of access to a foreign law, alone from the Karalyos judgment. What the European Court of Human Rights recognised in light of Article 6 ECHR, is that proceedings must be finished in reasonable time. The Court did not mandate that the content of Greek law should have been established in due time, but that the case should have been decided within a reasonable time. As you also mentioned, this could have been achieved even by applying Hungarian law instead of Greek law in accordance with the Hungarian Decree-Law. Although it seemed that both Hungarian and Greek authorities committed mistakes in applying the London Convention on Information on Foreign Law and the Greek-Hungarian bilateral Treaty on Legal Assistance, the Court refrained from addressing any potential breach of the London Convention, and limited itself to establish a violation of Article 6 ECHR.

    It is interesting to note that in the course of the recent recodification of Hungarian private international law, Hungarian legislature essentially codified the content of the Karalyos judgment and in particular the reasonable time requirement. Article 8(3) of the new Hungarian PIL Act provides now as follows:
    If the content of foreign law cannot be established within reasonable time, Hungarian law shall apply. If the facts concerned cannot be decided based on the rules of Hungarian law, the foreign law which is closest to the applicable law shall apply.

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