Access to Public Information, National Security, Press Freedom
Saure v. Germany
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The European Court of Human Rights held that Germany did not violate the rights of a journalist when it refused a request for information about the history of judges who had worked in the former German Democratic Republic (GDR) Security Service. The journalist had sought information on the names, places of work, history within the security service and details of cases related to the GDR the judges had decided. The German courts refused the application, holding that the judges’ rights to their reputation and the negative consequences of their identities being revealed outweighed the right to freedom of expression. The Court agreed with the domestic courts, finding only that the request for information on the judges’ history had not been properly determined by the German courts, but that, for all other requests, the personal rights of the individuals outweighed the journalist’s right to access to information, an element of the right to freedom of expression under the European Convention on Human Rights.
In 2010 and again in 2011, a German member of the Brandenburg state parliament asked the Brandenburg government to provide details of the judges and prosecutors who had collaborated with the government of the German Democratic Republic (the GDR, also known as East Germany). During the reunification of East and West Germany between 1989 and 1991, before judges and prosecutors from the GDR could be integrated into the reunified German judiciary background checks were conducted. Less than half of the GDR judges and prosecutors were integrated into the Brandenburg judiciary in reunified Germany. Some of those which had been integrated had collaborated with the GDR Ministry of State Security but their “collaboration was deemed not to have been so severe that it called into question their suitability for office”. [para. 5]
In response to the question, the Brandenburg Justice Ministry stated that thirteen judges and one prosecutor had a collaboration history with the GDR Ministry of State Security.
On August 15, 2011, Hans-Wilhelm Saure, a journalist with Bild magazine, filed a request at the Potsdam Administrative Court, for information on the thirteen GDR-related judges and prosecutor. He asked: “(i) What incriminating findings are available against the thirteen judges and the public prosecutor who are still serving at present?; (ii) What are the names of the thirteen judges? Where are they currently serving?; (iii) What is the name of the public prosecutor? Where is he currently serving?; (iv) Which of the thirteen judges concerned are currently dealing with, or have previously dealt with, ‘proceedings concerning wrongful acts committed by the GDR’?” [para. 11]
Some related information had been disclosed to the public. Saure had previously brought separate proceedings for interim measures, and on October 28, 2011, the Berlin-Brandenburg Administrative Court of Appeal ordered that information be disclosed on the number of the judges serving in civil and criminal courts and the level of their jurisdiction; what specialized courts the judges were serving in and their level of jurisdiction; and how many of the judges had dealt with cases involving “restitution of property under the Property Act or proceedings governed by the Criminal Rehabilitation Act”. [para. 9]
On December 6, 2011, the Brandenburg Ministry of Justice disclosed that: “of the nine judges serving in ordinary courts, four were serving at a district court, four served in a regional court and one served in a court of appeal” and that “four judges dealt with civil cases, four dealt with criminal cases and one dealt with both civil and criminal matters”. [para. 10] In respect of the specialized courts, four judges “dealt with administrative law, labour law and social law and were all serving at courts of first instance”. [para. 10] The Ministry later supplemented this information with a statement that “[s]ix of the thirteen judges had previously been involved in restitution proceedings under the Property Act or proceedings governed by the Criminal Rehabilitation Act.” [para. 10]
In 2012, the Brandenburg parliament received a report which examined the position of all judges and prosecutors who had served in the GDR judiciary and now served in the reunified judiciary.
In the main application, the Potsdam Administrative Court denied Saure’s request for information. With reference to the Stasi Records Act, the Court held that any information collected on incriminating history could only be used for the purpose of integrating the judges and prosecutors into the reunified judiciary and so the information could not be disclosed to the media. It also found that Saure had not demonstrated that he met the requirements under the Brandenburg Information Act or the Brandenburg Constitution for disclosure of the information. The Court held that Saure was not entitled to rely on Article 5(1) and (2) of the Basic Law which protected the right to freedom of information and of the press because that right only applied to information that was “intended to be generally accessible” and that the information Saure sought was not. [para. 13] The Court found that Saure was not entitled to the names of the judges and prosecutors because the request could be justifiably refused in order to protect the personality rights of the individuals concerned and that those individuals’ interests outweighed Saure’s (in his capacity as a journalist) and the public’s interest in respect of disclosing the judges’ and prosecutor’s name. The Court did note the “significance of the requested disclosure for the work of the press in a democratic society,” but stressed that there is “no general rule that priority be accorded” when these rights are in conflict. [para. 14]
The Potsdam Administrative Court stressed the importance of the media in a democracy and that to “effectively exercise that role, the press had to have, in principle, unlimited access to information, including by obtaining access to sources of information that were not generally accessible” because the media must be informed itself so as to inform others. [para. 15] The Court noted that it was “in general, for the press to evaluate and decide what it regarded as being information of public interest” and that “[m]aking use of the requested information was the editorial responsibility of the respective media outlet alone, in which context the press could, in general, be trusted to be aware of its responsibility and to comply with the principles of the Press Code of Conduct and the guidelines issued in that regard.” [para. 15] The Court acknowledged that there was a public interest in the disclosure of the judges’ and prosecutor’s names and that “[t]he mere possibility that a publication would violate personality rights was not sufficient for refusing the disclosure of information to the press.” [para. 15] However, the Court held that the disclosure would infringe the judges’ and prosecutor’s right to informational self-determination and would lead to stigmatization, scrutiny of their work and judgment, harm to their reputation and the risk of hostile behaviour professionally and personally. The Court noted that the individuals had “never sought public attention and had kept a low profile” and that they had been subject to a background check before they had been integrated into the judiciary. [para. 16] It also held that an anonymous disclosure of where the judges and prosecutor served could, nevertheless, lead to their identification. The Court held that the request for information on “proceedings concerning wrongful acts committed by the GDR” was too vague.
Saure appealed the decision to the Brandenburg-Berlin Administrative Court of Appeal which dismissed the appeal on September 26, 2014.
Saure then appealed to the Constitutional Court on the grounds that his rights under Article 5 of the Basic Law and Article 10 of the European Convention on Human Rights had been infringed. The Constitutional Court declined to hear the case on December 31, 2015.
Article 5 of the Basic Law states: “(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship. (2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.”
Article 10 states: “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.”
The Fourth Section of the European Court of Human Rights delivered a unanimous judgment. The central issue for the Court’s determination was whether the refusal to grant Saure his requested information was necessary in a democratic society.
Saure argued that without the information he sought he would not be able to serve as a “public watchdog” because he was prevented from adequately informing the public about an important debate on “the integrity of judges and public prosecutors serving in the Land of Brandenburg”. [para. 35] He submitted that he needed the names of the judges and prosecutor and whether they had decided cases involving the GDR and restitution and so the information that had been disclosed did not satisfy his request. He described the withholding of the information as censorship as he submitted that it was only from the government that he would be able to obtain this information. He added that the reason the government was refusing his request was because they feared a scandal. Saure explained that accessing the information did not mean he would automatically publish it: he would still have to determine whether he was entitled to publish the information. He submitted that any publication would relate only to the professional, and not private, lives of the judges and prosecutor and that “judges and public prosecutors were senior public officials who were always exposed to close public scrutiny”. [para. 44]
The German government argued that there had been no infringement with Saure’s Article 10 rights as his “information request did not satisfy the criteria mentioned in Magyar Helsinki Bizottság v. Hungary,” and that it had disclosed sufficient information for a public debate. [para. 34] It submitted that, if there had been a limitation of the right under Article 10, the limitation was lawful. The government argued that the judges and prosecutor had a “legitimate interest in non-disclosure” as they could face negative consequences from disclosure. [para 47] It argued that the domestic authorities had correctly weighed the “competing interests of the public in transparency and in coming to terms with political and historical circumstances, on the one hand, with those of rehabilitation and the need of the individuals concerned to have their [right to respect for personal and family life] protected regarding any potential involvement they may have had in the past with the State Security Service of the former GDR, on the other”. [para. 48] The government said that the purpose of the Stasi Records Act was to allow individuals to learn whether they had “been subjected to any measures of investigation and to assert claims for rehabilitation and compensation” or for officials to conduct background checks and that it was not intended to facilitate public access. [para. 48] The government submitted that “[b]y protecting the reputation of judges, the measure complained of also served to maintain the authority of the judiciary”. [para. 47]
As Article 10 does not expressly protect the right to access information – that aspect of the right only arises where “access to the information is instrumental for the individual’s exercise of his or her right to freedom of expression, in particular ‘the freedom to receive and impart information’ and where its denial constitutes an interference with that right” – the Court set out the requirements in Magyar Helsinki Bizottság to determine whether the right does arise in the present case. These elements are: “(i) whether the individuals concerned by the information request were public figures of particular prominence; (ii) whether they had themselves exposed the impugned information to close public scrutiny; (iii) the degree of potential harm to the individuals’ privacy in the event of disclosure; (iv) the consequences for the effective exercise of the applicant’s freedom of expression; and (v) whether the applicant had put forward reasons for the information request … as well as the degree of public interest in the matter”. [para 36]
The Court held that, as a journalist, Saure “wished to exercise the right to impart information on a matter of public interest and sought access to information to that end under Article 10 of the Convention” and that the case was therefore admissible. [para. 39-40]
The Court accepted that Saure’s rights under Article 10 had been infringed by the government’s refusal to grant his request, and so it had to determine whether that interference was “prescribed by law”, pursued a legitimate aim and was “necessary in a democratic society”. The Court found that the refusal was prescribed by law, as it had been done in terms of the Stasi Records Act and that it pursued the legitimate aim of protecting the reputations of the judges and prosecutor. The Court reiterated that the right of receiving information had to be balanced not just with rights of others, but national security or authority of judiciary as well. [para. 56]
In respect of the request for the names of the judges and prosecutor and the courts where they worked, the Court stressed that its role is not to substitute the position of the national courts but merely to “review, in light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention”. [para. 61] It held that the disclosure of the names would “affect the judges and the public prosecutor concerned to such degree as to bring [the right to respect for private and family life] of the Convention into play” and accepted the German courts’ reasons for finding that “the interests of the individuals in non-disclosure of their names outweighed those of [Saure] and the public in their disclosure”. [para. 61] It found that any public debate on the role of GDR-era judges and prosecutors in the reunified judiciary could occur with the information that was in the public domain and that the debate did not need the names of the individuals judges and prosecutor. The Court agreed with the domestic courts that a disclosure of their names could result in scrutiny of past judgments and that – especially as there was no professional misconduct – this would impact on the judiciary’s authority. Accordingly, the Court held that there was no unjustified limitation of the Article 10 rights in refusing to disclose the names and places of work of the judges and prosecutor.
In respect of the non-disclosure of discriminatory findings against the judges and prosecutor, the Court noted that the authorities had disclosed information about military service and informant status of the judges in general and that the parliamentary report had “described, in an anonymised form and by way of example, individual cases of judges and public prosecutors who had previously worked in the judiciary of the former GDR and who had been integrated into the judiciary”. [para. 66] The Court noted that the Stasi Records Act does not “in general rule out the disclosure of personal information by the bodies which have requested such information where this concerns, for example, a summary of the contents of the records”. [para. 68] The Court stressed that Article 10 protects the right of access to information where that “is instrumental for the individual’s exercise of his or her right to freedom of expression” and that the right “may also arise in relation to information that is not, and is not intended to be, generally accessible”. [para. 69] The Court found that the domestic courts had not engaged in a balancing of the competing interests in respect of this requested information and so had not explained “why the disclosure of additional and more detailed information, in an anonymised form, in respect of the collaboration of the thirteen judges and one public prosecutor with the GDR Ministry of State Security would necessarily run counter to the duty of care which the Brandenburg authorities had towards the individuals concerned as their employees”. [para 70] The Court found that this information constituted a significant public interest and that the information from the Parliamentary Report did not provide an answer to Saure’s specific questions. The Court held that the domestic courts could have examined whether “anonymized information could, at the same time, serve [Saure’s] request and protect the opposite interest (national security and protection of others)”, and in not doing so, they infringed Saure’s rights under Article 10. [para. 72].
In respect of the request for information on the judges’ involvement in cases involving wrongful acts of the GDR, the Court accepted the German courts’ characterization of the request as being too vague. Accordingly, the Court held that the refusal to grant Saure’s request for this information did not infringe his right under Article 10.
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Although finding that a journalist did not have the right to access information about individuals that could lead to serious consequences for those individuals if the information was disclosed, the Court based its decision on the need to balance the right to freedom of expression with the rights of others and with the need to protect the judiciary’s authority.
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