Facts
The appellant A. is a journalist with Swiss and Bulgarian citizenship. In September 2019, he requested the Federal Office of Police (fedpol) to inform him whether he was registered in any way in the systems of the European Union Agency for Law Enforcement Cooperation (Europol). For almost two years, he has been stopped and extensively questioned upon every entry into the Schengen area. He suspects that the Bulgarian authorities are misusing the information system with false allegations to intimidate him because of his journalistic activities as the editor of a government-critical online media. fedpol refused to provide information about any entries in the Schengen Information System (SIS), as this would jeopardize the purpose of a criminal investigation or other investigative proceedings. The appellant filed a complaint against this decision with the Federal Administrative Court, which was dismissed. The appellant then filed an appeal in public law matters with the Federal Supreme Court.Considerations
The Federal Supreme Court partially upholds the appeal and remands the case to fedpol for supplementary factual findings and a new decision. The Federal Supreme Court states that while fedpol must consult the competent authority of the issuing state in accordance with Art. 58 para. 3 of the SIS-II Decision, it is not bound by their opinion. fedpol must itself examine whether the refusal to provide information is justified, in particular whether the purpose of the alert on the person still justifies the associated restrictions on fundamental rights. Further information on the nature, subject matter and duration of the ongoing investigation in the issuing state is required for this. In…