Human Rights Committee

Decision adopted by the Committee under the Optional Protocol, concerning communication No. 3708/2020 * , **

Communication submitted by:W.K. (represented by the Center for Law and Democracy)

Alleged victim:The author

State Party:Germany

Date of communication:30 June 2019 (initial submission)

Document reference:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State Party on 11 February 2020 and 8 February 2022 (not issued in document form)

Date of adoption of decision:16 March 2026

Subject matter:Denial of access to ministerial opinions

Procedural issues:Exhaustion of domestic remedies; same matter – another procedure of international investigation or settlement; substantiation of claims

Substantive issues:Access to information; freedom of expression and opinion

Article of the Covenant:19

Article of the Optional Protocol:5 (2) (b)

1.The author of the communication is W.K., a national of Germany. He asserts that the State Party has violated his rights under article 19 of the Covenant. The Optional Protocol entered into force for the State Party on 25 November 1993. The author is represented by counsel.

Facts as submitted by the author

2.1The author is a human rights activist and has advocated for the right to information in the Free State of Bavaria in Germany. The Bavarian Constitution guarantees the right to submit petitions to the Bavarian Parliament. On 25 October 2007, the author submitted such a petition (“first petition”), requesting that the Bavarian Parliament adopt certain recommendations made by the Commissioner for Human Rights of the Council of Europe in a report of 11 July 2007. In the first petition, he also raised concerns regarding other matters of public interest, including the independence of the judiciary, access to information and the practices of German youth welfare officers.

2.2On 12 June 2008, the Parliamentary Committee on Constitutional, Legal and Parliamentary Questions denied the first petition. According to the notice of denial, the Parliamentary Committee had obtained opinions on the petition from the Bavarian State Ministries of Justice and the Interior. Based on those opinions, the Committee concluded that there was no reason to implement the recommendations proposed by the author. The Committee did not provide other reasons and did not describe the opinions of the two ministries.

2.3In a letter of 8 August 2008, the author requested the Bavarian Parliament to grant him access to the aforementioned ministerial opinions. On 25 August 2008, the Bavarian Parliament denied the request on the ground that there was no right to access documents relating to the petition procedure. According to the notice of denial, the Parliamentary Committee only shared ministerial opinions on a discretionary basis.

2.4The author then sent letters to the Ministry of Justice and the Ministry of the Interior, requesting access to their respective opinions on his petition. Both ministries deferred to the decision of the Bavarian Parliament and denied the author’s requests.

2.5On 25 March 2009, the author sent a second petition in which he requested the Bavarian Parliament to adopt a state law on the right to information. After soliciting an opinion from the Ministry of the Interior, a committee of the Bavarian Parliament rejected the author’s second petition. It chose to include the ministerial opinion in its response to the author. According to the ministerial opinion, a state law on the right to information was not necessary, and the adoption of one was not required by domestic or international law.

2.6On 13 December 2011, in a letter to the Bavarian Parliament, the author again requested access to the ministerial opinions concerning the first petition. In its response, the Bavarian Parliament stated that its rules of procedure did not provide for a right to access files on petitions. It also noted that the relevant committee had already decided against establishing a law on the right to information in Bavaria.

2.7On 14 July 2012, the author filed a complaint against the Bavarian Parliament to the Bavarian Administrative Court concerning access to the opinions on the first petition. On 13 June 2013, the Administrative Court dismissed the complaint in a reasoned decision.

2.8On 25 July 2013, the author appealed against the latter decision (concerning the first petition) to the Higher Administrative Court of Bavaria. On 14 February 2014, the appeal was denied in a reasoned decision. On 13 March 2014, the author filed for leave to appeal before the Federal Constitutional Court. On 13 January 2016, the application was rejected as inadmissible. The author maintains that he has exhausted domestic remedies.

2.9On 8 March 2016, the author lodged an application to the European Court of Human Rights concerning the refusal of the Bavarian Parliament to grant access to the requested opinions on his first petition. On 23 June 2016, the Court declared the application inadmissible.The decision of the Court was communicated in a letter dated 30 June 2016.

2.10With reference to the timeline of the proceedings, the author maintains that he has not abused the right of submission. It took several years for him to access domestic channels because of a lack of clear procedures for making access to information requests. He lodged a timely application to the European Court of Human Rights one month after the Federal Constitutional Court denied his appeal regarding the first petition. After the denial of that application, the author submitted an initial complaint to the Human Rights Committee on 8 May 2018. On 17 May 2018, that complaint was rejected without registration because it did not meet preliminary criteria. Thereafter, the author obtained legal counsel and submitted a more detailed complaint on 30 June 2019, three years after the date of the letter of the European Court of Human Rights (30 June 2016).

Complaint

3.1The author claims that, by denying him access to the two ministerial opinions concerning his first petition to the Bavarian Parliament, the State Party violated his rights under article 19 of the Covenant.

3.2Separately, article 19 of the Covenant was also violated when the Bavarian Parliament denied the author’s second petition, in which he had requested the adoption of a state law in Bavaria on the right to information. Bavaria lacks a comprehensive legal framework for access to information. Instead, it has a patchwork of provisions in other laws that offer some limited procedural options for requesting access to government documents.

3.3The right to information under article 19 of the Covenant applies to all public authorities, extends to all persons and covers all records held by a public body.Not only journalists but also individuals may exercise a “watchdog” role on matters of legitimate public concern. The right to information applies regardless of whether the person requesting it can demonstrate a direct interest in the information.In any case, the author had a direct interest in the information. As demonstrated by his personal webpages, he serves as a watchdog on human rights issues in Bavaria and regularly publishes posts concerning matters of public interest, including the right to information.

3.4The State Party did not meet its positive obligation to adopt a general law on the right to information that meets the requirements of international law.Alternately, at a minimum, States must have a specific legal framework establishing clear and appropriate procedures for requesting information; the State Party did not have one, to the detriment of the author.

3.5The authorities did not specify substantive reasons or any potential harm that justified the denial of the author’s request to access the ministerial opinions. He could not appeal to an independent administrative appeal mechanism.

3.6The decision not to disclose the ministerial opinions was not provided by law or necessary or proportionate to a legitimate interest specified by the State Party. Parliamentary rules of procedure cannot be considered a “law”. The public has an interest in knowing the views of ministries in relation to the issues that the author raised in his petition, including independence of the judiciary and access to information.

3.7As remedies, the author requests declarations that the State Party violated article 19 of the Covenant, that rule 190 (3) of the rules of procedure of the Bavarian Parliament is not a justified restriction on the right to information, that the State Party must disclose the ministerial opinions in question or justify any non-disclosure, and that the State Party must ensure that Bavaria establishes a general legal regime for the right to information that meets various, specific criteria.

State Party’s observations on admissibility and the merits

4.1In its observations of 8 August 2022, the State Party maintains that the communication is inadmissible on three grounds. First, the author failed to exhaust domestic remedies in two respects. He could have lodged a constitutional complaint to the Bavarian Constitutional Court. The Bavarian Constitutional Court has ruled that it is possible for individuals to lodge such complaints.There are no indications that that remedy would not have had a reasonable prospect of success.

4.2The author also failed to contest the decisions of the two Bavarian ministries. He did not file a related complaint within the prescribed time limit of one year. His constitutional complaint only concerned the actions of the Bavarian Parliament, not the ministries.

4.3Second, the communication is inadmissible because of the decision of inadmissibility of the European Court of Human Rights concerning the author’s first parliamentary petition. Although the Court did not specify in its decision the precise ground(s) of inadmissibility, its decision could have been based on the manifestly ill-founded character of the application.

4.4Third, the claim under article 19 of the Covenant is inadmissible and without merit because it is ill-founded. The restriction in question was lawful. Rule of procedure 190 (3) of the Bavarian Parliament is precisely worded and publicly accessible. It states that in matters concerning petitions, no access to documents shall, in principle, be granted. The Committee has already accepted that internal parliamentary regulations may constitute “law” within the meaning of article 19 (3) of the Covenant.

4.5The restriction was necessary to protect public order. The Committee has found that public order may include support for the effective and dignified operation of parliament and the safety and security of its members.Parliamentary autonomy is the basis of the effectiveness of parliament; it ensures that parliament can operate independently of other State authorities. Such autonomy means that parliament has the power to enact its own rules of procedure. Courts therefore have only limited scope to review internal rules of procedure of parliaments. Parliaments have a wide margin of appreciation when regulating internal affairs. One purpose of restricting the right of access to documentation is to protect the process of forming the will of parliament in committee. This process also covers decisions on petitions. The right of petition under article 17 of the Basic Law gives citizens the opportunity to submit their wishes. However, the petition procedure is purely legislative; it is not tantamount to a judicial or administrative procedure. Thus, the information rights that otherwise apply to administrative procedures do not apply to the petitions procedure. That procedure does not give petitioners any right to have their petition addressed in a specific way or to be told the final reasons for the eventual decision. Those matters are within the discretion of parliament, acting within the bounds of the Constitution. There is therefore no right to access the file of the petition, as it is neither useful nor necessary.

4.6In fact, the right of access to the petition file for third parties would jeopardize the performance of the parliamentary tasks of the committee responsible for dealing with a petition. If it did not have the opportunity for confidential deliberation, the committee would be unable to adequately conduct administrative oversight and mediate between authorities and petitioners in the relevant case.

4.7The restriction was appropriate and proportionate and went no further than necessary to safeguard the autonomy of parliament and the effectiveness of the petitions procedure. It was the least intrusive measure because it was limited to the petitions procedure. The form of the petition procedure is consistent with the rule of law and is not arbitrary.

4.8The Covenant does not establish an unrestricted right of access to information held by State institutions. It certainly does not require the regulation of access through a freedom of information act rather than through other statutes. Extensive access to official information is already guaranteed in Bavaria through provisions in special statutes. A general right of access to information is also guaranteed in Bavaria through article 39 of the Bavarian Data Protection Act. It provides grounds on which access to requested information may be limited, in conformity with article 19 (3) of the Covenant. Article 39 (4) (1) of the Act, read in conjunction with the second sentence of article 1 (1) of the Act, contains an exemption for the Bavarian Parliament that enables it to enact its own rules.

4.9Contrary to the author’s suggestion, it is possible to appeal to an independent body if an authority refuses to release information. In such cases, both administrative and judicial remedies are possible. An applicant may appeal at any time to the Bavarian Data Protection Commissioner, an independent supervisory authority. The Commissioner may object to the actions of an authority. Recourse to administrative courts is also available for disputes relating to article 39 of the Bavarian Data Protection Act. Release of simple information from registers and database is free of charge.

Author’s comments on the State Party’s observations on admissibility and the merits

5.1In his comments of 25 August 2023, the author asserts that he could not complain to the Bavarian Constitutional Court because he was not a resident of Bavaria during the relevant time. Rights under the Bavarian Constitution are only guaranteed for residents of Bavaria. The author demonstrated reasonable diligence when exhausting domestic remedies.

5.2Regarding the merits, concerns about autonomy cannot justify excluding a parliament from its obligations to respect the right to information, which includes a right to access information held by the legislative branch.

5.3The State Party misinterpreted the Committee’s jurisprudence on public order.In the author’s case, public order was not at issue. The goal of a petition is to allow the public transparent and open access to parliament to raise issues of public interest. Denying access incentivizes arbitrariness and undermines the procedure.

5.4The restriction was not necessary and was not the least restrictive means of protecting public order. There is no need for the secrecy of the petitions procedure. The proceedings of the European Parliament’s Committee on Petitions are open to the public. The Parliaments of Scotland, Portugal and Luxembourg all publish petitions and the main associated documents. In 2014, the authors of a report commissioned by the Bundestag in Germany recommended publishing ministerial opinions at the federal level.

5.5No law in Germany establishes a right to information in relation to parliament and other important entities. Article 39 of the Bavarian Data Protection Act does not cover the Bavarian Parliament and only guarantees a right to information when an applicant demonstrates a legitimate interest in the information, which the Munich Administrative Court stated the author lacked.

State Party’s additional observations

6.1In its further observations of 24 October 2023, the State Party maintains that the author could indeed have filed a complaint to the Bavarian Constitutional Court. Under article 120 of the Bavarian Constitution and article 33 (1) of the Basic Law, all Germans may file a constitutional complaint to the Bavarian Constitutional Court, regardless of whether they have a territorial link with Bavaria.

6.2The author also could have filed a petition under article 115 of the Bavarian Constitution, which gives all inhabitants of Bavaria the right to make written requests and complaints to the competent authorities or to the Bavarian Parliament. The right extends to anyone who has had any kind of contact with the authorities of Bavaria, under article 1 of the Bavarian Petitions Act.

6.3In any case, the Munich Administrative Court noted that the author had not filed a complaint to it within the one-year time limit prescribed by law to contest the rejection by the State ministries of his disclosure requests.

6.4Regarding the merits, restrictions on access to information about parliamentary processes are not unusual. The federal Freedom of Information Act does not require the federal Parliament (Bundestag) to disclose information relating to its parliamentary business. The federal Parliament only has a disclosure obligation insofar as it discharges administrative tasks under public law. Archives of the Bavarian Parliament may be consulted when certain criteria are met.

6.5Contrary to the author’s assertion, article 39 of the Bavarian Data Protection Act is the legal basis for the general right of access to information from Bavarian public authorities, even though no separate statute regulates that right. Thus, the right to access information is not confined to a series of special laws. Contrary to the author’s statement, there certainly is an independent oversight mechanism for that law (see para. 4.9 above).

6.6The principles that apply to administrative and parliamentary decisions are different. That is because of the nature of parliamentary processes, which involve free discussion among members, balancing of political interests, and free exercise of the mandate. Parliamentary committees that examine petitions may seek, but are not required to seek, the opinion of ministries. It is up to those parliamentary committees to decide on the substance of petitions and to decide the extent to which they will provide detailed justifications of their decisions.

6.7The opinion of the Ministry of Justice on the author’s first petition included comments concerning a family case, including a mother’s right to custody of her child. The author was not a party to those proceedings. The opinion of the Ministry of Justice included highly sensitive medical and personal data concerning the litigants.

6.8The ministerial opinions were internal information documents for the legislature, with a purely preparatory function. They served only to provide information and prepare the members of the Bavarian Parliament to take a decision on the merits. Because they were internal documents, the State Party was not obligated to inform the author of their content.

Additional submissions by the parties

Author

7.1In his additional comments of 13 December 2023, the author responds to the statements described in paragraph 6.7 above. His first petition indirectly referred to a custody case involving a mother whose website featured personal and medical information about herself and her son. Although the website is no longer active, archived versions include extensive information of that nature. It is unlikely that the opinion of the Ministry of Justice dealt exclusively or even primarily with the details of that case. In any case, the State Party’s argument does not resolve the breach of article 19 of the Covenant. It is unlikely that disclosure would have harmed a privacy interest. The opinion could have been redacted before release. Moreover, the State Party did not explain why it did not disclose the other opinion, from the Ministry of the Interior.

State Party

7.2In its additional observations of 9 February 2024, the State Party responds that the webpage of the mother in question is no longer available. Moreover, the Government was not obligated and could not be expected to examine the mother’s website to determine whether certain information had been published by her and could therefore be disclosed to the author, who had absolutely no connection to the mother’s case. Furthermore, the court decision contained health-related information concerning the mother’s minor child, which may not have been published and/or published lawfully (i.e. with the consent of the child’s other legal guardians).

7.3The remainder of the author’s arguments (regarding redaction, release of a separate ministerial opinion, etc.) disregard the fact that the petitions procedure is parliamentary. The release of certain sections or redacted sections of the ministerial opinions might have allayed concerns regarding third-party information contained therein. However, it would not have sufficiently safeguarded all of the concerns voiced during the discussions freely conducted among the members of the Bavarian Parliament and expressed in the votes of those who opposed the release of the opinions. Accordingly, the Bavarian Parliament was neither able nor under any obligation to provide the author with a (single) specific reason for the committee’s decision.

Issues and proceedings before the Committee

Consideration of admissibility

8.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

8.2Under article 5 (2) (a) of the Optional Protocol and the State Party’s reservation to that provision, the Committee is precluded from examining a matter that is being examined or has been examined under another procedure of international investigation or settlement.In 2016, the author lodged an application to the European Court of Human Rights concerning access to the ministerial opinions on his first petition to the Bavarian Parliament. In a single‑judge decision, the European Court of Human Rights declared the application inadmissible under articles 34 and 35 of the European Convention on Human Rights, without indicating whether that finding was based on procedural or substantive grounds. While noting the State Party’s position that the decision of the Court might have been based on substantive grounds, in the absence of a clear indication to that effect, the Committee cannot conclude that the same matter has been examined by the Court.Accordingly, the Committee considers that article 5 (2) (a) of the Optional Protocol and the State Party’s reservation thereto do not preclude its examination of the communication.

8.3The Committee notes the State Party’s position that the author did not, as required by article 5 (2) (b) of the Optional Protocol, exhaust all available domestic remedies before submitting the communication. Although there is no obligation to exhaust domestic remedies if they objectively have no prospect of success, authors of communications must exercise due diligence in the pursuit of available remedies and mere doubts or assumptions about their effectiveness do not absolve the authors from the obligation to attempt to exhaust them.The Committee recalls in that regard that the effectiveness of a remedy does not depend on the certainty of a favourable outcome for the author.Noting that the author does not claim to have pursued any domestic remedies against the denial by the Bavarian Parliament of his second petition, the Committee considers that aspect of the communication inadmissible under article 5 (2) (b) of the Optional Protocol.

8.4In relation to the first petition, the Committee notes the State Party’s argument that the author could have presented the substance of his claim before the Constitutional Court of Bavaria. The author unsuccessfully sought leave to file a complaint to the Federal Constitutional Court concerning access to the ministerial opinions. In Germany, State constitutional courts have jurisdiction to assess disputes that arise under their respective State constitution. Because the author’s claims relate specifically to the Bavarian Parliament and Bavarian legislation, the Committee considers that the Constitutional Court of Bavaria should have had the opportunity to examine the substance of the claim regarding the first petition. According to the author, that remedy was unavailable to him because he did not reside in Bavaria. Nonetheless, the Committee notes the State Party’s information that domestic law permits all nationals of Germany to file a constitutional complaint to the Bavarian Constitutional Court, even if they do not have a territorial link with Bavaria. While noting the author’s argument that he exercised due diligence in availing himself of domestic remedies, the Committee observes that he does not claim to have received a concrete indication from the State Party’s authorities that he could not submit a complaint to the Bavarian Constitutional Court. The author was able to file his parliamentary petitions and have them examined while residing outside of the country. In the light of the foregoing, the Committee considers that the author has not demonstrated that he exhausted available and effective domestic remedies to challenge his lack of access to the ministerial opinions and the legislative framework in Bavaria concerning the right to information. Thus, the Committee declares that the claims in relation to the first petition are inadmissible under article 5 (2) (b) of the Optional Protocol.

8.5In the light of its findings, the Committee does not deem it necessary to examine other grounds of inadmissibility.

9.The Committee therefore decides:

(a)That the communication is inadmissible under article 5 (2) (b) of the Optional Protocol;

(b)That the present decision shall be transmitted to the State Party and to the author.