FIFTH SECTION

DECISION

Application no 60369/11 DAS UNIVERSELLE LEBEN ALLER KULTUREN WELTWEIT E.V. against Germany

The European Court of Human Rights (Fifth Section), sitting on 17 November 2015 as a Chamber composed of:

Ganna Yudkivska, President, Angelika Nußberger, Khanlar Hajiyev, André Potocki, Yonko Grozev, Síofra O ’ Leary, Mārtiņš Mits, judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 13 September 2011 ,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Das Universelle Leben Aller Kulturen Weltweit e.V., is a German association, which has its seat in Marktheidenfeld. It was represented before the Court by Mr C. Sailer, a lawyer practising in Marktheidenfeld.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant association, may be summarised as follows.

3 . The applicant is a registered association claiming to represent the interests of the religious community “ Universelles Leben ” that is gathering people in a “new, true Christian faith conveyed by a new prophet sent by God”. It did not provide further information on its members and specific activities.

4 . The Federal Ministry for Family, Senior, Women and Youth affairs (hereinafter: “the Federal Ministry”) ordered the Federal Administrative Agency ( Bundesverwaltungsamt – hereinafter “the Federal Agency”) to maintain an information division regarding “so-called youth sects and psycho-groups” and, within its activities, to gather information on the applicant association.

5 . Rely ing on the Federal Freedom of Information Act (see paragraph 11 below), the applicant association requested access to files containing all the information gathered by the Federal Agency in this regard. On 30 March 2007 the Federal Agency refused the applicant ’ s request.

6 . Subsequently, the applicant association filed an action against the refusal with the Cologne Administrative Court. During the court proceedings, the court ordered the Federal Agency to list and describe the documents in its possession so that the applicant association could specify its claim, and a comprehensive assessment of the lawfulness of the refusal could be made.

7 . The Federal Ministry, which had initially requested the collection of information and was therefore an interested third party in the proceedings, declared an exemption of disclosure ( Sperrerklärung ), by virtue of Article 99 (1) of the Code of Administrative Court Procedure (see paragraph 12 below). It held that there was no duty to produce the documents or even to reveal their existence and contents in the court proceedings and to the applicant association.

8 . Subsequently the matter was transferred to the Federal Administrative Court which, according to Article 99 (2) of the Code of Administrative Court Procedure, was the competent authority to assess the lawfulness of the exemption of disclosure.

9 . On 25 June 2010 the Federal Administrative Court viewed the documents in question and decided on the legality of the exemption of disclosure. In a comprehensive introduction the court outlined its own standards of examination and explained that Article 99 (2) of the Code of Administrative Court Procedure would require an assessment if the provided reasons for confidentiality would be firstly relevant to the specific case and secondly sufficient to justify an exemption of disclosure. Applying these standards, the Federal Administrative Court found that a general, unsubstantiated reference to the confidentiality of internal working methods of the Federal Agency could not provide a sufficient reason. However, the court also established that the Federal Agency was, as a State authority, bound by the obligations provided in the German Basic Law ( Grundgesetz ). Consequently, as argued by the Federal Ministry, the right to privacy of third persons, protected by the German Basic Law, and in particular the protection of informants could generally justify an exemption of disclosure. Turning to the facts of the case, the court ruled that for some parts, consisting of public information, such as newspaper articles, internet printouts, court judgments or publications of the association itself, no reason for confidentiality could be adduced. Therefore, the refusal to produce these documents was held to be unlawful. However, the court accepted the refusal of disclosure regarding other documents concerning the applicant association. These concerned reports from former members of the applicant association who had left the community. Those persons had revealed sensitive personal information about their private and religious life to the agency. The Federal Administrative Court held that the refusal to produce these documents was justified in order to protect the anonymity of the sources of information and the private information of third parties. It further argued that there was no other possibility than non-disclosure, since the small number of possible sources would allow identification even if the documents were edited. Furthermore, it found that the statements did not include any defaming or libelous remarks.

10 . On 22 August 2011 the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint against the part of that decision which upheld the refusal, without providing reasons (no. 1 BvR 2016/10).

B. Relevant domestic law

1. Freedom of Information Act

11 . The relevant provisions of the Federal Act Governing Access to Information held by the Federal Government (Freedom of Information Act ‑ Informationsfreiheitsgesetz ) read as follows:

“Section 1 Underlying principles

(1) Everyone is entitled to official information from the authorities of the Federal Government in accordance with the provisions of this Act. This Act shall apply to other Federal bodies and institutions insofar as they discharge administrative tasks under public law. For the purposes of these provisions, a natural or legal person shall be treated as equivalent to an authority where an authority avails itself of such a person in discharging its duties under public law.

(2) The authority may furnish information, grant access to files or provide information in any other manner. Where an applicant requests a certain form of access to information, the information may only be provided by other means for good cause. In particular, substantially higher administrative expenditure shall constitute good cause.

(3) Provisions in other legislation on access to official information shall take precedence, with the exception of Section 29 of the Administrative Procedure Act and Section 25 of Book Ten of the Social Code.”

2. Code of Administrative Court Procedure

12 . Article 99 of the Code of Administrative Court Procedure ( Verwaltungsgerichtsordnung ) reads , insofar as relevant, as follows:

“(1) Authorities shall be obliged to submit certificates or files, to transmit electronic documents and provide information. If the knowledge of the content of these certificates, files, electronic documents or this information would prove disadvantageous to the interests of the Federation or of a Land , or if the events must be kept strictly secret in accordance with a statute or due to their essence, the competent supreme supervisory authority may refuse the submission of certificates or files, the transmission of the electronic documents and the provision of information.

(2) On request by a party concerned, the Higher Administrative Court shall find by order without an oral hearing whether the refusal to submit certificates or files, to transmit the electronic documents or to provide information is lawful. If a supreme federal authority refuses the submission, transmission or information on grounds that the interests of the Federation would be impaired were the content of the certificates or files, of the electronic documents and the information to become known, the Federal Administrative Court shall decide; ( ... ) The supreme supervisory authority shall submit the certificates or files refused in accordance with subsection 1, second sentence on request by this panel of judges, transmit the electronic documents or provide the refused information. It shall be subpoenaed to these proceedings. ( ... )”

COMPLAINTS

13 . The applicant association complained under Articles 8, 9 and 13 of the Convention of the Federal Agency ’ s gathering of information about its activities and its refusal to provide it with all information as requested.

T HE LAW

A. Alleged violation of Article 8 of the Convention

14 . The applicant association complained that its right to respect for privacy had been infringed by the gathering of information about its activities, and in particular by the Federal Administrative Court ’ s decision not to order the disclosure of information and documents provided by its former members. It relied on Article 8, which, insofar as relevant, reads as follows:

“1. Everyone has the right to respect for his private life (...)

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety (...) for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

1. The gathering of information

15 . Concerning the claim against the gathering of information, the Court notes that the applicant association has not filed any court action and has not pursued available domestic judicial remedies in this regard.

16 . It follows that this part of the applicatio n is inadmissible under Article 35 § 1 given that domestic remedies were not exhausted and must be rejected pursuant to Article 35 § 4 of the Convention.

2. The refusal to order the disclosure of information

17 . As regards the question whether the Federal Agency ’ s refusal to disclose the information interfered with the applicant association ’ s right to respect for its private life, the Court reiterates that Article 8 was deemed applicable in general in matters of information collected by a public authority on individuals themselves ( Rotaru v. Romania [GC], no. 28341/95, § 46, ECHR 2000 ‑ V ; Leander v. Sweden , 26 March 1987, § 48, Series A no. 116; Brinks v. Netherlands (dec.), no. 9940/04, 5 April 2005).

18 . The Court observes that in the present case, the applicant association claimed access to the records, relying on a right to privacy for itself as a legal entity without either claiming to rely on rights on behalf of individuals or substantiating a specific role in society. On the assumption that Article 8 applies in the present case (compare Société Colas Est and Others v. France , no. 37971/97, § 41, ECHR 2002 ‑ III) and that there was an interference with the applicant association ’ s right to private life, such interference constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues a legitimate aim and is “necessary in a democratic society” in order to achieve that aim.

19 . The Court finds that Article 99 (1) of the Code of Administrative Court Procedure provided a legal basis for the decision not to grant access to all files. The Court notes that while the Federal Administrative Court did not find that the “ interests of the Federation or of a Land ” provided sufficient justification, it accepted that, owing to the obligation of the Federal Agency, provided in the German Basic Law (Article 2, right to protection of personality rights ( Allgemeines Persönlichkeitsrecht )) , to protect the privacy of third persons, the information was kept “ secret in accordance with a statute” and due to the essence of the sensitive personal information.

20 . Nonetheless, according to the Court ’ s case-law, the legal basis also has to be “accessible” and “foreseeable”. Foreseeability requires that the legal basis is formulated with sufficient precision to enable any individual to regulate his or her conduct (see, amongst other authorities, The Sunday Times v. the United Kingdom (no. 1) , 26 April 1979, § 49, Series A no. 30) . Since many laws are inevitably couched in terms which are vague and whose interpretation and application are questions of practice (see The Sunday Times v. the United Kingdom , cited above, § 49), this requirement is also satisfied where the individual can regulate his or her conduct from the wording of the relevant provision and, if need be, with the assistance of the courts ’ interpretation of it (see, mutatis mutandis , Kokkinakis v. Greece , 25 May 1993, § 52, Series A no. 260 ‑ A).

21 . Turning to the facts of the present case, the Court observes that, even though Article 99 (1) of the Code of Administrative Court Procedure is worded vaguely, the Federal Administrative Court has outlined in detail the requirements for a refusal in a specific case. Consequently, Article 99 of the Code of Administrative Court Procedure fulfils the ‘ quality of law ’ criterion.

22 . The Court further notes that the decision at issue pursued the legitimate aim of protecting the rights and freedoms of others.

23 . As regards the remaining question of whether the Federal Agency ’ s refusal to produce the documents was “necessary in a democratic society”, the Court reiterates that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.

24 . The Court notes that, in the present case, information withheld from the applicant association was made available to the Federal Administrative Court without that information being passed on to the applicant association, in order to allow the court to assess whether or not any information had been unjustly withheld. It considers that such judicial supervision constitutes an effective and accessible procedure by an independent authority which meets the requirements of Article 8 § 2 of the Convention (see, mutatis mutandis , Gaskin v. the United Kingdom , 7 July 1989, § 49, Series A no. 160; and Roche v. the United Kingdom [GC], no. 32555/96, § 162, ECHR 2005 ‑ X).

25 . Furthermore, the Court takes into account an individual ’ s right to have personal details protected if stored by public institutions (see, mutatis mutandis , Craxi v. Italy (no. 2) , no. 25337/94, §§ 70 76, 17 July 2003). In the context of protecting society from faith-based organisations which might use abusive practices, in particular, it has to be observed that statements by former members include highly sensitive personal information concerning their personal and religious life and that the members have an increased interest in not being identified.

26 . The Court observes that the Federal Administrative Court balanced the interests of the applicant association with the interests of the former members. The court could not find any other possibility than to withhold these documents because the small number of possible sources would have allowed the former members to be identified, even if the documents were edited. Furthermore, the court established that the statements did not include any defamatio n of the applicant association.

27 . Therefore, having regard to the margin of appreciation enjoyed by the State and as assumed in paragraph 18 that Article 8 applies, the Court accepts that the German authorities were entitled to consider that, under the circumstances of the present case, the protection of the rights of others outweighed a possible right to access to the information that had been collected by public authorities on the applicant association.

28 . Consequently, the Court concludes that the decision to limit the applicant association ’ s access to the information that did not contain any personal data relating to third parties cannot be said to have been disproportionate to the legitimate aim pursued and was, therefore, “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention (see mutatis mutandis, Brinks , cited above).

29 . It follows that this part of the applicatio n is inadmissible under Article 35 § 3(a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

B. Alleged violation of Article 9 of the Convention

30 . The applicant association further complained that the Federal Agency ’ s information gathering and the refusal of access to that information constituted an unjustified interference with the right to manifest a religion, as provided in Article 9 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

31 . The Court reiterates that the applicant association has not contested the gathering of information before the do mestic courts (see paragraph 15 ).

32 . The Court further reiterates that a Church or an ecclesiastical body may, as such, exercise on behalf of its adherents the rights guaranteed by Article 9 of the Convention (see Cha ’ are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 72, ECHR 2000-VII).

33 . While religious freedom is primarily a matter of individual conscience, it also implies, inter alia , freedom to manifest one ’ s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists a number of forms which manifestation of one ’ s religion or belief may take, namely worship, teaching, practice and observance. Furthermore, it includes in principle the right to try to convince one ’ s neighbour, for example through “teaching”, failing which, moreover, “freedom to change [one ’ s] religion or belief”, enshrined in Article 9, would be likely to remain a dead letter (see, amongst many authorities, Kokkinakis , cited above, § 31, and Buscarini and Others v. San Marino [GC], no . 24645/94, § 34, ECHR 1999-I). Nevertheless, Article 9 does not protect every act motivated or inspired by a religion or belief (see, amongst many other authorities, Kalaç v. Turkey , judgment of 1 July 1997, Reports of Judgments and Decisions 1997 ‑ IV, § 27,). The freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance (see Campbell and Cosans v. the United Kingdom , judgment of 25 Feb ruary 1982, Series A no. 48, p. 16, § 36).

34 . According to its statutes, the applicant association promotes the teachings of a “ new, true Christian faith” . The Court notes, however, that the applicant association did not show any specific consequences for itself and its individual members that could in any way hinder their freedom to manifest their religion. It did not submit substantiated information in this regard to indicate a possible interference with the right to manifest its religion under Article 9 § 1 of the Convention .

35 . It follows that this part of the application is inadmissible partly under Article 35 § 1 for non-exhaustion of domestic remedies and partly under Article 35 § 3(a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

C. Alleged violation of Article 13 of the Convention

36 . As regards the applicant association ’ s complaint under Article 13, the Court notes that according to its case-law, Article 13 applies only where an applicant has an arguable claim to be the victim of a violation of a Convention right. Having regard to its conclusion under Articles 8 and 9 of the Convention (see paragraphs 29 and 34 above), the Court finds that the applicant association did not have an arguable claim. Article 13 is therefore inapplicable to its case (see, among many other authorities, Banks and Others v. the United Kingdom (dec.), no. 21387/05, 6 February 2007).

37 . It follows that this part of the applicatio n is inadmissible under Article 35 § 3(a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 10 December 2015 .

             Claudia Westerdiek Ganna Yudkivska Registrar President