CCPR/C/145/D/3708/2020

GE.26-04160 (E) 240426 240426

Human Rights Committee

Decision adopted by the Committee under the Optional

Protocol, concerning communication No. 3708/2020*, **

Communication submitted by:

W.K. (represented by the Center for Law and

Democracy)

Alleged victim:

The author

State Party:

Germany

Date of communication:

30 June 2019 (initial submission)

Document reference:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State Party on 11 February 2020 and

8 February 2022 (not issued in document form)

Date of adoption of decision:

16 March 2026

Subject matter:

Denial of access to ministerial opinions

Procedural issues:

Exhaustion of domestic remedies; same matter –

another procedure of international investigation

or settlement; substantiation of claims

Substantive issues:

Access to information; freedom of expression

and opinion

Article of the Covenant:

19

Article of the Optional Protocol:

5 (2) (b)

1.

The author of the communication is W.K., a national of Germany. He asserts that the

State Party has violated his rights under article 19 of the Covenant. The Optional Protocol

entered into force for the State Party on 25 November 1993. The author is represented by

counsel.

Facts as submitted by the author

2.1

The author is a human rights activist and has advocated for the right to information in

the Free State of Bavaria in Germany. The Bavarian Constitution guarantees the right to

submit petitions to the Bavarian Parliament. On 25 October 2007, the author submitted such

a petition (“first petition”), requesting that the Bavarian Parliament adopt certain

* Adopted by the Committee at its 145th session (2–19 March 2026).

** The following members of the Committee participated in the examination of the present

communication: Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo,

Yvonne Donders, Carlos Ramón Fernández Liesa, Laurence R. Helfer, Konstantin Korkelia, Dalia

Leinarte, Bacre Waly Ndiaye, Hernán Quezada Cabrera, Akmal Saidov, Ivan Šimonović, Soh

Changrok, Tijana Šurlan, Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu.

United Nations

CCPR/C/145/D/3708/2020

International Covenant on

Civil and Political Rights

Distr.: General

24 April 2026

Original: English

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GE.26-04160

recommendations made by the Commissioner for Human Rights of the Council of Europe in

a report of 11 July 2007. In the first petition, he also raised concerns regarding other matters

of public interest, including the independence of the judiciary, access to information and the

practices of German youth welfare officers.

2.2

On 12 June 2008, the Parliamentary Committee on Constitutional, Legal and

Parliamentary Questions denied the first petition. According to the notice of denial, the

Parliamentary Committee had obtained opinions on the petition from the Bavarian State

Ministries of Justice and the Interior. Based on those opinions, the Committee concluded that

there was no reason to implement the recommendations proposed by the author. The

Committee did not provide other reasons and did not describe the opinions of the two

ministries.

2.3

In a letter of 8 August 2008, the author requested the Bavarian Parliament to grant

him access to the aforementioned ministerial opinions. On 25 August 2008, the Bavarian

Parliament denied the request on the ground that there was no right to access documents

relating to the petition procedure. According to the notice of denial, the Parliamentary

Committee only shared ministerial opinions on a discretionary basis.

2.4

The author then sent letters to the Ministry of Justice and the Ministry of the Interior,

requesting access to their respective opinions on his petition. Both ministries deferred to the

decision of the Bavarian Parliament and denied the author’s requests.

2.5

On 25 March 2009, the author sent a second petition in which he requested the

Bavarian Parliament to adopt a state law on the right to information. After soliciting an

opinion from the Ministry of the Interior, a committee of the Bavarian Parliament rejected

the author’s second petition. It chose to include the ministerial opinion in its response to the

author. According to the ministerial opinion, a state law on the right to information was not

necessary, and the adoption of one was not required by domestic or international law.

2.6

On 13 December 2011, in a letter to the Bavarian Parliament, the author again

requested access to the ministerial opinions concerning the first petition. In its response, the

Bavarian Parliament stated that its rules of procedure did not provide for a right to access

files on petitions. It also noted that the relevant committee had already decided against

establishing a law on the right to information in Bavaria.

2.7

On 14 July 2012, the author filed a complaint against the Bavarian Parliament to the

Bavarian Administrative Court concerning access to the opinions on the first petition. On

13 June 2013, the Administrative Court dismissed the complaint in a reasoned decision.

2.8

On 25 July 2013, the author appealed against the latter decision (concerning the first

petition) to the Higher Administrative Court of Bavaria. On 14 February 2014, the appeal

was denied in a reasoned decision. On 13 March 2014, the author filed for leave to appeal

before the Federal Constitutional Court. On 13 January 2016, the application was rejected as

inadmissible. The author maintains that he has exhausted domestic remedies.

2.9

On 8 March 2016, the author lodged an application to the European Court of Human

Rights concerning the refusal of the Bavarian Parliament to grant access to the requested

opinions on his first petition. On 23 June 2016, the Court declared the application

inadmissible.1 The decision of the Court was communicated in a letter dated 30 June 2016.

2.10

With reference to the timeline of the proceedings, the author maintains that he has not

abused the right of submission. It took several years for him to access domestic channels

because of a lack of clear procedures for making access to information requests. He lodged a

timely application to the European Court of Human Rights one month after the Federal

Constitutional Court denied his appeal regarding the first petition. After the denial of that

application, the author submitted an initial complaint to the Human Rights Committee on

8 May 2018. On 17 May 2018, that complaint was rejected without registration because it

did not meet preliminary criteria. Thereafter, the author obtained legal counsel and

1 Application No. 13912/16. The decision was made by a single judge and was based on articles 34 and

35 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention on Human Rights). The decision did not contain further reasoning.

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submitted a more detailed complaint on 30 June 2019, three years after the date of the letter

of the European Court of Human Rights (30 June 2016).

Complaint

3.1

The author claims that, by denying him access to the two ministerial opinions

concerning his first petition to the Bavarian Parliament, the State Party violated his rights

under article 19 of the Covenant.

3.2

Separately, article 19 of the Covenant was also violated when the Bavarian Parliament

denied the author’s second petition, in which he had requested the adoption of a state law in

Bavaria on the right to information. Bavaria lacks a comprehensive legal framework for

access to information. Instead, it has a patchwork of provisions in other laws that offer some

limited procedural options for requesting access to government documents.

3.3

The right to information under article 19 of the Covenant applies to all public

authorities, extends to all persons and covers all records held by a public body.2 Not only

journalists but also individuals may exercise a “watchdog” role on matters of legitimate

public concern. The right to information applies regardless of whether the person requesting

it can demonstrate a direct interest in the information.3 In any case, the author had a direct

interest in the information. As demonstrated by his personal webpages, he serves as a

watchdog on human rights issues in Bavaria and regularly publishes posts concerning matters

of public interest, including the right to information.

3.4

The State Party did not meet its positive obligation to adopt a general law on the right

to information that meets the requirements of international law.4 Alternately, at a minimum,

States must have a specific legal framework establishing clear and appropriate procedures

for requesting information; the State Party did not have one, to the detriment of the author.

3.5

The authorities did not specify substantive reasons or any potential harm that justified

the denial of the author’s request to access the ministerial opinions. He could not appeal to

an independent administrative appeal mechanism.

3.6

The decision not to disclose the ministerial opinions was not provided by law or

necessary or proportionate to a legitimate interest specified by the State Party. Parliamentary

rules of procedure cannot be considered a “law”. The public has an interest in knowing the

views of ministries in relation to the issues that the author raised in his petition, including

independence of the judiciary and access to information.

3.7

As remedies, the author requests declarations that the State Party violated article 19

of the Covenant, that rule 190 (3) of the rules of procedure of the Bavarian Parliament is not

a justified restriction on the right to information, that the State Party must disclose the

ministerial opinions in question or justify any non-disclosure, and that the State Party must

ensure that Bavaria establishes a general legal regime for the right to information that meets

various, specific criteria.

State Party’s observations on admissibility and the merits

4.1

In its observations of 8 August 2022, the State Party maintains that the communication

is inadmissible on three grounds. First, the author failed to exhaust domestic remedies in two

respects. He could have lodged a constitutional complaint to the Bavarian Constitutional

Court. The Bavarian Constitutional Court has ruled that it is possible for individuals to lodge

such complaints.5 There are no indications that that remedy would not have had a reasonable

prospect of success.

2 General comment No. 34 (2011) on the freedoms of opinion and expression, para. 18.

3 Toktakunov v. Kyrgyzstan (CCPR/C/101/D/1470/2006 and CCPR/C/101/D/1470/2006/Corr.1),

para. 6.3.

4 General comment No. 34 (2011), para. 8.

5 For example, decision, Vf. 35-VI-99, 12 November 1999.

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4.2

The author also failed to contest the decisions of the two Bavarian ministries. He did

not file a related complaint within the prescribed time limit of one year. His constitutional

complaint only concerned the actions of the Bavarian Parliament, not the ministries.

4.3

Second, the communication is inadmissible because of the decision of inadmissibility

of the European Court of Human Rights concerning the author’s first parliamentary petition.

Although the Court did not specify in its decision the precise ground(s) of inadmissibility, its

decision could have been based on the manifestly ill-founded character of the application.

4.4

Third, the claim under article 19 of the Covenant is inadmissible and without merit

because it is ill-founded. The restriction in question was lawful. Rule of procedure 190 (3) of

the Bavarian Parliament is precisely worded and publicly accessible. It states that in matters

concerning petitions, no access to documents shall, in principle, be granted. The Committee

has already accepted that internal parliamentary regulations may constitute “law” within the

meaning of article 19 (3) of the Covenant.6

4.5

The restriction was necessary to protect public order. The Committee has found that

public order may include support for the effective and dignified operation of parliament and

the safety and security of its members. 7 Parliamentary autonomy is the basis of the

effectiveness of parliament; it ensures that parliament can operate independently of other

State authorities. Such autonomy means that parliament has the power to enact its own rules

of procedure. Courts therefore have only limited scope to review internal rules of procedure

of parliaments. Parliaments have a wide margin of appreciation when regulating internal

affairs. One purpose of restricting the right of access to documentation is to protect the

process of forming the will of parliament in committee. This process also covers decisions

on petitions. The right of petition under article 17 of the Basic Law gives citizens the

opportunity to submit their wishes. However, the petition procedure is purely legislative; it

is not tantamount to a judicial or administrative procedure. Thus, the information rights that

otherwise apply to administrative procedures do not apply to the petitions procedure. That

procedure does not give petitioners any right to have their petition addressed in a specific

way or to be told the final reasons for the eventual decision. Those matters are within the

discretion of parliament, acting within the bounds of the Constitution. There is therefore no

right to access the file of the petition, as it is neither useful nor necessary.

4.6

In fact, the right of access to the petition file for third parties would jeopardize the

performance of the parliamentary tasks of the committee responsible for dealing with a

petition. If it did not have the opportunity for confidential deliberation, the committee would

be unable to adequately conduct administrative oversight and mediate between authorities

and petitioners in the relevant case.

4.7

The restriction was appropriate and proportionate and went no further than necessary

to safeguard the autonomy of parliament and the effectiveness of the petitions procedure. It

was the least intrusive measure because it was limited to the petitions procedure. The form

of the petition procedure is consistent with the rule of law and is not arbitrary.

4.8

The Covenant does not establish an unrestricted right of access to information held by

State institutions. It certainly does not require the regulation of access through a freedom of

information act rather than through other statutes. Extensive access to official information is

already guaranteed in Bavaria through provisions in special statutes. A general right of access

to information is also guaranteed in Bavaria through article 39 of the Bavarian Data

Protection Act. It provides grounds on which access to requested information may be limited,

in conformity with article 19 (3) of the Covenant. Article 39 (4) (1) of the Act, read in

conjunction with the second sentence of article 1 (1) of the Act, contains an exemption for

the Bavarian Parliament that enables it to enact its own rules.

4.9

Contrary to the author’s suggestion, it is possible to appeal to an independent body if

an authority refuses to release information. In such cases, both administrative and judicial

remedies are possible. An applicant may appeal at any time to the Bavarian Data Protection

Commissioner, an independent supervisory authority. The Commissioner may object to the

6 The State Party cites Gauthier v. Canada (CCPR/C/65/D/633/1995), para. 13.5.

7 Ibid., paras. 13.5 and 13.6.

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actions of an authority. Recourse to administrative courts is also available for disputes

relating to article 39 of the Bavarian Data Protection Act. Release of simple information from

registers and database is free of charge.

Author’s comments on the State Party’s observations on admissibility and the merits

5.1

In his comments of 25 August 2023, the author asserts that he could not complain to

the Bavarian Constitutional Court because he was not a resident of Bavaria during the

relevant time. Rights under the Bavarian Constitution are only guaranteed for residents of

Bavaria. The author demonstrated reasonable diligence when exhausting domestic remedies.

5.2

Regarding the merits, concerns about autonomy cannot justify excluding a parliament

from its obligations to respect the right to information, which includes a right to access

information held by the legislative branch.8

5.3

The State Party misinterpreted the Committee’s jurisprudence on public order.9 In the

author’s case, public order was not at issue. The goal of a petition is to allow the public

transparent and open access to parliament to raise issues of public interest. Denying access

incentivizes arbitrariness and undermines the procedure.

5.4

The restriction was not necessary and was not the least restrictive means of protecting

public order. There is no need for the secrecy of the petitions procedure. The proceedings of

the European Parliament’s Committee on Petitions are open to the public. The Parliaments

of Scotland, Portugal and Luxembourg all publish petitions and the main associated

documents. In 2014, the authors of a report commissioned by the Bundestag in Germany

recommended publishing ministerial opinions at the federal level.10

5.5

No law in Germany establishes a right to information in relation to parliament and

other important entities. Article 39 of the Bavarian Data Protection Act does not cover the

Bavarian Parliament and only guarantees a right to information when an applicant

demonstrates a legitimate interest in the information, which the Munich Administrative Court

stated the author lacked.

State Party’s additional observations

6.1

In its further observations of 24 October 2023, the State Party maintains that the author

could indeed have filed a complaint to the Bavarian Constitutional Court. Under article 120

of the Bavarian Constitution and article 33 (1) of the Basic Law, all Germans may file a

constitutional complaint to the Bavarian Constitutional Court, regardless of whether they

have a territorial link with Bavaria.

6.2

The author also could have filed a petition under article 115 of the Bavarian

Constitution, which gives all inhabitants of Bavaria the right to make written requests and

complaints to the competent authorities or to the Bavarian Parliament. The right extends to

anyone who has had any kind of contact with the authorities of Bavaria, under article 1 of the

Bavarian Petitions Act.

6.3

In any case, the Munich Administrative Court noted that the author had not filed a

complaint to it within the one-year time limit prescribed by law to contest the rejection by

the State ministries of his disclosure requests.

6.4

Regarding the merits, restrictions on access to information about parliamentary

processes are not unusual. The federal Freedom of Information Act does not require the

federal Parliament (Bundestag) to disclose information relating to its parliamentary business.

The federal Parliament only has a disclosure obligation insofar as it discharges administrative

8 Agazade v. Azerbaijan (CCPR/C/126/D/2307/2013), para. 7.3.

9 Gauthier v. Canada, para. 13.6.

10 Riehm and others, Electronic Petitioning and Modernization of Petitioning Systems in Europe:

Report for the Committee on Education, Research and Technology Assessment (Berlin, Office of

Technology Assessment at the German Bundestag, 2014), pp. 267–268. Available at

https://www.isi.fraunhofer.de/content/dam/isi/dokumente/cct/2014/Electronic-petioning-2014.pdf.

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tasks under public law. Archives of the Bavarian Parliament may be consulted when certain

criteria are met.

6.5

Contrary to the author’s assertion, article 39 of the Bavarian Data Protection Act is

the legal basis for the general right of access to information from Bavarian public authorities,

even though no separate statute regulates that right. Thus, the right to access information is

not confined to a series of special laws. Contrary to the author’s statement, there certainly is

an independent oversight mechanism for that law (see para. 4.9 above).

6.6

The principles that apply to administrative and parliamentary decisions are different.

That is because of the nature of parliamentary processes, which involve free discussion

among members, balancing of political interests, and free exercise of the mandate.

Parliamentary committees that examine petitions may seek, but are not required to seek, the

opinion of ministries. It is up to those parliamentary committees to decide on the substance

of petitions and to decide the extent to which they will provide detailed justifications of their

decisions.

6.7

The opinion of the Ministry of Justice on the author’s first petition included comments

concerning a family case, including a mother’s right to custody of her child. The author was

not a party to those proceedings. The opinion of the Ministry of Justice included highly

sensitive medical and personal data concerning the litigants.

6.8

The ministerial opinions were internal information documents for the legislature, with

a purely preparatory function. They served only to provide information and prepare the

members of the Bavarian Parliament to take a decision on the merits. Because they were

internal documents, the State Party was not obligated to inform the author of their content.

Additional submissions by the parties

Author

7.1

In his additional comments of 13 December 2023, the author responds to the

statements described in paragraph 6.7 above. His first petition indirectly referred to a custody

case involving a mother whose website featured personal and medical information about

herself and her son. Although the website is no longer active, archived versions include

extensive information of that nature. It is unlikely that the opinion of the Ministry of Justice

dealt exclusively or even primarily with the details of that case. In any case, the State Party’s

argument does not resolve the breach of article 19 of the Covenant. It is unlikely that

disclosure would have harmed a privacy interest. The opinion could have been redacted

before release. Moreover, the State Party did not explain why it did not disclose the other

opinion, from the Ministry of the Interior.

State Party

7.2

In its additional observations of 9 February 2024, the State Party responds that the

webpage of the mother in question is no longer available. Moreover, the Government was

not obligated and could not be expected to examine the mother’s website to determine

whether certain information had been published by her and could therefore be disclosed to

the author, who had absolutely no connection to the mother’s case. Furthermore, the court

decision contained health-related information concerning the mother’s minor child, which

may not have been published and/or published lawfully (i.e. with the consent of the child’s

other legal guardians).

7.3

The remainder of the author’s arguments (regarding redaction, release of a separate

ministerial opinion, etc.) disregard the fact that the petitions procedure is parliamentary. The

release of certain sections or redacted sections of the ministerial opinions might have allayed

concerns regarding third-party information contained therein. However, it would not have

sufficiently safeguarded all of the concerns voiced during the discussions freely conducted

among the members of the Bavarian Parliament and expressed in the votes of those who

opposed the release of the opinions. Accordingly, the Bavarian Parliament was neither able

nor under any obligation to provide the author with a (single) specific reason for the

committee’s decision.

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Issues and proceedings before the Committee

Consideration of admissibility

8.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 97 of its rules of procedure, whether the communication is

admissible under the Optional Protocol.

8.2

Under article 5 (2) (a) of the Optional Protocol and the State Party’s reservation to

that provision, the Committee is precluded from examining a matter that is being examined

or has been examined under another procedure of international investigation or settlement.11

In 2016, the author lodged an application to the European Court of Human Rights concerning

access to the ministerial opinions on his first petition to the Bavarian Parliament. In a

single-judge decision, the European Court of Human Rights declared the application

inadmissible under articles 34 and 35 of the European Convention on Human Rights, without

indicating whether that finding was based on procedural or substantive grounds. While noting

the State Party’s position that the decision of the Court might have been based on substantive

grounds, in the absence of a clear indication to that effect, the Committee cannot conclude

that the same matter has been examined by the Court. 12 Accordingly, the Committee

considers that article 5 (2) (a) of the Optional Protocol and the State Party’s reservation

thereto do not preclude its examination of the communication.

8.3

The Committee notes the State Party’s position that the author did not, as required by

article 5 (2) (b) of the Optional Protocol, exhaust all available domestic remedies before

submitting the communication. Although there is no obligation to exhaust domestic remedies

if they objectively have no prospect of success, authors of communications must exercise due

diligence in the pursuit of available remedies and mere doubts or assumptions about their

effectiveness do not absolve the authors from the obligation to attempt to exhaust them.13 The

Committee recalls in that regard that the effectiveness of a remedy does not depend on the

certainty of a favourable outcome for the author.14 Noting that the author does not claim to

have pursued any domestic remedies against the denial by the Bavarian Parliament of his

second petition, the Committee considers that aspect of the communication inadmissible

under article 5 (2) (b) of the Optional Protocol.

8.4

In relation to the first petition, the Committee notes the State Party’s argument that

the author could have presented the substance of his claim before the Constitutional Court of

Bavaria. The author unsuccessfully sought leave to file a complaint to the Federal

Constitutional Court concerning access to the ministerial opinions. In Germany, State

constitutional courts have jurisdiction to assess disputes that arise under their respective State

constitution. Because the author’s claims relate specifically to the Bavarian Parliament and

Bavarian legislation, the Committee considers that the Constitutional Court of Bavaria should

have had the opportunity to examine the substance of the claim regarding the first petition.

According to the author, that remedy was unavailable to him because he did not reside in

Bavaria. Nonetheless, the Committee notes the State Party’s information that domestic law

permits all nationals of Germany to file a constitutional complaint to the Bavarian

Constitutional Court, even if they do not have a territorial link with Bavaria. While noting

the author’s argument that he exercised due diligence in availing himself of domestic

remedies, the Committee observes that he does not claim to have received a concrete

indication from the State Party’s authorities that he could not submit a complaint to the

Bavarian Constitutional Court. The author was able to file his parliamentary petitions and

have them examined while residing outside of the country. In the light of the foregoing, the

11 For example, P.B.P. v. Spain (CCPR/C/143/D/3226/2018), para. 6.2; and R.M. and Q.M. v. Sweden

(CCPR/C/141/D/4062/2021-CCPR/C/141/D/4191/2022), para. 7.2.

12 For example, X v. Norway (CCPR/C/115/D/2474/2014), para. 6.2.

13 See, for example, M.O. v. Germany (CCPR/C/140/D/3232/2018), para. 7.4; V.W.G. and E.H. v.

Albania (CCPR/C/138/D/3031/2017), para. 8.4; W.L.W. v. South Africa (CCPR/C/140/D/3237/2018),

para. 6.4; G.E. v. Germany (CCPR/C/104/D/1789/2008), para. 7.4; M.L. v. Croatia

(CCPR/C/127/D/2505/2014), paras. 6.6 and 6.7; García Perea v. Spain (CCPR/C/95/D/1511/2006),

para. 6.2; and F.C.S. v. Spain (CCPR/C/140/D/4063/2021), para. 6.4.

14 For example, G.B. v. Türkiye (CCPR/C/142/D/3592/2019), para. 9.3; and D.Č. v. Lithuania

(CCPR/C/134/D/3327/2019), para. 4.16.

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Committee considers that the author has not demonstrated that he exhausted available and

effective domestic remedies to challenge his lack of access to the ministerial opinions and

the legislative framework in Bavaria concerning the right to information. Thus, the

Committee declares that the claims in relation to the first petition are inadmissible under

article 5 (2) (b) of the Optional Protocol.

8.5

In the light of its findings, the Committee does not deem it necessary to examine other

grounds of inadmissibility.

9.

The Committee therefore decides:

(a)

That the communication is inadmissible under article 5 (2) (b) of the Optional

Protocol;

(b)

That the present decision shall be transmitted to the State Party and to the

author.