Last week, ARTICLE 19, Access Info Europe, and 18 other civil society organisations submitted an amicus brief to the European Court of Human Rights (the Court) concerning access to information about proceedings related to immunity of members of parliament (MPs). In our submission, we outline how the right to access information held by legislative bodies is provided for in international standards, and to what extent this should also cover information about immunity of MPs.
The case, Jost Müller-Neuhof v. Germany, originated from the German Federal Parliament’s refusal to grant access to information about proceedings concerning the immunity of its MPs to a journalist – the applicant in this case. He sought access to information additional to that proactively disclosed by parliamentary authorities. He was denied the request on grounds that the right of access to information does not cover the legislative branch. The journalist turned to the European Court of Human Rights, asking if Germany had violated his fundamental ‘right to receive information’ as protected by Article 10 of the European Convention on Human Rights.
In the intervention, we argue that accessing information about all branches of government, including the legislative branch, is key to ensuring openness, accountability, and transparency of legislative bodies, and should fall under the scope of right to information laws. This is supported by standards set by both international and regional human rights bodies that elaborate open parliament principles.
Regarding access to information, we argue that immunity of MPs as such should never be a basis for rejecting requests. According to the European Court’s jurisprudence under Article 10 of the European Convention, any restriction on access to information must be provided for by law, safeguard a clearly-defined legitimate interest, and be necessary to secure that specific legitimate interest.
Here the burden rests on the state to demonstrate that the nondisclosure of information serves a legitimate interest better than the information’s disclosure would. In this case, it is not clear how parliamentary immunity inherently satisfies this test. We argue that any denial of access to information on the basis of immunity of MPs must be closely linked to one of the legitimate interests exhaustively listed under Article 10, with harm and public interest tests applied.
ARTICLE 19, Access Info, and partners urge the Court to recognise and reaffirm the principles of openness and transparency of parliamentary bodies and the right of access to information, and to stipulate that even in cases of parliamentary immunity, some level of transparency should be maintained to ensure public trust and accountability.