STEDH de 28 de Noviembre de 2013, caso Österreichische Vereinigung Zur Erhaltung, Stärkung Und Schaffung Eines Wirtschaftlich Gesunden Land-Und Forst Wirtschaftlichen Grundbesitzes contra Austria
| Autor | José Miguel Hernández López |
| Cargo del Autor | Máster Universitario en Derechos Fundamentales |
| Páginas | 533-537 |
Page 533
Ver nota 4
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
24. The applicant association complained that its right to receive information had been violated as it was refused access to the decisions of the Tyrol Real Property Transactions Commission. The applicant association relied on Article 10, which reads as follows:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and 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
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The Government contested that argument.
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The Government had initially argued that the applicant association had not exhausted domestic remedies since it had failed to make use of an application under Article 138 §1(b) of the Federal Constitution in order to resolve the negative conflict of jurisdiction which resulted from the Administrative Court’s decision of 21 September 2006 and the Constitutional Court’s decision of 27 February 2007. As the applicant association subsequently requested that the Constitutional Court rule on that conflict of jurisdiction and obtained a decision by the Constitutional Court on the merits on 2 December 2011 (see paragraph 16 above), the Government withdrew their objection based on the non-exhaustion of domestic remedies.
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The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 §3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
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The applicant association asserted that Article 10 of the Convention required States, to a certain extent, to make information available to the public. In its view the decisions of
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judicial bodies such as the Commission should be publicly accessible. Given the possibilities of electronic data processing, the authorities could easily create an online information system providing access to the decisions of the Commission, while making provision for the protection of confidential data where necessary. Such a system, namely the Federal Legal Information System (Rechtsinformations-system des Bundes), existed at federal level and made decisions of the highest courts and various other courts and authorities available. Where such a system did not exist, the State should at least provide anonymised paper copies of decisions upon request. Regarding the Government’s argument that Austrian administrative law did not make provision for unrestricted access to files, the applicant association submitted that it had not requested access to files but rather the provision of decisions in anonymised form.
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In the applicant association’s view, such interference with its right to receive information could not be justified. It asserted that interests in the rule of law and due process argued in favour of making decisions by judicial authorities available to the public, while the interests of confidentiality could be protected by anonymising them. In response to the Government’s argument that granting the request would have demanded considerable effort, the applicant association criticised the fact that the Commission had not provided any figures indicating the number of decisions to be made available or the actual amount of time needed to provide anonymised copies.
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The Government argued that the Commission’s refusal to provide anonymised paper copies of all decisions issued since 1 January 2000 could not be...
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