FOURTH SECTION
CASE OF SAURE v. GERMANY (No. 2)
(Application no. 6091/16)
 
 
JUDGMENT
Art 10 • Freedom to receive and impart information • Refusal of journalist’s request for the names and places of service of judges and a public prosecutor for whom there were indications of prior collaboration with the former GDR Ministry of State Security • Thorough balancing of competing interests • Relevant and sufficient reasons for non-disclosure • Public debate possible based on certain information disclosed • Justified refusal of unsubstantiated request for information on involvement of judges in “proceedings concerning wrongful acts committed by the GDR”
Art 10 • Freedom to receive and impart information • Refusal of journalist’s request for disclosure of information on incriminating findings against judges and a public prosecutor • Failure to balance competing interests and provide relevant and sufficient reasons for non-disclosure • No examination of whether impugned information could be disclosed in anonymised form • Significant public interest in knowing nature and degree of collaboration of individuals concerned

 
STRASBOURG
28 March 2023
 
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Saure v. Germany (no. 2),
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Gabriele Kucsko-Stadlmayer, President,
 Tim Eicke,
 Faris Vehabović,
 Branko Lubarda,
 Armen Harutyunyan,
 Anja Seibert-Fohr,
 Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 6091/16) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Hans-Wilhelm Saure (“the applicant”), on 26 January 2016;
the decision to give notice to the German Government (“the Government”) of the application;
the observations submitted by the Government and the observations in reply submitted by the applicant;
the comments submitted by the Centre for Democracy and the Rule of Law, which was granted leave to intervene by the Vice-President of the Section;
Having deliberated in private on 7 March 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the access of the applicant, a journalist, to information held by the Ministry of Justice of the Land of Brandenburg concerning judges and a public prosecutor in the Land of Brandenburg who had previously worked for the Ministry of Security of the former German Democratic Republic (GDR). The application concerns the same subject matter as application no. 78944/12, which was declared inadmissible by the Court on 25 August 2015 because the applicant had exhausted domestic remedies only as far as interim measures were concerned and his constitutional complaint concerning the main proceedings was still pending before the Federal Constitutional Court. Following the decision of the Federal Constitutional Court on that complaint, the applicant lodged the present application. He alleged a breach of Article 10 of the Convention. Moreover, he argued that the proceedings, by their nature, had required particular promptness and had been unreasonably long, in breach of Article 6 of the Convention. Lastly, he alleged a lack of impartiality on the part of the judges sitting on his case and those in Brandenburg more generally. THE FACTS
2. The applicant was born in 1968 and lives in Berlin. He is a journalist with Bild, a daily newspaper with a large circulation. He was represented by Mr C. Partsch, a lawyer practising in Berlin. 3. The Government were represented by two their Agents, Ms K. Behr and Mr. H.-J. Behrens, of the Federal Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. BACKGROUND AND SCOPE OF THE CASE
5. Upon the reunification of Germany, the judges and public prosecutors who had worked in the former German Democratic Republic were given the opportunity to apply to be integrated into the judiciary of the new Länder. Background checks were performed on all candidates, including with the Federal Commissioner responsible for examining the documents of the State Security Service of the former GDR (Bundesbeauftragter für die Unterlagen des Staatssicherheitsdienstes der ehemaligen DDR – “the Federal Commissioner”). Some judges and public prosecutors who had collaborated with the GDR Ministry of State Security were integrated into the Brandenburg judiciary because their collaboration was deemed not to have been so severe that it called into question their suitability for office. In total, less than half of the nearly three hundred judges and slightly more than half of the approximately two hundred public prosecutors who had worked in Brandenburg in November 1989 were integrated into the judiciary of the Land of Brandenburg in reunified Germany. 6. In 2010 and 2011, a member of parliament of the Land of Brandenburg submitted several questions to the Brandenburg government concerning the collaboration of certain members of the Brandenburg judiciary with the Ministry of State Security of the former GDR. The Minister of Justice of the Land of Brandenburg stated that there were thirteen judges and one public prosecutor for whom there were indications that they had collaborated with the Ministry of State Security. Nine of those judges were serving in ordinary courts, while four were serving in specialised courts. The Minister stated that the indications as to their collaborative involvement had been known when the decisions to integrate them into the judiciary of the Land of Brandenburg, or their lifetime appointment, had been taken. The Minister of Justice subsequently declared that nine of the thirteen judges had performed their military service with the Felix Dzerzhinsky guards regiment affiliated with the Ministry of State Security, while the four others had been secret informants (informelle Mitarbeiter), as had the public prosecutor. 7. The background to the case and its procedural history, notably the proceedings for interim measures before the domestic courts by which the applicant sought to obtain certain information on the thirteen judges and the public prosecutor, are described in detail in the Court’s decision on the applicant’s previous application (see Saure v. Germany (dec.), no. 78944/12, §§ 3-29, 25 August 2015). That application, which had been lodged on 10 December 2012 against the decisions taken by the domestic courts in the proceedings for interim measures, was considered premature by the Court and declared inadmissible for non-exhaustion of domestic remedies because the applicant’s constitutional complaint concerning the main proceedings was still pending before the Federal Constitutional Court (ibid., §§ 37-53). The present application was lodged in respect of the main proceedings, following the rejection of that constitutional complaint. PROCEEDINGS AT ISSUE
8. On 15 August 2011 the applicant lodged an application for disclosure of the following information against the Land of Brandenburg with the Potsdam Administrative Court, which corresponded verbatim to the request he had made and continued to pursue in the then ongoing proceedings for interim measures (see Saure, cited above [no. 78944/12], § 11):
“(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 are currently dealing with, or have dealt with in the last twenty-one years, ‘proceedings concerning wrongful acts committed by the GDR’ (‘Verfahren zur Aufarbeitung von DDR-Unrecht’), and/or with ‘restitution proceedings under the Property Act’ (‘Restitutionsverfahren nach dem Vermögensgesetz’) and/or ‘GDR rehabilitation proceedings’ (‘DDR Rehabilitierungsverfahren’)?”
9. By a decision of 28 October 2011 the Berlin-Brandenburg Administrative Court of Appeal, in the proceedings for interim measures brought by the applicant (see Saure, cited above [no. 78944/12], §§ 17-21), ordered that the following information be disclosed:
“(i)  How many of the nine judges serving in ordinary courts are currently serving in civil or criminal courts and at what level of jurisdiction? (ii)  In which specialised courts are the other four judges serving and at what level of jurisdiction? (iii)  How many of the thirteen judges concerned have, over the past twenty-one years, dealt with proceedings concerning restitution of property under the Property Act or proceedings governed by the Criminal Rehabilitation Act (Strafrechtliches Rehabilitierungsgesetz)?”
It dismissed the remainder of the applicant’s appeal. 10. On 6 December 2011 the Brandenburg Ministry of Justice disclosed the following information. 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; four judges dealt with civil cases, four dealt with criminal cases and one dealt with both civil and criminal matters. The four judges serving in specialised courts dealt with administrative law, labour law and social law and were all serving at courts of first instance. Subsequently, this disclosure was supplemented by a statement that of these four judges, two were serving at administrative courts, one sat in a labour court and one sat in a social court. Six of the thirteen judges had previously been involved in restitution proceedings under the Property Act or proceedings governed by the Criminal Rehabilitation Act. 11. In the main proceedings before the Potsdam Administrative Court leading to the present application, both parties subsequently declared part of the matter resolved, notably in respect of part of the applicant’s fourth question, resulting in the discontinuation of the proceedings in this regard. The applicant’s request for disclosure, as presented to the Administrative Court at the time of its judgment of 3 December 2013, read as follows:
“(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’ (‘Verfahren zur Aufarbeitung von DDR-Unrecht’)?”
12. The Administrative Court dismissed the application for disclosure. It reproduced the reasoning of the Administrative Court of Appeal’s decision of 28 October 2011 in its entirety in so far as that court had dismissed the applicant’s appeal (see paragraph 9 above), endorsed it and added some considerations as to the balancing exercise it had performed itself. As to the first question of the applicant’s information request, the Administrative Court considered that he was not entitled to disclosure of the information sought, that is to say, incriminating findings in respect of the thirteen judges and one public prosecutor who were currently serving in the Brandenburg judiciary and for whom there were indications that they had previously collaborated with the GDR Ministry of State Security. Firstly, while the prerequisites for a request under section 5(1) of the Brandenburg Press Act (see paragraph 29 below) were met, he could not base a request on that provision because the provisions of the Stasi Records Act (Gesetz über die Unterlagen des Staatssicherheitsdienstes der ehemaligen Deutschen Demokratischen Republik) were lex specialis where the disclosure sought concerned records of the State Security Service of the former GDR (first sentence of section 43 and first sentence of section 4(1) of the Stasi Records Act, see paragraph 30 below). This conclusion was confirmed by section 29(1) of the Stasi Records Act, according to which personal information transmitted by the Federal Commissioner could, as a rule, only be used for the purposes for which it had been transmitted (see paragraph 30 below). In the present case, this purpose was assessing whether the individuals concerned could be integrated into the Brandenburg judiciary. There was no exemption from that rule that would allow disclosure of such information to the press. Secondly, the applicant could not rely on sections 32 and 34 of the Stasi Records Act (see paragraph 30 below), irrespective of whether the requirements of those provisions were met, as such a request would be directed against the Federal Commissioner rather than the Land of Brandenburg. Thirdly, the applicant had failed to prove that he was entitled to disclosure of the information under the Brandenburg Information Act (Brandenburgisches Akteneinsichts- und Informationsgesetz, see paragraph 28 below) or Article 21 § 4 of the Constitution of the Land of Brandenburg (see paragraph 27 below). In any event, the provisions of the Stasi Records Act were also lex specialis in relation to claims under these provisions and prevented disclosure. 13. Fourthly, the applicant could not rely on the first sentence of Article 5 § 1 of the Basic Law (see paragraph 26 below) as the right to freedom of information (Informationsfreiheit) only gave a right to obtain information from sources that were intended to be generally accessible. That was not the case with regard to the information sought by the applicant. In so far as the applicant submitted that the law had changed and files held by the authorities were “generally accessible” following the entry into force of the Federal Freedom of Information Act (Informationsfreiheitsgesetz des Bundes), the court noted that the scope of the right to freedom of information under the Basic Law remained unaffected by this development. A request based on the Federal Freedom of Information Act was, in any event, ruled out as the provisions of the Stasi Records Act were lex specialis. Lastly, the applicant was not entitled to disclosure of the requested information based on the freedom of the press guaranteed by the second sentence of Article 5 § 1 of the Basic Law, which he had not even invoked, since the scope of that right did not extend to the opening up of a source of information which was not generally accessible (Eröffnung einer Informationsquelle). 14. As to the first part of the applicant’s second and third question – regarding the names of the judges and public prosecutor – the Administrative Court found that he was not entitled to disclosure of the requested information either. The prerequisites for a request under section 5(1) of the Brandenburg Press Act were met, but the respondent was entitled to refuse disclosure of the information in accordance with section 5(2)(3) of that Act (see paragraph 29 below). Disclosure of the names would affect the right to protection of personality rights (allgemeines Persönlichkeitsrecht) of the individuals concerned, and their interests outweighed the interests of the applicant as a journalist and the public in disclosure of the names of the judges and public prosecutor for whom there were indications that they had previously collaborated with the Ministry of State Security of the former GDR, despite the significance of the requested disclosure for the work of the press in a democratic society. 15. Reiterating that there was no general rule that priority be accorded in the event of a conflict between the aforementioned constitutional rights, the Administrative Court considered, as regards the interests of the applicant as a journalist and the public in disclosure of the impugned information, that a free and independent press was of particular significance in a democratic society. 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. In order to inform others, the media first had to be informed themselves. To that end, they needed to have access to the internal workings of administrations and the processes taking place there. It was, in general, for the press to evaluate and decide what it regarded as being information of public interest. Making 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. The mere possibility that a publication would violate personality rights was not sufficient for refusing the disclosure of information to the press. It was evident that there was a public interest in disclosure of the names of the judges and public prosecutor for whom there were indications that they had previously collaborated with the GDR Ministry of State Security. 16. On the other hand, the Administrative Court considered that disclosure would interfere with the right of the judges and public prosecutor to informational self-determination, that is to say their authority to themselves decide when and within which boundaries facts and circumstances of their personal lives were to enter the public domain, and would have severe consequences. They would be stigmatised, their work would be closely watched by the public and there was a risk that their current and past decisions would be subject to public criticism solely because they had previously collaborated with the Ministry of State Security of the former GDR. Their reputation could be harmed, and they could possibly face hostile behaviour, both in their professional and personal life. As the matter concerned only fourteen people and the applicant worked as a journalist for a newspaper with a large circulation, the potential publication of the individuals’ names could be expected to have a considerable impact. Moreover, even though the individuals concerned held particularly important positions, they had never sought public attention and had kept a low profile since being integrated into the Brandenburg judiciary after the reunification of Germany. The information request did not concern professional conduct in relation to their current functions. Furthermore, the potential collaboration with the Ministry of State Security of the former GDR, which the persons concerned had not concealed when their applications had been assessed, had occurred more than twenty years earlier, and they had undergone background checks by the committees for the selection of judges and public prosecutors. These committees had examined applications on a case-by-case basis, assessing the nature and scope of the collaboration with the Ministry of State Security, the severity of the harm that could have been caused, the reasons for the commencement and discontinuation of the collaboration, the age of the person concerned as well as the intended function within the judiciary. In accordance with the relevant guidelines, persons whose collaboration with the GDR Ministry of State Security had exceeded the official duties imposed on them had not been appointed to the Brandenburg judiciary. Whether or not it was reasonable that an individual be part of public service had been determined based on his or her function within the GDR Ministry of State Security and his or her conduct after the end of the collaboration. In the select cases in which judges and public prosecutors had been integrated into the Brandenburg judiciary despite indications or evidence of their prior collaboration with the GDR Ministry of State Security, such collaboration had been determined as not to have been so severe that it opposed their integration into the Brandenburg judiciary. That decision taken by the Land of Brandenburg more than twenty years earlier placed the Land, as the employer, under an obligation not to disclose their identity, at least if there was no professional misconduct. 17. As to the second part of his second and third question – regarding where the judges and public prosecutor were serving – the Administrative Court found that the applicant was not entitled to disclosure of more information than what he had already received. It essentially relied on the consideration that, depending on where the individuals concerned served, it was likely that they would be identified, even if the information were disclosed in an anonymised form, given the small number of judges and public prosecutors working in certain places. This would notably be the case if the public prosecutor were employed at the Brandenburg Prosecutor General’s Office. In view of the information released so far and the wording of the applicant’s information request, the public prosecutor was male and there were only eight male public prosecutors at that office who could be concerned. Against this background, the applicant was not entitled to know whether the individual concerned worked at the Prosecutor General’s Office or at one of the four public prosecutor’s offices in Brandenburg. For similar considerations, it was not possible to disclose where the judges concerned were currently serving while ensuring their anonymity: if they served at one of the courts with a small number of judges, it was likely that they would be identified, also bearing in mind additional aspects which could lead to their identification, such as their age or whether they had been citizens of the GDR. 18. As regards the applicant’s fourth question, as presented to the Administrative Court at the time of its judgment, that is, limited to the question of which of the thirteen judges concerned had previously dealt with or were currently dealing with “proceedings concerning wrongful acts committed by the GDR” (see paragraph 11 above), the Administrative Court endorsed the reasoning of the Administrative Court of Appeal in its decision of 28 October 2011 (see paragraph 9 above), which had found that this request was too vague as it was not possible to determine on which types of proceedings the applicant sought to obtain information. 19. The Administrative Court added that the applicant was not entitled to receive the requested information under Article 10 of the Convention either. Lastly, there were no indications that his procedural rights, including the right to a fair trial, had been infringed by the fact that the judges concerned were serving in the Brandenburg judiciary, contrary to his allegation to that effect. 20. On 15 January 2014 the applicant lodged a request for leave to appeal. 21. By an order of 23 September 2014 the Berlin-Brandenburg Administrative Court of Appeal dismissed the applicant’s request for leave to appeal. It rejected his submissions expressing doubts as to the correctness of the Administrative Court’s judgment, which related to the alleged wrongful application of domestic law. The Court of Appeal’s decision was served on the applicant’s counsel on 26 September 2014. 22. In his constitutional complaint of 24 October 2014, the applicant alleged a violation of his rights under the first and second sentence of Article 5 § 1 of the Basic Law, his right to be heard and Article 10 of the Convention. 23. By an order of 11 December 2015 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint for adjudication (no. 1 BvR 2838/14), without providing reasons. The decision was served on the applicant’s counsel on 31 December 2015. EVENTS OUTSIDE THE SCOPE OF THE PROCEEDINGS AT ISSUE
24. On an undisclosed date, the applicant turned to the Federal Commissioner. He requested access to the records held and to be allowed to consult its files documenting the processing of the requests by the Brandenburg Ministry of Justice. No further information on the outcome of these requests was provided by the parties. 25. Following another query by the applicant, the authorities of the Land of Brandenburg provided him with the following information in July 2016. Since December 2011 one judge had dealt with proceedings concerning restitution under the Property Act or proceedings governed by the Criminal Rehabilitation Act. Three of the thirteen judges concerned had in the meantime retired. RELEVANT LEGAL FRAMEWORK AND PRACTICE
26. Article 5 of the Basic Law reads, in so far as relevant, as follows:
Article 5
“(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.
...”
27. Article 21 of the Constitution of the Land of Brandenburg reads, in so far as relevant, as follows:
“... (4)  Every person shall have the right under law to inspect files and other official documents maintained by the authorities and administrative institutions of the Land and the municipalities, provided that there are no overriding public or private interests to the contrary.”
28. The relevant provisions of the Brandenburg Information Act (Akteneinsichts- und Informationszugangsgesetz des Landes Brandenburg) read, in so far as relevant, as follows:
Section 1
“Every person shall have the right, in accordance with this Act, to consult files, provided that there are no overriding public or private interests under sections 4 and 5, or other legal provisions contain sector-specific regulations applicable to an unlimited group of persons.”
Section 4
“... (3)  The obligation to comply with statutory confidentiality obligations, to maintain professional secrecy or to protect special official secrets that are not based on statutory regulations shall remain unaffected.”
Section 5
“(1)  Subject to the second sentence and subsections (2) and (3), an application to consult records shall be refused if:
1.  this involves the disclosure of personal data, unless the party directly affected has consented to the disclosure of the data or the disclosure is permitted by another legal provision;
... The right to consult records may be granted in so far as, on account of the particular circumstances of an individual case and in the light of the purpose of assuring participation in political processes, the interest of the person filing the request in obtaining disclosure outweighs the interest of the person affected in having this information kept confidential. Section 4(3) shall apply mutatis mutandis.
...”
29. Section 5 of the Brandenburg Press Act (Brandenburgisches Pressegesetz) provides, in so far as relevant, as follows:
“(1)  The authorities are under an obligation to disclose to representatives of the press information which serves the fulfilment of their public duties. (2)  Disclosure of information may be refused if and in so far as:
1.  the proper conduct of pending proceedings may be frustrated or jeopardised;
2.  regulations concerning the secrecy of such information preclude it;
3.  an overriding public interest or private interests meriting protection would be violated; or
4.  the scope of the information being sought exceeds what can reasonably be expected.
...”
30. The provisions of the Stasi Records Act (Gesetz über die Unterlagen des Staatssicherheitsdienstes der ehemaligen Deutschen Demokratischen Republik) read, in so far as relevant, as follows:
Section 2
“(1)  The Federal Commissioner ... shall register, store, manage and use the records of the State Security Service in accordance with this Act.
...”
Section 4
“(1)  Governmental and non-governmental bodies shall have access to the records and may only use them in accordance with this Act. If persons concerned, third parties, close relatives of missing or deceased persons, employees or beneficiaries of the State Security Service voluntarily and of their own accord make records available that provide information regarding themselves, these records may also be used for the purposes for which they have been made available.
...”
Section 29
“(1)  Personal information transmitted in accordance with sections 19 to 23, 25 and 27 may only be processed and used for the purposes for which it has been transmitted. It may only be used for other purposes if the requirements pursuant to sections 20 to 23 and 25 are met. (2)  The consent of the Federal Commissioner shall be required if, pursuant to the second sentence of subsection (1), personal information regarding persons concerned or third parties is to be processed or used for another purpose. (3)  Subsections (1) and (2) shall apply mutatis mutandis to personal information in the records which, pursuant to section 8(2), shall remain with public bodies.”
Section 43
“The provisions of this Act shall take precedence over provisions concerning the permissibility of transmitting personal data set out in other acts ...”
Sections 20 to 23 and 25 of the Act do not concern information requests by the press. Sections 32 to 34 of the Act concern use of the records for political and historical analysis as well as in the press, broadcast media and film and specify the circumstances under which the Federal Commissioner may make certain records available for these purposes. According to the Government, in administrative practice 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. This type of disclosure may under certain circumstances still be covered by the original purpose pursued by the transmission of the records. In practice, the body requesting such information, for example a municipal representative body, informs the public of the results achieved by the background checks for its institution and also states, in a summary manner, its assessment of the records. The question of whether or not such a statement of position is permissible primarily concerns the legal relationship between the requesting body and the persons regarding whom a background check was performed, with employers having a duty of care towards their employees. 31. Under section 198(1) of the Courts Constitution Act (Gerichtsverfassungsgesetz), a party to proceedings who suffers a disadvantage as a result of protracted proceedings is entitled to reasonable compensation. A prior complaint of undue delay (Verzögerungsrüge), which has to be raised before the same court, is a prerequisite for a subsequent compensation claim. 32. In 2010 a committee of inquiry of the Parliament of the Land of Brandenburg tasked with “studying the history and managing the consequences of the dictatorship of the Socialist Unity Party [of the former GDR] and the transition into a democratic state governed by the rule of law in the Land of Brandenburg” (Aufarbeitung der Geschichte und Bewältigung von Folgen der SED-Diktatur und des Übergangs in einen demokratischen Rechtsstaat im Land Brandenburg) commissioned a study on the theme of “human resources policy – between continuity and change of elites” from Professor R. Will, a law professor at Humboldt-University in Berlin. In 2012 Professor Will presented a report entitled “Human Resources Policy in the Civil Service of the Land of Brandenburg as Exemplified by the Staffing Changes among Judges and Public Prosecutors” (Personalpolitik im öffentlichen Dienst des Landes Brandenburg am Beispiel des personellen Umbruchs im Bereich der Richter und Staatsanwälte) to the committee of inquiry. The report examined the situation of ninety-seven judges and seventy-five public prosecutors who had previously worked in the judiciary of the former GDR and who were still serving in the judiciary of the Land of Brandenburg at the time the report was written. It concluded that the Land of Brandenburg had assessed the integration of judges and public prosecutors who had worked in the former GDR into the judiciary of the Land of Brandenburg on a case-by-case basis and that there had been very limited flaws in the procedure. Grounds for excluding an individual’s integration into the judiciary of the Land of Brandenburg had been applied in a consistent manner, with relevant justifications provided in respect of the three cases in which deviations had been made. It was ensured that all those who had systemically contributed to the politically motivated case-law of GDR courts were excluded. The report described, in an anonymised form and by way of example, individual cases of judges and public prosecutors who had been integrated into the judiciary of the Land of Brandenburg, including excerpts from the files, information provided by the Federal Commissioner, minutes of interviews prior to their appointment, decisions by the Minister and records of the sessions of the committees for the selection of judges. It contained information on the involvement of nine individuals with the GDR Ministry of State Security. THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
33. The applicant complained under Article 10 of the Convention about the domestic courts’ refusal to order the Ministry of Justice of the Land of Brandenburg to provide him with certain information he had requested concerning judges and a public prosecutor for whom there were indications that they had previously collaborated with the Ministry of State Security of the former GDR. Article 10 of the Convention, in so far as relevant, reads 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.”
AdmissibilityThe parties’ submissions

(a)   The Government
34. The Government submitted that there had been no interference with the applicant’s rights under Article 10 of the Convention. His information request did not satisfy the criteria mentioned in Magyar Helsinki Bizottság v. Hungary ([GC], no. 18030/11, 8 November 2016), notably the “purpose of the request” and the “nature of the information sought” criteria. The domestic authorities had already made available most of the information which he had requested, including information as to incriminating findings in respect of judges and public prosecutors who had been integrated into the judiciary, the number of individuals concerned and the courts and levels of court at which the judges served, and the fact that some of them – with the specific number being provided – had dealt with restitution or rehabilitation proceedings. A public debate on the matter was possible based on that publicly available information. The applicant had not indicated why the names of the individuals concerned were necessary for his research or of particular interest to the public. The Government added that the criteria mentioned in Magyar Helsinki Bizottság were not exhaustive. All circumstances of a given case had to be taken into account. In the present case, this included the consequences for the reputation of the individuals concerned in the event of disclosure of the requested information. (b)   The applicant
35. The applicant asserted that, without being given access to the requested information, he, a well-known journalist who had previously published articles on German history, was unable to perform his role as a “public watchdog”. He was prevented from adequately informing the public and contributing to a debate of paramount public interest, which involved questions as to the integrity of judges and public prosecutors serving in the Land of Brandenburg and whether they had rendered improper decisions when assessing claims by victims of the former GDR concerning restitution, rehabilitation and compensation. The disclosure of certain information in an anonymised form had not satisfied his information request. He needed to know the names of the individuals and where they served in order to do research concerning the decisions they had taken, in particular in proceedings concerning restitution and rehabilitation of victims of the GDR regime. The real reason why the authorities had not disclosed the requested information was that they were afraid of a scandal.

Outcome for Article 10: violation