CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 novembre 2022

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margin-left:11.6pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     THIRD SECTION CASE OF SAURE v. GERMANY (Application no. 8819/16)     JUDGMENT   Art 10 • Freedom to receive and impart information • Refusal, on national security grounds, of journalist’s unsubstantiated request for physical access to Foreign Intelligence Service files of which content disclosed, not instrumental for exercise of freedom-of-expression rights • Assessment of applicant’s request not fundamentally flawed or devoid of procedural safeguards • Wide margin of appreciation not overstepped   STRASBOURG 8 November 2022   FINAL   08/02/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Saure v. Germany, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Georges Ravarani , President, Georgios A. Serghides , María Elósegui , Darian Pavli , Anja Seibert-Fohr , Peeter Roosma , Andreas Zünd , judges, and Milan Blaško, Section Registrar, Having regard to: the application (no.   8819/16) 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 11 February 2016; the decision to give notice to the German Government (“the Government”) of the above application; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by the Centre for Democracy and the Rule of Law, who was granted leave to intervene by the Vice-President of the Section; Having deliberated in private on 27 September 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns the refusal to allow the applicant, a journalist, to get physical access and consult in person the files held by the German Foreign Intelligence Service ( Bundesnachrichtendienst ) on U.B., a former Prime Minister of the Land of Schleswig Holstein who had died in a hotel in Geneva, Switzerland, in 1987. The applicant relied on Article 10 of the Convention, claiming that, despite having received information on the content of the file outside the scope of the proceedings at issue, he had a right of physical access to the impugned files. Moreover, he argued that the proceedings by their nature called for particular expedition and alleged that the length of the proceedings also breached Article 6 of the Convention. THE FACTS 2.     The applicant was born in 1968 and lives in Berlin. The applicant was represented by Mr C. Partsch, a lawyer practising in Berlin. 3.     The Government were represented by represented by two of their Agents, Mr H.-J. Behrens and Ms K. Behr, of the Federal Ministry of Justice and Consumer Protection. 4.     The facts of the case may be summarised as follows. ADMINISTRATIVE PROCEEDINGS 5 .     By letter of 29 January 2012 the applicant requested the Foreign Intelligence Service to allow him to get physical access and to consult in person the files ( Akteneinsicht ), as well as to make copies of the documents, it held regarding several prominent persons, among whom Mr. U.B., a former Prime Minister of the Land of Schleswig-Holstein, who had died during the night of 10 to 11 October 1987 in the Beau Rivage hotel in Geneva, Switzerland. The applicant specified that he was interested, in particular, in the Service’s findings and investigations regarding the circumstances of U.B.’s death and rumours that U.B. had collaborated with the intelligence service of an Eastern European country and that he had been blackmailed by such service. He relied on section 5 subsection 8 in conjunction with section 5 subsection 1 of the Act on the Use and Preservation of Federal Archival Documents ( Gesetz über die Nutzung und Sicherung von Archivgut des Bundes - Bundesarchivgesetz , hereinafter “Federal Archives Act”, see paragraph 24 below), on Article 5 of the Basic Law and on case-law of the Federal Administrative Court. The applicant did not explain why he needed physical access to the said files. 6 .     On 21 December 2012 the Foreign Intelligence Service denied the applicant’s request. The requirements under the Federal Archives Act were not met. The documents did not date from more than thirty years ago and filing the documents with the Federal Archives, for the purposes of shortening the period during which the information was classified, was not possible as the Service still needed the files concerned. 7 .     On 26 March 2013 the Foreign Intelligence Service rejected the applicant’s administrative appeal ( Widerspruch ) insofar as it concerned the consultation of the files in person. The appeal was ill-founded insofar as he sought to rely on section 5 subsection 8 in conjunction with section 5 subsection 1 of the Federal Archives Act. The files were held by the Foreign Intelligence Service, not by the Federal Archives, and only files older than thirty years that were held by the Service could be consulted in accordance with these provisions. This requirement was not met as the files at issue relating to U.B. dated from 1991 to 1995. The provisions concerning a shortening of the period of closure ( Schutzfrist ) concerned files that were held by the Federal Archives themselves as well as files which continued to be subject to closure even after the expiry of the thirty-year period. The appeal was inadmissible insofar as the applicant sought to rely on Article 5 § 1 of the Basic Law in order to be allowed to consult the files in person, given that no refusal decision on this request, which could form the subject of the appeal, had been taken yet. In this connection, the Service considered in the applicant’s favour that the development in the case-law of the Federal Administrative Court, which had found, by a leading judgment of 20   February 2013, for the first time, there to be a right of the press to receive information to be derived directly from Article 5 § 1, second sentence, of the Basic Law ( verfassungsunmittelbarer Auskunftsanspruch , see paragraph 23 below) was to be taken into account. However, that right was limited to receiving information ( Auskunftserteilung ) and did not encompass a right to consult files in person. 8.     At the same time, the Foreign Intelligence stated that the applicant’s request to receive information under Article 5 § 1 of the Basic Law was still being processed within the Foreign Intelligence Service, it being noted that the Federal Administrative Court’s judgment of 20 February 2013 had been delivered only very recently and that it was not yet available to the Service in writing. The Service stated that it would separately inform the applicant about its decision on his request to receive information. PROCEEDINGS BEFORE THE FEDERAL ADMINISTRATIVE COURT 9 .     On 26 April 2013 the applicant lodged an action with the Federal Administrative Court. Claiming that he was entitled to consult the files in person, the applicant submitted that the thirty-year period of closure provided for by the Federal Archives Act aimed at striking a balance between the freedom of information and privacy. In the light of the comprehensive publications on the death of U.B., a prominent politician, and continuing suspicions that he was murdered and that this murder was covered up by the German authorities, considerations relating to U.B.’s privacy were clearly outweighed by the interests of the press and the public in the information concerning the circumstances of his death. Taking into account the role of the press as a “public watchdog” and the paramount public interest in the information, the thirty-year period of closure was to be shortened in the present case. The applicant added that he was also entitled to consult the files in person on the basis of Article 5 § 1, first sentence, of the Basic Law; Article   5 § 1, second sentence, of the Basic Law; and Article 5 § 3 of the Basic Law (see paragraph 20 below). He emphasised that the right of the press to receive information may take the form of a right to consult files in person. 10 .     The respondent acknowledged, inter alia , that the right of the press to receive information from federal agencies, which derived directly from Article 5 § 1, second sentence, of the Basic Law, may, exceptionally, consolidate ( sich verdichten ) to become a right to consult files in person. However, the applicant had not made a substantiated submission in this respect, neither in the administrative proceedings nor before the Federal Administrative Court, and no grounds could be discerned for concluding that this exception applied in the present case. In particular, there were no grounds for concluding that the obligation to give access to the information in a complete and truthful manner could only be achieved by way of allowing the applicant to consult the files in person. 11 .     In his reply the applicant submitted, in respect of the right of the press to receive information under Article 5 § 1, second sentence of the Basic Law, that, in view of the voluminous scope of the files at issue, access to the information in a complete and appropriate manner could only be ensured by allowing him to consult the files in person. 12 .     By judgment of 27 November 2013 the Federal Administrative Court rejected the applicant’s action. It found that the applicant could not rely on the Federal Archives Act. He could not rely on its section 5, sub-section 1, directly because the said files were not “archived” within the meaning of that provision, as they continued to be with the Foreign Intelligence Service, not the Federal Archives. Section 5, sub-section 8, taken in conjunction with section 5, sub-section 1, of the Federal Archives Act only applied to files thirty years or older, which was not the case here: the Foreign Intelligence Service had credibly substantiated that its files on U.B. were less old and the applicant had not disputed this. As the wording of section 5, sub-section 8, of the Federal Archives Act was unequivocal and not open to any interpretation, it was not possible to shorten that period and sub-section 5, in particular, did not apply to the thirty-year period stipulated by sub-section 8. 13.     The Federal Administrative Court went on to find that the applicant did not have a right to consult in person the files at issue under Article 5 § 1, first sentence, of the Basic Law. The right to information ( Informationsfreiheit ) guaranteed by that provision did not apply, as the files at issue were not “publicly available sources” ( allgemein zugängliche Quellen ). This right did not entail having information held by the authorities made publicly available. 14 .     The Federal Administrative Court held that the applicant did not have a right to consult in person the files under Article 5 § 1, second sentence, of the Basic Law either. Referring to its leading judgment of 20 February 2013 in other proceedings (see paragraphs 7 above and 23 below), the court reiterated that a right of the press to receive information derived from Article   5 § 1, second sentence, of the Basic Law directly. This right reflected a minimum standard which the legislature – which had a wide margin of appreciation and the exclusive prerogative to adopt rules that may accord more weight to one or other of the competing interests – must not fall short of. It met its limit where the press’ interest in receiving information was opposed by legitimate interests of individuals or authorities. The scope of that right did, in general, encompass neither consulting in person files held by authorities nor making copies of such files ( umfasst grundsätzlich nicht eine Aktennutzung durch Einsichtnahme in Behördenakten oder eine Kopie von Behördenakten ). 15 .     Lastly, the Federal Administrative Court found that the applicant did not have a right to consult the files in person under Article 5 § 3 of the Basic Law. No right of the applicant to have his research work supported by being allowed to consult files in person could be derived from that provision. The judgment was served on the applicant’s counsel on 31 January 2014. DISCLOSURE OF INFORMATION OUTSIDE THE SCOPE OF THE PROCEEDINGS 16 .     Outside the scope of the proceedings at issue, the applicant, on 4   September 2013, four months after he had lodged his action with the Federal Administrative Court (see paragraph 9 above), relying on the right of the press to receive information ( presserechtlicher Auskunftsanspruch ) under Article 5 § 1, second sentence, of the Basic Law, requested the Foreign Intelligence Service to disclose information to him on the “scope of the Foreign Intelligence Service’s files on U.B., the reason for their creation and their content”. On 27 November 2013, the day of the oral hearing before the Federal Administrative Court, the applicant and the Foreign Intelligence Service reached an agreement in respect of the request of 4 September 2013, concluding that it be met outside the scope of the proceedings at issue. By letter of 16 December 2013, the Foreign Intelligence Service provided the applicant with a summary of the declassified information of the Foreign Intelligence Service regarding the circumstances surrounding the death of   U.B. The letter stated that the Service had never been charged with investigating the circumstances of the death of U.B.; it had received certain indications from different sources and transmitted these without delay to the competent investigative authorities. Some 5,100 pages of the files held by the Service had been identified so far as having at least a vague connection to the circumstances of U.B.’s death. The vast majority of the documents concerned a review of press articles, inquiries made towards the Service, correspondence with the competent investigative authority and speaking notes for Parliament. The letter listed twelve indications received by the Foreign Intelligence Service from November 1987 onwards; all but one of these indications had been transmitted to the competent public prosecutor’s office (the person who had given the one indication which was not transmitted had been contacted by the prosecution authorities several times already). At the applicant’s subsequent request, the Foreign Intelligence Service, on 11 February 2014, provided the applicant with information regarding the dates of transmission of the said indications to the competent public prosecutor’s office. THE PROCEEDINGS BEFORE THE FEDERAL CONSTITUTIONAL COURT 17 .     On 7 February 2014 the applicant lodged a constitutional complaint. The applicant argued that the Federal Administrative Court had not sufficiently taken his fundamental rights guaranteed by Article 5 § 1, first and second sentence, and Article 5 § 3 of the Basic Law into account when interpreting the provisions of the Federal Archives Act (see paragraphs 9 and   12 above). He further referred to this Court’s case-law on the right of access to information under Article 10 of the Convention, emphasising the role of the press as a “public watchdog”. The applicant moreover alleged that the Federal Administrative Court had breached his right to be heard by ignoring his submission that it was not credible that the Foreign Intelligence Service’s documents relating to U.B. dated from 1991 onwards, given that U.B. had died in 1987. The applicant did not raise further arguments before the Federal Constitutional Court nor did he mention in his constitutional complaint that information on the scope and content of the files held by the Foreign Intelligence Service on U.B. had been disclosed to him in the meantime (see paragraph 16 above). 18.     On 7 September 2015 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint for adjudication, without providing reasons (no. 1 BvR 546/14). The decision was served on the applicant’s counsel on 28 September 2015. THE APPLICANT’S SUBSEQUENT PUBLICATIONS 19.     On 4 February 2016 the applicant published an article in Bild , in which he reproduced some of the information disclosed to him by the Foreign Intelligence Service’s letters of 16 December 2013 and 11 February 2014. On   1 July 2016 the applicant published another article in Bild , stating that the Foreign Intelligence Service held 5,100 pages of files on U.B., which were kept confidential thus far and were meant to be kept secret after the lapse of a thirty-year period. RELEVANT LEGAL FRAMEWORK AND PRACTICE 20 .     Article 5 of the Basic Law ( Grundgesetz ) reads 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. (3)     Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.” 21 .     The Federal Act Governing Access to Information held by the Federal Government ( Gesetz zur Regelung des Zugangs zu Informationen des Bundes , “Freedom of Information Act”), as in force at the material time, provided, insofar as relevant, as follows: Section 1 “(1)     Everyone is entitled to access to official information from the authorities of the Federal Government in accordance with the provisions of this Act. ... (2)     The authority may furnish information, grant access to files or provide information in any other manner. Where an applicant requests a certain form of access to information, the information may only be provided by other means for good cause. In particular, substantially higher administrative expenditure shall constitute good cause. ...” Section 3 “The entitlement to access to information shall not apply ... 8.     with regard to the intelligence services and the authorities and other public bodies of the Federal Government, where these perform duties pursuant to Section 10, no. 3 of the Security Clearance Check Act.” 22 .     German Land press legislation ( Landespressegesetze ) provides for a right of members of the press to receive information under certain circumstances. According to the case-law of the domestic courts, this results in an entitlement of the press to obtain disclosure of the contents of the information available to the authority concerned. The right of the press to receive information does not, as a rule, encompass the right of the press to consult the files in person; however, the right of the press to receive information may, exceptionally, consolidate to become a right to consult files, if access to information in a complete and truthful manner can only be achieved that way (see Cottbus Administrative Court, no. 1 L 783/01, order of 15 January 2001; Dresden Administrative Court, no. 5 L 42.09, order of 7   May 2009, at para. 74 - juris). In a case in which the press sought to obtain a copy of written declarations by a Prime Minister of a Land concerning his past in the former German Democratic Republic, which were in his personnel file, the competent administrative court ordered the authority concerned to disclose the content of the said declarations (see Dresden Administrative Court, order of 7 May 2009, cited above). At the same time, the court found that there were no grounds for finding that the applicants’ right to receive the said information had consolidated to become a right to consult the personnel files, to which obtaining a copy of the impugned documents was akin (see   ibid., at para. 74). The applicants had not substantiated why the requested information could only be provided, in a complete and truthful manner, by way of allowing them to consult the files (idem). 23 .     In its leading judgment of 20 February 2013 (no. 6 A 2.12), the Federal Administrative Court found that Land press legislation was not applicable to the Foreign Intelligence Service because, pursuant to the Basic Law, the federal legislature had exclusive competence for matters relating to that Service, including the circumstances in which it had to or may disclose information to the public and the press. The federal legislature had not yet adopted a provision on the matter. Notably, the provisions governing access to information and related restrictions in the Freedom of Information Act (see paragraph 21 above) did not correspond to the specific needs and role of the press. Instead, the Federal Administrative Court found, for the first time, a right of the press to receive information to derive directly from Article 5 § 1, second sentence, of the Basic Law (see also Saure v. Germany (dec.), no.   6106/16, §§ 11-14, 19 October 2021). In adjudicating a constitutional complaint against that judgment of the Federal Administrative Court, the Federal Constitutional Court (no. 1 BvR 1452/13, order of 27 July 2015) considered that there were no indications of a violation of the right of freedom of the press as long as the specialised courts granted members of the press a right to receive information in relation to federal authorities which, in substance, did not fall short of the content of the right to receive information under Land press legislation (see also Saure , cited above, §§ 16-17). The Federal Administrative Court subsequently also held that the right of the press to receive information deriving from Article 5 § 1, second sentence, of the Basic Law directly must, in substance, not fall short of the content of the right to receive information under Land press legislation (see Federal Administrative Court, no. 6 C 65/14, judgment of 16 March 2016). 24 .     The Act on the Use and Preservation of Federal Archival Documents ( Gesetz über die Nutzung und Sicherung von Archivgut des Bundes – Bundesarchivgesetz, “Federal Archives Act” ), as in force at the material time, provided, insofar as relevant, as follows: Section 2 “(1)     The constitutional organs, authorities, and courts at the level of the Federation, the bodies corporate under public law, institutions under public law, and foundations under public law directly accountable to the Federal Government, as well as the other bodies of the Federation are to offer to the Federal Archives ( Bundesarchiv ) or, in the cases of subsection (3), to the competent Land Archives ( Landesarchiv ) all documents they no longer require for the fulfilment of their public duties, including the maintenance of the security of the Federal Republic of Germany or of one of its Länder , and are to hand them over, where the documents are of enduring value in the sense of section 3, as archival documents of the Federation ...” Section 5 “(1)     Unless otherwise stipulated by provisions of the law, the right to use archival documents of the Federation originating from a time more than thirty years in the past is enjoyed by anyone filing a corresponding application. Any further-reaching statutory rights and special agreements to the benefit of owners of private archival documents shall remain unaffected hereby. ... (5)     The period of closure pursuant to subsection (1), first sentence, may be shortened unless this is contravened by subsection (6). The periods of closure pursuant to subsection (1), first sentence, and subsection (2) may be shortened provided that the party affected has consented thereto. Failing consent by the party affected, the periods of closure pursuant to subsection (1), first sentence, and subsection (2) may be shortened if the use of the archival documents is absolutely essential for an academic research project or in order to protect justified interests that are within the sphere of overriding interests of another person or body, provided it can be ruled out that this will impair interests meriting protection by taking appropriate measures, particularly by redacted copies being made available. For figures of contemporary history and officials in pursuance of their duties, the periods of closure pursuant to subsection (1), first sentence, and subsection (2) may be shortened provided the interests meriting protection of the party affected are appropriately taken into account. The periods of closure pursuant to subsection (1), first sentence, and subsection (3) may be extended by a maximum of thirty years inasmuch as this is in the public interest. Where the archival documents have been created by one of the bodies of the Federation listed in section 2 (1), the shortening or extension of the periods of closure shall require the consent of that body. ... (8)     Where documents older than thirty years are used that are still subject to the power of disposition of the bodies designated in section 2 (1), subsections (1) through (7) are to be applied mutatis mutandis . This does not apply to documents that were not taken over pursuant to section 2 subsection (5) and (6) by the Federal Archives.” As regards the way in which archival documents may be “used” for the purposes of section 5 subsection 1 of the Federal Archives Act, section 2 § 1 of the Regulation on the Use of Archival Documents from the Federal Archives ( Verordnung über die Benutzung von Archivgut beim Bundesarchiv ) provides that archival documents will be made available in the original or as copies, or by disclosing their content, and that it is for the Federal Archives to decide on the type of use. 25 .     According to section 198, paragraph 1, of the Courts Constitution Act ( Gerichtsverfassungsgesetz ), a party to proceedings who suffers a disadvantage from protracted proceedings is entitled to adequate monetary compensation. A prior objection to delay ( Verzögerungsrüge ), which has to be raised before the court whose proceedings are allegedly unduly delayed, is a prerequisite for a subsequent compensation claim. An action to pursue the latter claim may at the earliest be lodged six months after the prior objection to delay. The purpose of these requirements, which have a preventive warning function, is to enable the court to expedite the proceedings (see Federal Court of Justice, no. III ZR 228/13, judgment of 17   July 2014, at paras. 15 and 17). 26 .     Section 93, paragraph 1, of the Federal Constitutional Court Act ( Bundesverfassungsgerichtsgesetz ) provides that a constitutional complaint shall be lodged and substantiated within one month, with the time-limit commencing with the service or informal notification of the complete decision. THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 27.     The applicant complained under Article 10 of the Convention about the refusal to allow him to get physical access and to consult in person the files held by Foreign Intelligence Service on U.B., a former Prime Minister of the Land of Schleswig Holstein who had died in a hotel in Geneva, Switzerland, in 1987. Article 10 of the Convention, insofar 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.” Admissibility The parties’ submissions (a)    Government 28.     The Government submitted that the complaint was inadmissible on several grounds. It was incompatible ratione materiae with Article 10 of the Convention, the applicant had not exhausted domestic remedies, and, in any event, the complaint was ill-founded. Given that information on the content of the Foreign Intelligence Service’s files was disclosed to the applicant, the present application boiled down to the question whether the German authorities were obliged – in addition to providing access to information by way of disclosure following an agreement reached outside the proceedings at issue – to also provide access to the same information through another means, that is, by allowing, in addition, the applicant to consult the files in person. The Government asserted that there was no obligation under Article 10 of the Convention to that effect, as the Court’s case-law provided that there was no obligation on the State to provide information in a specific form (they referred to Weber v. Germany (dec.), no. 70287/11, § 25, 6 January 2015), and consequently no interference with the applicant’s Article 10 rights. The applicant had furthermore failed to elaborate on his intended publication before the domestic courts, despite being required to do so, and had thus prevented these from assessing whether the publication would address a subject of general importance or only an audience’s wish for sensationalism or even voyeurism, that is to say, whether the “public interest” test was satisfied (they referred to Magyar Helsinki Bizottság v. Hungary [GC], no.   18030/11, § 162, 8 November 2016). 29.     As regards non-exhaustion of domestic remedies, the Government submitted that the Federal Administrative Court had examined the applicant’s request under two separate legal bases which were independent of each other – the Federal Archives Act and the right of the press to receive information under Article 5 § 1, second sentence, of the Basic Law – and it had advanced different reasons for rejecting the applicant’s action in respect of those two claims. In his constitutional complaint, however, the applicant had exclusively complained about the interpretation of provisions of the Federal Archives Act. The present application before the Court was inadmissible for non-exhaustion of domestic remedies since he advanced – with the exception of certain submissions concerning the Federal Archives Act – entirely different arguments before the Court (they referred to Hoffmann v. Germany (dec.), no. 30678/09, 16 November 2010, and Weiss v. Germany (dec.) [Committee], no. 34229/12, 27 August 2013). The applicant’s claim under Article 5 § 1, second sentence, of the Basic Law was rejected by the Federal Administrative Court because of a lack of substantiation why allowing him to consult the files in person was the only means to satisfy his information request. Moreover, he had not challenged the Federal Administrative Court’s finding in respect of that provision in his constitutional complaint. The applicant moreover failed to exhaust domestic remedies in respect of a number of submissions which he made for the first time before the Court, notably on his intended publication and the purpose of his information request, certain alleged errors in the application of the Federal Archives Act as well as the claim that the Foreign Intelligence Service was obliged to hand the files over to the Federal Archives. In his constitutional complaint, the applicant had also not made any submissions about the disclosure of information about the content and scope of the files held by the Foreign Intelligence Service on U.B., even though the first of the two disclosures occurred prior to the service of the Federal Administrative Court’s judgment and the time-limit for amending his constitutional complaint was still running at the time of the latter of the two disclosures. 30.     In their additional observations and submissions on just satisfaction, the Government suggested that the Court review whether or not the application ought to be declared inadmissible for abuse of the right of individual application pursuant to Article 35 § 3 (a) of the Convention, as a whole or in part in view of the applicant’s failure to mention the disclosure of the information on the scope and content of files in his application to the Court. Shortly before lodging the present application, the applicant had published an article based on the information thus received, which he had also failed to mention in his application. The applicant had created a fundamentally misleading impression of the facts of the case by concealing the nature and the scope of the information disclosed to him and the use he had made of it. (b)    The applicant 31.     The applicant rejected the Government’s submission that he intended to obtain information which he had already received, but only through different means. The information he had received in December 2013 and February 2014 could not replace a consultation of the files in person. Without being allowed to consult in person the files at issue, he, a well-known journalist who had previously published on German history, was unable to perform his role as a “public watchdog”. He was hindered to adequately inform the public and to contribute to a debate of paramount public interest, that is to say, on the question whether U.B., a high-ranking German politician, had committed suicide or had been murdered. He argued that he had sufficiently substantiated his request before the domestic courts. It was irrelevant that he had not elaborated in the domestic proceedings on the purpose of his information request nor on an intended publication. The Court’s assessment (a)    Abuse of the right of application 32.     The Court reiterates that a failure on the part of an applicant to inform it at the outset of a fact essential for the examination of the case could, in principle, lead to the application being declared inadmissible for abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention. In order for the Court to reach such a conclusion, the misleading information should concern the very core of the case. Moreover, an intention to mislead the Court must always be established with sufficient certainty (see Belošević v. Croatia (dec.), no 57242/13, § 47, 3 December 2019, with further references). 33.     Some of the applicant’s initial submissions, notably that he had effectively been denied access to the information, that withholding information on which the authorities had a monopoly amounted to censorship, and that he was unable to research or report on the topic, created the impression that he had not received any information. Given that the applicant had, in fact, received information on the “scope of the Foreign Intelligence Service’s files on U.B., the reason for their creation and their content”, following an agreement he had reached with the authorities in parallel to the proceedings leading to the present application (see paragraph   16 above), the applicant had indeed concealed important information and created a misleading impression of the facts of the case. While the applicant’s conduct is at least deplorable, having regard to the applicant’s submissions that the information he had received could not replace a consultation of the files in person as the two types of access to information did not yield the same information in terms of quality and quantity, the Court considers that it cannot be established with sufficient certainty that he intended to mislead the Court. Therefore, the Court concludes that the applicant’s failure to inform the Court about the information disclosed to him in respect of the Foreign Intelligence Service’s files on U.B. did not amount to an abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention. (b)    Non-exhaustion of domestic remedies 34.     The Court reiterates that the purpose of the exhaustion rule is to afford a Contracting State the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it. It is true that under the Court’s case-law it is not always necessary for the Convention to be explicitly raised in domestic proceedings, provided that the complaint is raised “at least in substance”. This means that the applicant must raise legal arguments to the same or like effect on the basis of domestic law, in order to give the national courts the opportunity to redress the alleged breach. However, as the Court’s case-law bears out, to genuinely afford a Contracting State the opportunity of preventing or redressing the alleged violation requires taking into account not only the facts but also the applicant’s legal arguments for the purposes of determining whether the complaint submitted to the Court has indeed been raised beforehand, in substance, before the domestic authorities. That is because “it would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument” (see, among other authorities, Hanan v. Germany [GC], no. 4871/16, § 148, 16   February 2021). 35.     Throughout the domestic proceedings, the applicant consistently requested that he be allowed to consult in person the files on U.B. held by the Foreign Intelligence Service, initially relying exclusively on domestic law and subsequently referring to the Court’s case-law on Article 10 of the Convention as well. The Court considers that he raised the Article 10 complaint, which he raised before the Court, at least “in substance” before the domestic courts and thus exhausted domestic remedies, as required by Article 35 § 1 of the Convention in respect of his Convention complaint. (c)    Applicability of Article 10 of the Convention 36 .     Having regard to the Government’s objection as to the applicability of Article 10 of the Convention, the Court reiterates that Article 10 of the Convention does not confer, in general and absolute terms, on the individual a right of access to information held by a public authority nor oblige the Government to impart such information to the individual. However, such a right or obligation may arise, firstly, where disclosure of the information has been imposed by a judicial order which has gained legal force and, secondly, in circumstances where access to the information is instrumental for the individual’s exercise of his or her right to freedom of expression, in particular “the freedom to receive and impart information” and where its denial constitutes an interference with that right ( Magyar Helsinki Bizottság , cited above, § 156). 37.     The Court notes that the Government did not contest the applicant’s right of access to information on the Foreign Intelligence Service’s files on   U.B. as such. They argued that it did not constitute an interference with the applicant’s Article 10 rights that the German authorities refused to grant him physical access to the impugned files, in addition to having provided him information on the scope and content of those files (see paragraph 28 above). In these particular circumstances, the question whether the desired physical access to the impugned files was instrumental for the applicant’s exercise of his right to freedom of expression and hence the question of the applicability of Article 10 of the Convention is closely linked to the merits of the complaint. Therefore the Court exceptionally decides to examine the question of the applicability of Article 10 of the Convention together with that pertaining to the existence of interference under this provision on the merits of the present case (see Studio Monitori and Others v. Georgia , nos. 44920/09 and 8942/10, § 32, 30 January 2020, and Centre for Democracy and the Rule of Law v. Ukraine , no. 10090/16, § 55, 26 March 2020). It therefore decides to join the objection to the merits. (d)    Conclusion 38.     The Court further observes that the applicant’s complaint under Article 10 of the Convention is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds. The complaint must therefore be declared admissible. Merits The parties’ submissions (a)    The applicant 39 .     The applicant asserted that there had been an unjustified interference with his rights under Article 10 of the Convention. Without being allowed to consult in person the files at issue, he, a well-known journalist who had previously published on German history, was unable to perform his role as a “public watchdog”. He was hindered to adequately inform the public and to contribute to a debate of paramount public interest, that is to say, on the question whether U.B., a high-ranking German politician, had committed suicide or had been murdered. The death had led to numerous publications and press coverage had played a vital part in starting a public debate. The applicant submitted that based on the available information it was probable that U.B. had been murdered, which led to the question why the respondent authority was unwilling to show what it knew about the circumstances of the death. The matter involved questions of the integrity of public officials and institutions, finding out who was responsible for the possible murder of a high-ranking politician, a possible participation of the authorities in it, including a possible complicity of the Foreign Intelligence Service, and a cover up by government institutions. 40 .     It was irrelevant that he had not elaborated in the domestic proceedings on the purpose of his information request nor on an intended publication. A member of the press did not have to reveal this, as there may otherwise be a risk of abuse on part of the authority from which access to information was requested. Thus far, he was only doing research on circumstances of U.B.’s death and had not decided whether he wanted to publish on the matter. A journalist’s mere interest in being able to do research on a matter was sufficient to oblige an authority to grant access to such information. Since the authorities had a monopoly on the information concerned, the applicant could neither do research nor report on the topic. With