Bundesverfassungsgericht

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Filming in the courtroom before and after a criminal trial hearing for the purposes of TV reporting must in principle be allowed if the public has a weighty interest in obtaining information about the trial

Press Release No. 9/2008 of 29 January 2008

Order of 19 December 2007
1 BvR 620/07

On 19 March 2007, a criminal trial began before the Münster Regional Court (Landgericht) against 18 Bundeswehr soldiers who had been in charge of training new recruits and were accused of having abused recruits at an army base in Coesfeld (Westphalia). Prior to the trial hearing, the presiding judge had issued an order banning camera teams from the courtroom for 15 minutes before and 10 minutes after the hearing. Upon application by public broadcasting corporation ZDF, the First Chamber of the First Senate of the Federal Constitutional Court ordered, by preliminary injunction of 15 March 2007, that the presiding judge allow the ZDF camera team to make recordings of the persons that are parties to the trial while they are present in the courtroom at a time when the presence of the participating judges and lay judges (Schöffen) is ensured as well. Insofar as the accused did not consent to the publication of their image, their faces must be rendered unrecognisable (cf. Press Release No. 30/2007 of 16 March 2007).

The constitutional complaint lodged by ZDF in the principal proceedings was also successful. In a decision taken with 6:1 votes, the First Senate of the Federal Constitutional Court held that the order of the presiding judge violates the complainant’s fundamental right to freedom of broadcasting.

In essence, the decision is based on the following considerations:

1.       Media presence in the courtroom and subsequent media reporting generally promote public scrutiny of court trials. This also serves interests of the judiciary, as the judiciary has an interest in promoting public awareness of judicial proceedings and decisions, including with regard to trial hearings. Audio-visual recordings are a significant factor in how and on what scale public awareness is raised. At the same time, procedural law prohibits audio and film recordings of the hearing itself, which is compatible with constitutional law; in this regard, public scrutiny of court proceedings is achieved by the principle that court sessions be public and by means of media reporting on the events in the courtroom [without the aid of direct recordings]. Nevertheless, using footage of the courtroom setting and the persons acting within it may provide the general public with a clearer impression of the proceedings, which serves to satisfy the public’s information interest. Therefore, the ordinary courts in principle allow media in their courtrooms before and after a court hearing and during recesses for the purposes of making broadcast recordings and using broadcasting-specific dissemination techniques.

2.       However, restrictions may be imposed by judicial orders issued in exercise of the presiding judge’s powers to maintain order in court (sitzungspolizeiliche Anordnung). The specific content of such judicial orders is at the discretion of the presiding judge. When exercising this discretion, the presiding judge must have regard to the importance of broadcasting for ensuring public awareness and scrutiny of court proceedings, as well as to interests that oppose such broadcasting. The presiding judge must also ensure that the principle of proportionality is observed. If the interest in media reporting by means of audio and film recordings outweighs other relevant interests, the opportunity to make such recordings must be provided.

a)        In assessing the interest of the public in obtaining information, the subject matter of the court proceedings in question is a significant factor. In criminal proceedings, aspects that must be taken into account include, in particular, the seriousness of the charges, but also the level of public attention the case has attracted, for instance due to its sensational subject matter. The interest of the public in obtaining information frequently extends to the persons who, as members of the adjudicating body or the public prosecution office, partake in administering justice in the name of the people.

b)       Yet legitimate interests opposing the creation and dissemination of audio and film recordings must also be taken into account. These include the general right of personality of persons involved in the proceedings, especially in its manifestation as a right to one's own image. In this regard, it must be taken into account that at least for some of the persons involved in the proceedings presence in the courtroom is mandatory, and that court hearings will often constitute an unfamiliar and stressful situation for them. With regard to the accused, consideration must be given in particular to a possible pillory effect and impairments of their right to be presumed innocent or of their interest in future social reintegration, as these rights and interests might be affected by media coverage identifying the accused. With regard to witnesses, it is important to note that they may be subjected to a high level of stress, for instance if they are victims of the crime in question. But other persons involved in the proceedings as judges, public prosecutors, lawyers or judicial staff, too, are entitled to a certain level of protection; their interest may outweigh the publication interest, for instance, in the event that publishing their images would result in significant harassment or threats to their safety due to attacks on their person by third parties. Moreover, the protected interests that must be taken into account include the right to a fair trial of the persons involved in the proceedings as well as the proper functioning of the administration of justice, which in particular includes the need to ensure that the process of finding truth and justice is not disturbed.

c)        When exercising their discretion, the presiding judge must satisfy the principle of proportionality. A ban on audio and video recordings is not necessary if the protection of opposing interests can already be ensured by imposing restrictive conditions requiring, in particular, that the footage obtained be rendered anonymous by suitable technical means if the depicted persons are entitled to special protection, and by instructions regarding the location, timing, duration and type of recordings permitted. The risk of disturbance to the proper conduct of the hearing that arises, for instance, due to the limited space available in the courtroom, can be mitigated or avoided by opting for a so-called media pool solution [where only one camera team representing a media pool is admitted], rather than allowing several individual camera teams in the courtroom.

3.       In the present case, the challenged order of the presiding judge does not meet these requirements. It was not sufficiently taken into account that the proceedings concerned allegations of abuse of Bundeswehr recruits by the officers and non-commissioned officers responsible for their training, which led to widespread public discussion. As the circumstances clearly set the case apart from what is considered ordinary crime, the investigation of the incidents attracted considerable public interest. The presiding judge could not simply rely on the generalised assumption that visual courtroom recordings outside the trial hearing would cause the accused to feel anxious, and that this would make it more difficult for the court to try the case. It is not immediately obvious from the specifics of the case nor from the identity of the accused, all of whom are experienced Bundeswehr officers and non-commissioned officers, that such concerns were indeed justified. The interest of the public in footage of the events accompanying a trial hearing extends to footage of the judges involved, including lay judges, as well as to footage of the public prosecutors and lawyers as organs serving the administration of justice. The concerns raised by the presiding judge resulting from the limited space available in the courtroom could have been resolved through suitable measures, such as restricting the number of camera teams present through the use of a media pool.