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Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grundbesitzes v. Austria

Case number:
App No.39534/07
Country:
Austria
Date of decision:
28 November 2013
Court / Arbiter:
European Court of Human Rights ( International / ECHR )

Relevant law :
European Convention of Human Rights, Article 10 (freedom of expression), Article 13(right to an effective remedy) ( )

Decision:

Decision of the Tyrol Real Property Transactions Commission to refuse information request of an NGO constitutes interference within right to receive and impart information. The complete refusal and commissions choice to hold a monopoly on information, made it impossible for the applicant to carry out its task and is thus not justified as being “necessary in a democratic society” (para. 47)


Keywords:
Scope of information covered
Voluminous or complex request (including excessive resources required to search, retrieve)

Case details:

Facts

 

The applicant is an association that aims to study transfers of ownership of agricultural and forest land in order to assess impact of such transfers on society (para. 5). On 26 April and later on 18 July 2005 the association requested the Tyrol Real property Transactions Commission to provide  “by mail, all decisions issued since 1 January 2000” (para. 7). The Commission refused, alleging that the transmission of anonymized copies of its decisions “did not constitute information within meaning of section 1(2) of the Information Act” (para. 9). Moreover, the Commission claimed that providing information would require: “so many resources that the functioning of the authority would be affected” (para.9). The Administrative Court rejected the case on the ground that it lacked competence on complaints brought against the Commission decisions (para. 12). The Constitutional Court upheld the decision of the Commission.

The applicant referred the case to the ECHR

 

 

Decision

The court reiterated its position expressed in Társaság a Szabadságjogokért v. Hungary that NGOs “may be characterized as social “watchdogs” enjoying similar protection to that afforded to the press” (para. 34). The Court stated that the association wishing to obtain access to the decisions of the Commission was involved in the “legitimate gathering of information of public interest” (para. 36). Thus, the denial of access interfered with the right to receive and impart information enshrined under Article 10 (1) of the Convention.

Applying the three-part test of the Article 10 (2) the Court was persuaded that the decision was “prescribed by law” and served the legitimate purpose of protecting the rights of others”

While assessing the “necessity” element, the court drew a parallel to the level of scrutiny used to assess whether “authorities enjoying information monopoly interfered with the exercise of the function of a social watchdog” (para. 41). In this respect, to meet the threshold the refusal had to be “relevant and sufficient” (para. 42).

According to the court, the Commission is a public authority “deciding disputes over civil rights”, which is subject to considerable public interest. (para. 46)  Therefore the court found it striking that “none of the Commission’s decisions was published” (para.46) Thus the court concluded that the Commission “by its own choice”, was holding a monopoly over its decisions. Subsequently, the complete refusal to access the information based on the ground that it will require lengthy administrative procedures and resources was a consequence of the Commission’s choice “not to publish its decisions,” therefore making it impossible for the applicant to carry out its research (paras. 46-47).

The Court concluded that the reasoning applied by domestic authorities for refusing the request “though relevant- were not sufficient” (para. 47) and therefore violated Article 10 of the Convention. (para. 48).

Resources:

Judgment of the Court