Application for a preliminary injunction against a procedural order in the case of the fatality of Y. meets with partial success

Press Release No. 71/2014 of 07 August 2014

Order of 31 July 2014
1 BvR 1858/14

In an order dated 31 July 2014, the Third Chamber of the First Senate of the Federal Constitutional Court partially granted an application for a preliminary injunction in Case 1 BvR 1858/14. The underlying constitutional complaint is directed against a procedural order limiting press coverage of a trial. The complainant is a company that publishes a number of newspapers.

Facts of the Case and Course of the Proceedings:

On 11 June 2014, Grand Criminal Division 1 of a German Regional Court (Landgericht) began the trial in the case of a three-year-old girl who died of internal injuries in December 2013. Accused are the child’s parents. The father is charged with ill-treatment of an individual in his care and bodily injury resulting in death. The mother is charged with murder. The first date for hearings was 11 June 2014. A total of 22 hearings have been scheduled up to the end of September. The next hearing is set for 11 August 2014. The proceedings have been covered extensively in the regional and national media and have aroused such sustained interest among the public that a parliamentary committee of inquiry has been formed to investigate possible errors by the authorities and agencies in charge.

On 3 June 2014, the presiding judge of the Grand Criminal Division of the Regional Court issued a procedural order to the media with the following wording:

In the proceedings against the parent of the child …, who died in December 2013, the presiding judge has issued the following order under § 176 of the Law on the Constitution of Courts (Gerichtsverfassungsgesetz­– GVG):

1. Sound, photographic and film recordings in the courtroom will be permitted subject to the “pool solution” described below.

a) If the media so desire, photographic and television recording will be permitted in the courtroom on each hearing day, immediately before the main hearing, and only in the court’s presence, subject to what is known as a “pool” solution and to the requirement that the recording does not disrupt the proceedings.

(…)

3. Filming and photography are not permitted in the anteroom to the courtroom (for Room 237 this is the entire area behind the steel door) and within a radius of 5 metres from the entrance to the courtroom.

4. Recordings and drawings of the two accused must be anonymised unless the accused give their express consent to a different arrangement.

5. Close-ups (portrait shots) of the court are not permitted.

6. Close-ups (portrait shots) of counsel for the defence and for the public prosecutor’s office are permissible only with their express consent.

7. No pictures of witnesses or experts may be taken without their consent.

8. Otherwise, photography, filming and tape recording are not permitted in the courtroom. Recording devices, mobile telephones and laptops must be turned off during the proceedings.

9. The above rules do not relieve the media representatives of their obligation to check and ensure that their reporting does not violate the various individuals’ personality rights.

10. Interviews or conversations resembling interviews cannot be conducted within the courtroom with those involved in the proceedings.

(…)

In his opinion in response to an inquiry from the Federal Constitutional Court (Bundesverfassungsgericht), the presiding judge subsequently explained the reasons for the order as follows: Because of the great interest shown by the media, he had chosen the pool solution, which has been recognised and approved in the relevant case law. For the remainder, the challenged order was the result of a balancing of interests, taking due account of the high priority of the freedom of the press guaranteed under Art. 5 GG, the justified interests and personality rights of the two accused and all other persons involved in the proceedings, and the obligation to ensure an orderly and focused course of the hearing. This balancing of interests is not explained any further.

The complainant, who states that it had no knowledge of the reasons for the challenged decisions, challenges Items 1 a), 3 through 8, and 10 of the procedural order, as well as Item 4 insofar as express consent from the accused is required for any non-anonymised portrayal, and it seeks to have the order set aside.

Key Considerations of the Chamber:

1. In expedited proceedings, the Court set aside Items 1a), 3, 5, 6, 7 and 8 sentence 1 of the procedural order because the constitutional complaint is clearly well-founded with respect to the rules imposed in these items. It held that if a review in expedited proceedings for legal protection shows that a constitutional complaint would be clearly well-founded, and if a decision in the principal proceedings would evidently come too late, failure to grant that protection would result in a severe detriment to the common good.

2. The parts of the procedural order that were set aside are unconstitutional because the presiding judge provided the concerned parties with no grounds for the order. The opinion submitted subsequently could not remedy the absence of grounds.

a) Sound and photographic recordings immediately before or after a hearing, or in a recess, are covered by freedom of the press and broadcasting. An order that excludes or limits such recordings therefore must presuppose, in the interest of the effective substantive protection of constitutional rights, that the presiding judge will disclose the grounds that gave rise to his decision, and thus make evident to the concerned parties that all relevant circumstances have been given due consideration. In so doing, the presiding judge must take account of the importance of freedom of the press, and comply with the principle of proportionality. The exercise of discretionary powers must allow for freedom of the press, on the one hand, and on the other hand, the protection of the general personality right of the individuals concerned, specifically the accused and the witnesses, as well as the parties’ right to a fair trial (Art. 2 sec. 1 in conjunction with Art. 20 sec. 3 GG), along with the proper functioning of the administration of justice, particularly the undisturbed determination of the truth and application of the law. The presiding judge must set forth the circumstances that necessitate restrictions on the freedom of the press if they are not self-evident or to be taken for granted by a reasonable party to the proceedings.

That was not done in the present case. No grounds were given for the procedural order itself. This shortcoming was not remedied by the subsequent opinion, in which the presiding judge explained only the reasons for the pool solution, but otherwise, without discussing any further details of the specific circumstances, simply asserted that the challenged order was the result of a balancing of interests. As a substantive explanation of the grounds is ultimately absent, the indicated items of the procedural order must be set aside.

b) The presiding judge will have to examine whether to issue a new order. Orders which restrict making photographic and television recordings of events in the courtroom peripherally to the main proceedings, in accordance with § 176 GVG, thereby interfering with freedom of the press, must be supported by specific grounds relating to aspects of the conduct of the hearing and intended to protect the accused and other participants in the proceedings, the undisturbed conduct of the hearing, or the conditions for an undisturbed application of the law and determination of the truth.

Interests must also be balanced in the matter of taking photographs of witnesses and experts. If portrayal represents a significant nuisance or danger to their safety, protection from undesired portrayals can also serve towards an objective conduct of the proceedings, conducive to arriving at the truth. The matter may be different if witnesses or experts have already voluntarily gone public with their statements.

3. Otherwise, the complainant’s request for a suspension of the procedural order does not meet with success; it is inadmissible with respect to Item 4 of the order, and is unfounded with respect to Item 8 sentence 2 and Item 10. The prohibition of interviews and conversations similar to interviews (Item 10) represents no serious detriment to the complainant within the meaning of § 32 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). In so far as the complainant challenges the prohibition on laptops, recording devices and mobile telephones, the constitutional complaint is clearly unfounded. This is a generalising rule that ensures the orderly conduct of proceedings. The reasons for prohibiting these devices are self-evident. If recordings are made during the proceedings, the parties’ right to a fair trial (Art. 2 sec. 1 in conjunction with Art. 20 sec. 3 GG) is violated. By contrast, the order does not materially interfere with freedom of the press.