All agricultural and forest land transactions in Austria required approval by local and regional authorities (in the Tyrol, the Tyrol Real Property Transactions Commission), the aim being to preserve land for agriculture and forestry and avoid the proliferation of second homes. The applicatant association was formed to promote sound agricultural and forest property ownership and sought from the Tyrol Commission (in anonymised form and against reimbursement of costs) all decisions it had issued since 1 January 2000. It relied upon the Tyrol Access to Information Act and submitted that the Commission’s decisions concerned civil rights within article 6 of the Convention, and should therefore be made public (para 8). The Commission based its refusal on submissions that the decisions were not information within the Act, but decisions on the basis of legal arguments, comparable to giving legal advice, as well as on an exemption in the Act for situations where excessive resources would be required to provide the information sought.
The Austrian Constitutional Court had rejected the association’s complaint. It held first that neither under article 10 nor under Austrian law was there any positive duty of states to collect and disseminate information of their own motion. Secondly, it accepted the Commission’s case that the compilation, anonymisation and disclosure of paper copies of decisions over a period of some years fell outside any duty to disclose information under the Act and would excessively impinge on the Commission’s performance of its duties. Thirdly, it added that, in so far as the applicant might ‘implicitly’ be relying on article 6, the Strasbourg case law did not guarantee the right to obtain anonymised decisions over a lengthy period, and Austrian law only required access to the judgments delivered by the highest courts which dealt with important legal issues.
Before the European Court of Human Rights, First Section, the application was addressed under the heading of article 10. But the applicant’s case was that ‘decisions of judicial bodies such as the Commission should be publicly accessible’ (para 28) and that ‘interests in the rule of law and due process argued in favour of making decisions by judicial authorities available to the public’. The Austrian Government’s case was, first, that article 10 imposes no positive obligation on a state to collect and disseminate information itself, second, that a refusal to provide anonymised copies of all decisions over a lengthy period did not in any event constitute an interference with rights under article 10, and, third, that a right to be provided with such decisions could not be inferred from article 6. Finally, it also argued that, if article 10 was engaged, the refusal was justified, as serving legitimate aims (protection of confidential information and preservation of the Commission’s proper functioning).
Held: (First Section) The Court cited previous jurisprudence establishing the social ‘watchdog’ role of the press and other non-governmental organisations like the applicant gathering information, and then added: ‘Consequently, there has been an interference with the applicant association’s right to receive and to impart information as enshrined in article 10(1) of the Convention.’
Citations:
39534/07 – Chamber Judgment, [2013] ECHR 1204, [2013] ECHR 1225, [2013] ECHR 1270
Links:
Statutes:
European Convention on Human Rights 6 10
Jurisdiction:
Human Rights
Citing:
Legal Summary – Osterreichische Vereinigung Zur Erhaltung, v Austria ECHR 28-Nov-2013
ECHR Article 10-1
Freedom to impart information
Freedom to receive information
Refusal by regional authority to provide copy of its decisions to an association wishing to study the impact of . .
Cited by:
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Lists of cited by and citing cases may be incomplete.
Human Rights
Updated: 07 October 2022; Ref: scu.518843