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Television reporting at court while the court is in recess is in principle permissible where the public has a strong interest in receiving information
Press Release No. 9/2008 of 29 January 2008
Order of 19 December 2007
1 BvR 620/07
On 19 March 2007, the hearing of 18 army instructors who were alleged to have abused recruits at an army barracks in the Westphalian town of Coesfeld began before the Muenster Regional Court (Landgericht). Before the hearing started the presiding judge of the Criminal Division ordered that camera and television crews be excluded from the courtroom for 15 minutes prior to the beginning of the trial and 10 minutes following its end. At the request of a German television network, Zweites Deutsches Fernsehen (hereinafter: ZDF), the First Chamber of the First Senate of the Federal Constitutional Court issued an injunction on 15 March 2007 ordering the presiding judge to make it possible for the ZDF television crew to film the parties to the proceedings in the courtroom and to ensure that the judges and the lay assessors were present at the same time. The order included the proviso that the faces of accused who had not consented to their images being publicised would have to be anonymised.
Like its motion for an injunction, ZDF's constitutional complaint was also successful. The First Senate of the Federal Constitutional Court found that the order by the presiding judge of the Criminal Division had violated the complainant's fundamental right of broadcasting freedom. The vote on the decision was six in favour and one against.
In essence, the decision is based on the following considerations:
1. The public monitoring of court hearings is in principle improved by the presence of the media and the coverage it provides. Similarly, it is in the judiciary's interests that it be known to the public through its proceedings and decisions and its conduct of oral hearings. The broadcasting of audiovisual reports affects the kind of public awareness there is of the judiciary and increases that awareness. The law places a constitutionally valid ban on audio and visual recordings during oral hearings themselves. Thus the public monitoring of court hearings occurs through courtrooms being open to the public and the coverage of hearings. Nevertheless, by conveying to citizens what a courtroom and the people in it look like it is possible in addition to make court proceedings comprehensible to them in a way that satisfies their interest in receiving information. Accordingly, the non-constitutional courts proceed on the basis that in principle the period before and after an oral hearing as well as the recesses should be open to the media and that it may employ the technical means for recording and dissemination specifically used in broadcasting during these times.
2. The presiding judge may order the imposition of restrictions on the basis of the rules governing the orderliness of courtroom proceedings. He or she has a discretion as to the details of the order. He or she must exercise this discretion by taking into account the significance of broadcasting coverage for guaranteeing public awareness of court hearings and for monitoring auch hearings as well as by taking into account interests that conflict with such coverage. In doing this, he or she must ensure that the principle of proportionality is upheld. If the interest in audio and film coverage outweighs other interests that have to be taken into account by the presiding judge in exercising his or her discretion, he or she will be obliged to make same possible.
a) In weighting the public's interest in receiving information the respective subject-matter of the court proceedings is significant. In the case of criminal proceedings, the seriousness of the alleged crime must be considered as well as the public attention attracted by the case, for example, due to its sensational content. The public's interest in receiving information is as a rule also directed at persons who are members of the bench or contribute as representatives of the public prosecutor's office to the establishment of justice in the name of the people.
b) However, interests worthy of protection which may conflict with the recording and dissemination of audio and visual recordings also have to be taken into account. The interests worthy of protection include the rights of personality of the persons concerned, particularly their right to their own image. In this context, one has to take into account that at least some of the parties involved in proceedings find themselves in a situation which as a rule is unusual and stressful for them and in respect of which their attendance is mandatory. Particularly in the case of the accused, one also needs to consider the possibility that they might be subject to severe public criticism or that the presumption that they are innocent until proven guilty might be undermined; one also needs to take into account that their later resocialisation could be affected by their being identified in media coverage. As far as the witnesses are concerned, one has to pay special attention to the strain they are exposed to, for example, if they are the victims of a crime. However, the judges, public prosecutors, lawyers and court officials who are involved in proceedings are also entitled to protection which can outweigh the public interest, for example, where the publication of their pictures could cause them to be subject to considerable harassment or result in their safety being endangered by attacks. Furthermore, the interests worthy of protection that need to be considered include the right to a fair trial of the parties concerned and the proper administration of justice, in particular, the undisturbed establishment of the truth and justice.
c) When exercising his or her discretion, the presiding judge must uphold the proportionality principle. There is no need to prohibit audio and visual recordings if the conflicting interests can be protected by a restrictive order, in particular one requiring that visual recordings of those persons who have a special claim to protection be anonymised and one giving instructions regarding the time, place, duration and type of recordings. Interference with the conduct of the hearing which can be caused for instance by the crowdedness of the courtroom can be counteracted by using a so-called pool solution instead of admitting several camera crews.
3. The challenged order made by the presiding judge does not do justice to these claims. He did not pay sufficient attention to the fact that the proceedings related to the much-discussed accusation of abuse of army recruits by the officers and sergeants in charge of their training and was clearly something out of the ordinary. There was significant public interest in getting to the bottom of what had happened. The presiding judge was not entitled to assume as a matter of routine that visual recordings of events in the courtroom while the trial was not going on would unsettle the accused so much that decision-making would be difficult. On the basis of the subject- matter of the proceedings and the identity of the accused, who were without exception experienced officers and sergeants of the army, it was not apparent without additional information that there was reason for such fears. The public's interest in visual documentation of what was happening around the trial includes their interest in the judges involved together with the lay assessors and extends to the public prosecutors and lawyers as organs of the administration of justice. The problems listed by the presiding judge which could result from the crowdedness of the courtroom could have been avoided by taking suitable precautions such as, for example, restricting the recording through the employment of a pool solution.