Information Note on the Court’s case-law 256

November 2021

Saure v. Germany (dec.) - 6106/16

Decision 19.10.2021 [Section III]

Article 10

Article 10-1

Freedom to impart information

Freedom to receive information

Refusal to provide a journalist with information not “ready and available” about the number of employees and collaborators of the Federal Intelligence Service and its predecessor organisation who had been affiliated to Nazi organisations: inadmissible

Facts – The applicant, a journalist of a daily newspaper, requested information concerning the number of employees and collaborators of the Foreign Intelligence Service and its predecessor organisation who had been members of the Nazi party, the SS, the Gestapo or the “Foreign Armies East”.

The Foreign Intelligence Service was not able to accept his request because at the material time it did not have the relevant information, which was being gathered by an independent commission of historians.

Law – Article 10:

The Court assessed the case in the light of its particular circumstances and having regard to the four criteria developed in Magyar Helsinki Bizottság v. Hungary [GC] taken cumulatively: (a) the purpose of the information request; (b) the nature of the information sought; (c) the role of the applicant; and (d) whether the information was ready and available.

Firstly, the applicant’s role as a journalist had been undeniably compatible with the scope of the right to solicit access to State‑held information.

Secondly, the nature of the information sought had met the public-interest test, as the information request had concerned a matter that was of interest for society as a whole, notably the level of pervasion of the Foreign Intelligence Service by employees with a Nazi background in the decades following the end of the Second World War. This matter raised important and sensitive questions relating to the respondent State’s recent history that had been and had continued to be the subject of considerable public debate. The fact that the Foreign Intelligence Service in 2011 had appointed a commission of historians to comprehensively study the service’s history over a period of several years, including in relation to the issues covered by the applicant’s information request, reinforced this conclusion.

Yet, that commission’s establishment, terms of reference and publications in subsequent years also demonstrated that the information requested by the applicant had not been “ready and available”. Indeed, as the domestic courts had pointed out, the independent commission of historians, whose research had been ongoing at the material time, had been established because the information requested by the applicant had not been available within the Foreign Intelligence Service. The Federal Administrative Court had established that previous membership in the said Nazi organisations had not been systemically recorded. The domestic courts had taken the view that the purpose of the applicant’s information request essentially had been to have the authorities carry out extensive research and analysis in order to generate the requested information. The Court, having regard also to the publications of the independent commission of historians, saw no reason to depart from these findings and considered that a situation, in which a journalist sought the disclosure of information which would first have to be created through comprehensive research and analysis, and in which not even the entire raw data (from which such information had to be generated) existed within the authority due to a lack of recording, was distinct from one where the requested information existed within the authority and would merely need to be compiled in order to respond to the request ( Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grundbesitzes v. Austria ). Reiterating that Article 10 did not impose an obligation to collect information on the applicant’s request, particularly when a considerable amount of work was involved, the Court considered that this applies a fortiori where the requested information did not even exist within the authority as in the present case.

Therefore, the authorities’ refusal to provide the applicant with the requested information had not amounted to de facto censorship, nor had it prevented him from exercising his role as a “public watchdog”. In this connection, in so far as the personnel files had been analysed and respective information had been made available to the public through archives, the applicant could accesspart of the information he had sought to obtain. Against this background, the Court did not need to determine whether the applicant had sufficiently substantiated the purpose of his information request before the domestic courts.

In the light of the foregoing, the applicant’s complaint about the refusal of his information request, including about the lack of expedition of the respective proceedings, was incompatible ratione materiae with Article 10.

Conclusion : inadmissible (incompatible ratione materiae ).

(See also Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grundbesitzes v. Austria , 39534/07, 28 November 2013, Legal summary ; Magyar Helsinki Bizottság v. Hungary [GC], 18030/11, 8 November 2016, Legal summary ; Centre for Democracy and the Rule of Law v. Ukraine (dec.), 75865/11, 3 March 2020, Legal summary ; Centre for Democracy and the Rule of Law v. Ukraine , 10090/16, 26 March 2020, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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