Published on 2 October 2023

FOURTH SECTION

Application no. 47935/19 Jost MÃœLLER-NEUHOF against Germany lodged on 3 September 2019 communicated on 12 September 2023

SUBJECT MATTER OF THE CASE

The application concerns the access of the applicant, a journalist, to information about proceedings concerning the immunity of, and preliminary criminal proceedings against, Members of the German Federal Parliament ( Bundestag ). Certain information on this subject matter is publicly available, which the administration of the Federal Parliament pointed out to the applicant in response to his request; it rejected his request for disclosure of additional information.

By judgment of 25 October 2018 the Federal Administrative Court dismissed the applicant’ appeal on points of law. It found that the applicant could not rely on the right of the press to receive information which derived directly from Article 5 § 1, second sentence of the Basic Law ( verfassungsunmittelbarer Auskunftsanspruch ) to request the impugned information from the Federal Parliament. Parliamentary affairs such as matters relating to immunity – which served to protect the Members of Parliament against interferences with their parliamentary work and thus to ensure the functioning of the Federal Parliament which performed its tasks through the entirety of its Members – were outside the scope of the aforementioned right of the press to receive information, because matters relating to immunity, in their entirety, belonged to the core of the Federal Parliament’s autonomy guaranteed under the constitutional law. In this regard, there was no distinction as to the quality of the information concerned and it was not relevant whether disclosing the impugned information may affect the functioning of Parliament, its reputation, or legal interests of individual Members. Distinguishing between “purely statistical information”, which had to be disclosed, and other information would run counter to the comprehensive allocation of matters relating to immunity as belonging to the autonomy of Parliament. The Federal Administrative Court added that there was much to suggest that Article 10 § 1 of the Convention applied to the applicant’s information request, which he had made as a journalist and thus in his function as a “public watchdog”. However, regard being had to the margin of appreciation afforded to Contracting Parties to the Convention, there were no indications that the limits existing under domestic law in respect of the right of the press to receive information deriving directly from Article 5 § 1, second sentence of the Basic Law did not satisfy the proportionality requirements under Article 10 § 2 of the Convention.

The applicant alleged a violation of Article 10 of the Convention.

QUESTIONS TO THE PARTIES

Has there been a violation of the applicant’s right to freedom of expression, in particular his “freedom to receive and impart information”, contrary to Article 10 of the Convention? In particular:

(a) Having regard to the criteria set out in the Court’s case-law (see Magyar Helsinki Bizottság v. Hungary ([GC], no. 18030/11 , §§ 149-180, 8 November 2016), was Article 10 of the Convention applicable to the applicant’s information request?

- Is it relevant, in this regard, that the information request was directed against a legislative body and that it concerned matters relating to the immunity of Members of Parliament? If so, how is it relevant and what consequences follow from this?

- Having regard to the fact that certain information on the subject matter of the applicant’s information request is publicly available, was access to the requested information instrumental for the exercise of the applicant’s right to freedom of expression (see, in particular, Georgian Young Lawyers’ Association v. Georgia (dec.), no. 2703/12 , §§ 29-33, 19 January 2021)?

(b) If there was an interference with the applicant’s freedom of expression, in particular his freedom to receive and impart information, was that interference justified under Article 10 § 2 of the Convention? In particular:

- Did the domestic courts sufficiently assess the proportionality of the impugned refusal of the applicant’s information request?

- Are the aspects on which the domestic courts relied to find that the impugned information was outside the scope of the right of the press to receive information which derived directly from Article 5 § 1, second sentence, of the Basic Law relevant for the proportionality assessment? Are there other aspects which are relevant for the assessment of the proportionality of the impugned refusal to disclose information concerning matters relating to the immunity of Members of the Federal Parliament? If so, which are these?