THIRD SECTION

DECISION

Application no. 4550/15 Hans-Wilhelm SAURE against Germany

The European Court of Human Rights (Third Section), sitting on 14 December 2021 as a Committee composed of:

Georgios A. Serghides, President, Anja Seibert-Fohr, Frédéric Krenc, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to the above application lodged on 15 January 2015,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the comments submitted by the Centre for Democracy and Rule of Law, who was granted leave to intervene by the Vice-President of the Section,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Hans-Wilhelm Saure, is a German national, who was born in 1968 and lives in Berlin. He was represented before the Court by Mr C. Partsch, a lawyer practising in Berlin.

2. The German Government (“the Government”) were represented by two of their Agents, Mr H.-J. Behrens and Ms K. Behr, of the Federal Ministry of Justice and Consumer Protection.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. By letter of 3 July 2010 to the German Foreign Intelligence Service ( Bundesnachrichtendienst ) the applicant – a journalist with Bild , a newspaper with a large daily circulation – requested the Foreign Intelligence Service to allow him to consult and make copies of the files it held on Adolf Eichmann, a leading representative of the Nazi regime.

5. By letter of 21 July 2010 the Foreign Intelligence Service notified the applicant that it would take some time to determine which parts of the files could be consulted and in respect of which parts there were overriding confidentiality interests.

6. On 26 August 2010 the applicant’s lawyer lodged an action for failure to act ( Untätigkeitsklage ) with the Berlin Administrative Court. On 15 September 2010 that court referred the matter to the Federal Administrative Court, the latter being competent to adjudicate actions concerning the Foreign Intelligence Service.

7. On 24 September 2010 the presiding judge of the competent panel of the Federal Administrative Court requested the respondent authority to submit to the court the files to which the request related.

8. In December 2010 the Federal Chancellery ( Bundeskanzleramt ), the authority overseeing the Foreign Intelligence Service, declared an exemption of disclosure ( Sperrerklärung ) under Article 99 § 1, second sentence, of the Code of Administrative Court Procedure (see paragraph 20 below) concerning some of the files. Accordingly, some documents were submitted with certain parts blanked out and other documents not at all. Yet other documents were submitted as requested.

9. The applicant requested that interlocutory proceedings under Article 99 § 2 of the Code of Administrative Court Procedure to determine the lawfulness of the exemption of disclosure be carried out (see paragraph 20 below). On 1 March 2011 the panel of the Federal Administrative Court responsible for the main proceedings referred the matter to that court’s specialist panel competent for assessing the lawfulness of the exemption of disclosure (see Article 189 of the Code of Administrative Court Procedure, paragraph 20 below).

10. By order of 10 February 2012 that panel, after having viewed the impugned documents, found that the Federal Chancellery’s refusal to submit certain documents, respectively its submission of other documents with certain parts blanked out, was, in part, unlawful. It rejected the remainder of the applicant’s request to find that the failure to submit the requested files in their entirety, without any parts blanked out, was unlawful.

11. The specialist panel noted that the Federal Chancellery had argued that disclosing certain documents, without any parts blanked out, would be detrimental to the interests of the Federal Republic (a ground listed in Article 99 § 1, second sentence of the Code of Administrative Court Procedure), notably to Germany’s foreign relations and to the ability of Germany’s security services to effectively perform their functions in the future. The panel observed that the Federal Government had a wide margin of appreciation in respect of Germany’s foreign relations which was subject to limited judicial review, and found not unreasonable the Federal Chancellery’s submission that disclosing the said documents – which mentioned other States’ foreign policy aims and interests – in their entirety, without passages blanked out, would be detrimental to Germany’s foreign relations. By contrast, insofar as the Federal Chancellery had argued that it would be detrimental to the ability of German security services to effectively perform their functions in the future if documents were disclosed that had been transmitted to the Foreign Intelligence Service by intelligence services of other States on the condition of confidentiality, the panel found in respect of certain documents that there were no indications, in view of the content of the documents at issue and the passage of time, that their disclosure would cause adverse effects on the cooperation with the Israeli intelligence service, which had transmitted them to the Foreign Intelligence Service. The panel therefore found that there was no ground under Article 99 § 1, second sentence, of the Code of Administrative Procedure, for withholding these documents. It arrived at the same conclusion in respect of the blanking out of parts of other documents in order to conceal that the documents had been transmitted to the Foreign Intelligence Service. Insofar as the Federal Chancellery had blanked out parts of documents because they reflected operational details of missions carried out by the Foreign Intelligence Service, including code names, the panel emphasised that disclosing documents, without any redactions, from which inferences could be drawn about the current work of the service could hinder the service from effectively performing its functions in the future. However, most of the parts blanked out in the documents at issue related to missions that had been completed a long time ago and there were no indications that their disclosure allowed for inferences to be drawn about the service’s present day work. There was thus no ground for refusing disclosure of most of those documents, without any parts blanked out.

12. The panel went on to find that the blanking out of certain parts of the documents served to conceal personal data of informers of the Foreign Intelligence Service, in particular their identity, which still warranted protection at present. There was thus a ground under Article 99 § 1, second sentence, of the Code of Administrative Court Procedure – the nature of the information requiring its confidentiality – for blanking out those parts of the documents. Insofar as figures of contemporary history were concerned, there was no ground for withholding documents, or blanking out parts, insofar as they referred to events or reproduced data that was in any event known; the exemption of disclosure had, for the most part, complied with this. The panel added that there were grounds for blanking out parts of documents where this served to protect personality rights, including of relatives of figures of contemporary history.

13. The panel continued that, insofar as there were grounds for refusing disclosure of certain documents, without any parts blanked out, the Federal Chancellery had not overstepped its margin of appreciation under Article 99 § 1, second sentence of the Code of Administrative Court Procedure. The Federal Chancellery had weighed the interest in confidentiality against the public interest in establishing the facts in the main proceedings as well as the applicant’s interest in the analysis of subjects of contemporary history, and had concluded to attach more weight to keeping those documents, or parts of them, confidential. In so doing, it had taken account of the passage of time and the minimal relevance of the withheld documents for historical analysis.

14. The applicant did not lodge a constitutional complaint against the Federal Administrative Court’s order of 10 January 2012.

15. Subsequently, and in accordance with the order of 10 January 2012, the respondent disclosed certain files to the Federal Administrative Court without redactions and the applicant declared the matter, in part, resolved.

16. The applicant, through his lawyer, maintained the remainder of his action, submitting that the order of 10 January 2012 manifestly erred about constitutional law requirements; when adjudicating the main proceedings the Federal Administrative Court was therefore not bound by that order. As the grounds for keeping documents confidential under Article 99 § 1, second sentence, of the Code of Administrative Court Procedure and those for refusing access under the Federal Archives Act, on the provisions of which the applicant relied, were not identical, the court had some margin for judicial review. In any event, the requirements of neither provision were met.

17. By judgment of 27 June 2013 the Federal Administrative Court discontinued the proceedings insofar as the parties declared the matter resolved; it dismissed the remainder of the applicant’s action. Noting that assessing whether the grounds for refusing access invoked by the respondent – those listed in section 5 §§ 2 and 6 nos. 1 and 2 of the Federal Archives Act – were met, required an examination of the files, without any parts blanked out, the court considered that it was prevented, for legal reasons, from carrying out such review. In accordance with Article 189 of the Code of Administrative Court Procedure, the specialised panel had exclusive competence to determine whether files could be provided or used and its order of 10 January 2012 was to be treated as a final interlocutory judgment which was legally binding for the main proceedings (see paragraph 21 below). The court adjudicating the main proceedings was therefore prevented from making its own determination as to the existence of a public interest in maintaining confidentiality and from engaging in a balancing exercise. With his action, the applicant requested access to impugned files without any parts blanked out – which the respondent had refused, and lawfully so, following the outcome of the interlocutory proceedings. As the grounds invoked by the respondent in the main proceedings did, in substance, not differ from those of Article 99 § 1, second sentence, of the Code of Administrative Court Procedure (see paragraph 21 below), the court concluded that the grounds invoked for refusing access under the Federal Archives Act were met. The applicant’s submission that the order of 10 January 2012 could not have prejudicial effect – because constitutional requirements had allegedly not been properly interpreted – was baseless. In any event, the applicant could have challenged the order of 10 January 2012 by lodging a constitutional complaint with the Federal Constitutional Court against it (see paragraph 22 below). The judgment was served on the applicant’s counsel on 29 July 2013.

18. On 27 August 2013 the applicant, through his lawyer, lodged a constitutional complaint against the Federal Administrative Court’s judgment of 27 June 2013. He submitted that the order of 10 January 2012 suffered from evident and grave errors, including the failure to give any consideration to his fundamental rights. When adjudicating the main proceedings, the Federal Administrative Court had not remedied those errors. In substance, the requirements of Article 99 § 1, second sentence, of the Code of Administrative Court Procedure and of section 5 §§ 2 and 6 nos. 1 and 2 of the Federal Archives Act were not met. Being unable to contest the order of 10 January 2012 in the further course of the proceedings also breached his right to an effective remedy.

19. On 26 June 2014 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint, without providing reasons (no. 1 BvR 2420/13). The decision was served on the applicant’s lawyer on 22 July 2014.

20. The relevant provisions of the Code of Administrative Court Procedure ( Verwaltungsgerichtsordnung ), insofar as relevant, read as follows:

Article 99

“(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 detrimental to the interests of the Federal Republic or of a Land , or if the events must be kept strictly secret in accordance with a statute or due to their nature, 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 [court having jurisdiction in the main proceedings] shall assign the application and the main case files to the adjudication bodies with jurisdiction in accordance with Article 189. The supreme supervisory authority shall submit the certificates or files refused in accordance with paragraph 1, second sentence on request by this panel of judges, transmit the electronic documents or provide the refused information. ... Article 100 [the right to consult court files] shall not apply to the files ... [so] submitted ...“

Article 189

“Specialist senates shall be formed at the Higher Administrative Courts and the Federal Administrative Court for the decisions to be taken in accordance with Article 99 § 2.”

21. The grounds under Article 99 § 1, second sentence, of the Code of Administrative Court Procedure allowing for certain files being kept confidential do in substance not differ from those of section 5 §§ 2 and 6 nos. 1 and 2 of the Federal Archives Act for refusing access to archives (see Federal Administrative Court, no. 20 F 13.09, order of 19 April 2010, at para. 24). Where the specialist panel has determined in proceedings under Articles 99 § 2 and 189 of the Code of Administrative Court Procedure that grounds under Article 99 § 1, second sentence, of the Code for keeping certain files confidential exist and such order becomes final, the court adjudicating the main proceedings must treat that order like a final interlocutory judgment (see, for example, Federal Administrative Court, no. 20 F 3.03, 15 August 2003, at para. 4).

22. An order of the Federal Administrative Court taken in proceedings under Article 99 § 2 of the Code of Administrative Court Procedure may be challenged, in isolation, with a constitutional complaint to the Federal Constitutional Court, constituting an exception from the general rule that interlocutory decisions may not be challenged in isolation with a constitutional complaint but only together with the subsequent judgment in the main proceedings (see Federal Constitutional Court, no. 1 BvR 385/90, order of 27 October 1999, at paras. 54 et seq.; nos. 1 BvR 2087/03 and 1 BvR 2111/03, order of 14 March 2006). Where an interlocutory decision is binding for the further course of the proceedings and may be challenged in isolation with a constitutional complaint, the one-month time-limit for lodging a constitutional complaint (Section 93 § 1 of the Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz ) starts to run with the delivery of the interlocutory decision. If a decision, which may be challenged with a constitutional complaint, is later challenged jointly with the subsequent judgment – for which the earlier decision was legally binding –, complaints against the earlier decision are inadmissible for failure to comply with the time-limit if the one-month limit has lapsed by then (see Federal Constitutional Court, no. 1 BvR 1877/01, order of 26 June 2007, at para. 11).

COMPLAINTS

23. The applicant complained under Article 10 of the Convention about the refusal to give him access to the files held by the Foreign Intelligence Service on Adolf Eichmann, a leading representative of the Nazi regime, in their entirety without any parts blanked out. Moreover, relying on Article 6 taken in conjunction with Article 10 of the Convention, he alleged that the requested information gradually lost in value in view of the length of the proceedings and the delay in giving him access to it.

THE LAW

24. Articles 10 and 35 of the Convention read, insofar as relevant, as follows:

Article 10

“1. Everyone has the right to freedom of expression. This right shall include freedom ... 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, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Article 35

“(1) The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.

...”

(a) The Government

25. The Government submitted that the complaint was inadmissible. The applicant had not properly exhausted domestic remedies. In accordance with the well-establish case-law of the domestic courts, the balancing exercise in which the Federal Administrative Court had engaged in its order of 10 January 2012, concluding that the interests of keeping certain (parts of) files confidential prevailed over the applicant’s interests, could only have been reviewed by the Federal Constitutional Court if the applicant had lodged a constitutional complaint directly against that order, which he had failed to do. It was belated to raise any complaints related to the order of 10 January 2012 in his constitutional complaint against the judgment of 27 June 2013. Similarly, for the purposes of the proceedings before the Court, his complaints relating to the order of 10 January 2012 were inadmissible for non-exhaustion of domestic remedies as well as failure to comply with the six-months time-limit. Even assuming that the applicant could challenge with the present application that the Federal Administrative Court had allegedly erred, in its judgment of 27 June 2013, when it considered itself bound by the order of 10 January 2012, the applicant had not made arguments to that effect. In any event, the applicant’s complaint was also incompatible ratione materiae with Article 10 of the Convention, or, in the further alternative, ill ‑ founded.

(b) The applicant

26. The applicant argued that he had exhausted domestic remedies in accordance with Article 35 § 1 of the Convention. Lodging a constitutional complaint against the Federal Administrative Court’s judgment in the main proceedings of 27 June 2013 was an effective remedy. He was not required to pursue two proceedings simultaneously – (i) a constitutional complaint directly against that order and (ii) the main proceedings and subsequently a constitutional complaint against the judgment in the main proceedings. In relation to the merits, the applicant asserted that there had been an unjustified interference with his rights under Article 10 of the Convention.

(c) The third-party intervener

27. The Centre for Democracy and Rule of Law argued in favour of interpreting Article 10 of the Convention as a right of the press vis-à-vis the authorities to be given access to information within adequate time. This was necessary in order to enable the press to effectively fulfil its role as “public watchdog” in relation of the authorities.

28. The Court observes that the applicant’s complaint relates, in essence, to issues decided by the Federal Administrative Court’s specialist panel in the proceedings under Article 99 § 2 of the Code of Administrative Court Procedure, that is to say, the balancing exercise which led that panel to conclude that the interests of keeping certain (parts of) files confidential prevailed over the applicant’s interests. The Court also notes that, according to well-established domestic law to which the Federal Administrative Court referred in its judgment of 27 June 2013, the order of the specialist panel was to be treated as a final interlocutory judgment which was legally binding for the main proceedings and that, accordingly, the Federal Administrative Court, when adjudicating the main proceedings, was prevented from making its own determination as to the existence of a public interest in maintaining confidentiality and from engaging in a balancing exercise (see paragraphs 17 and 21 above).

29. Having regard to the well-established case-law of the domestic courts to which both the Federal Administrative Court in its judgment of 27 June 2013 and the Government in their submissions pointed (see paragraphs 17 and 25 above), the Court notes that the applicant could have lodged a constitutional complaint directly against the order of 10 January 2012 of the Federal Administrative Court’s specialised panel in the proceedings under Article 99 § 2 of the Code of Administrative Court Procedure if he had wanted to complain about the determinations made in that order before the Court (see paragraphs 17, 22 and 25 above). The applicant did not do so (see paragraph 14 above). Rather, he lodged a constitutional complaint against the judgment of 27 June 2013 and, in essence, complained about alleged errors, including the failure to give any consideration to his fundamental rights, of the order of 10 January 2012 (see paragraph 18 above).

30. The Court reiterates that States are exempted from answering before an international body for their acts until they have had an opportunity to put matters right through their own legal system. The obligation under Article 35 § 1 of the Convention to exhaust domestic remedies therefore requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (for a summary of the relevant principles see, among many other authorities, Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 83-89, 9 July 2015).

31. The Court has already dealt with a case which concerned the lawfulness of an exemption of disclosure and proceedings under Article 99 § 2 of the Code of Administrative Court Procedure. In Das Universelle Leben aller Kulturen weltweit v. Germany ((dec.), no. 60369/11, 17 November 2015), the applicant had complained about an order by a specialist panel in proceedings under Article 99 § 2 of the Code of Administrative Court Procedure. The applicant had unsuccessfully challenged that order, in isolation, with a constitutional complaint to the Federal Constitutional Court. The Court did not consider the application to be premature and examined it in substance, that is to say, it reviewed whether the said order taken in the proceedings under Article 99 § 2 of the Code of Administrative Court Procedure, by which the Federal Administrative Court had refused to order the disclosure of certain information, infringed the applicant association’s Convention rights.

32. Under well-established case-law of the domestic courts to which the Government referred, the applicant could no longer raise, in an admissible manner, complaints related to the order of 10 January 2012 in his constitutional complaint against the judgment of 27 June 2013 as the one-month time-limit, which had started to run with the delivery of the order, had long lapsed by then (see paragraphs 22 and 25 above). Moreover, in view of the well-established case-law of the domestic courts, it was evident that the applicant’s constitutional complaint against the judgment of 27 June 2013 was not capable of remedying the grievance that he alleged before this Court which relates to the issues decided by Federal Administrative Court’s specialist panel in proceedings under Article 99 § 2 of the Code of Administrative Court Procedure, that is to say, that the non-disclosure of certain (parts of) documents was lawful and the balancing of the competing interests to arrive at that conclusion. The effective remedy for the purposes of Article 35 § 1 of the Convention in respect of the applicant’s Article 10 complaint would have been a constitutional complaint lodged directly against the specialist panel’s order of 10 January 2012, in compliance with the respective one-month time-limit, similar to what the applicant association in the above-cited case Das Universelle Leben aller Kulturen weltweit did.

33. As the applicant failed to make use of the domestic remedy capable of remedying his Convention grievance, the Court concludes that the complaint must be rejected as inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.

34. Article 6 § 1 of the Convention, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal established by law.”

35. The Government asserted that the complaint was inadmissible. They submitted that the proceedings at issue did, firstly, not concern a “civil” right within the meaning of Article 6 § 1 of the Convention. The complaint was hence incompatible ratione materiae . Secondly, the applicant had failed to make use of the relevant domestic remedy (Section 198 of the Court Constitutions Act) to complain about the length of the proceedings. He had thus not exhausted domestic remedies. Thirdly, he had not pointed to any alleged delays in the proceedings before the domestic courts and there were no indications that the length of the proceedings had been excessive.

36. The applicant alleged that the requested information gradually lost in value in view of the length of the proceedings and the delay in giving him access to it.

37. Even assuming that Article 6 § 1 of the Convention is applicable ratione materiae to the proceedings at issue, the Court considers that the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention in respect of his complaint about the length of the proceedings. He did not make use of the remedy provided for by domestic law in that respect to complain about the length of the proceedings (Section 198 of the Court Constitutions Act, see also Saure v. Germany (dec.), no. 6106/16, § 44, 19 October 2021).

38. It follows that the applicant’s complaint under Article 6 § 1 of Convention must therefore be rejected as inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 January 2022.

Olga Chernishova Georgios A. Serghides Deputy Registrar President