Searches of media organs may not primarily serve the purpose of investigating possible crimes of informants

Press Release No. 61/2015 of 28 August 2015

Order of 13 July 2015
1 BvR 1089/13, 1 BvR 1090/13

Searches of offices or homes of journalists may not serve the primary purpose of investigating possible crimes of informants. Rather, there must be sufficient factual reasons to believe that the journalist concerned may have committed a crime that would eliminate the protection against seizures enshrined in § 97 sec. 5 sentence 1 of the Code of Criminal Procedure (Strafprozessordnung – StPO). Such was the decision of the Third Chamber of the First Senate of the Federal Constitutional Court in two orders published today. In so deciding, it granted the constitutional complaints lodged by a journalist and a newspaper publishing house against searches by the police.

Facts of the Case and Procedural History:

The complainants are a journalist and a newspaper publishing house. In spring of 2011, the journalist travelled to Amsterdam to investigate the disappearance of two children in the 1990s. He was accompanied by senior police detective (Polizeioberkommissar) N., who billed the chief editor of the publishing house in the amount of 3,149.07 euros. The bill ended with the words: “Because of the secretive nature of the affair I kindly request cash payment.” This bill was discovered by investigative authorities, who were investigating N. for possible breach of secrecy (§ 353b of the Criminal Code [Strafgesetzbuch – StGB]). N. was suspected of having informed journalists of an impending raid of the Berlin police against motorcycle clubs. However, the information about the impending raid was published not by the publishing house but by a web platform unaffiliated with it.

In November 2012, the editorial offices of the publishing house as well as the home of the journalist were searched for suspicion of bribery (§ 334 StGB). The search order was based on a payment by the journalist to N. in the amount of 100.00 euros as well as on the bill mentioned above. According to the order, the secrecy of the trip, the unusually high daily rate of 500.00 euros as well as the request for cash payment gave rise to the suspicion that the services performed by N. for the newspaper were related to his official duties. The complainants asserted, however, that N. accompanied the journalist as a security expert and while he was off duty. They claim that the 100.00 euros were advanced to N. in order to buy two jackets and were later paid back.

Key Considerations of the Chamber:

The constitutional complaints are well-founded.

1. The protection of the freedom of the press applies (Art. 5 sec. 1 sentence 2 of the Basic Law [Grundgesetz– GG]). It encompasses protection against encroachment by the state on the confidentiality of editorial work as well as on the confidential relationship between the press and their informants. This protection is indispensable, since the press cannot do without private information, which it will only receive if informants can generally rely on the secrecy of editorial work. Because they disrupt editorial work and bring with them the risk of intimidating informants and journalists, searches of press offices constitute an encroachment on the freedom of the press.

2. The encroachment by ordering the search of the editorial offices and seizing objects found there is not justified under the Constitution.

a) According to Art. 5 sec. 2 GG, the freedom of the press is limited by the general laws. The provisions of the Code of Criminal Procedure are recognised as general laws. However, they must be viewed in light of the fundamental right that is the freedom of the press. The freedom granted by Art. 5 sec. 1 sentence 2 GG must be put in relation with the legal interest protected by the limiting provisions. The legislature made such an assessment when on the one hand it restricted the general obligation to testify under § 53 sec. 1 no. 5 StPO for members of the media as well as the possibility of seizing objects in the possession of journalists or in editorial offices (§ 97 sec. 5 sentence 1 StPO) and on the other hand allowed seizures in case the witness or the seized object is involved in criminal acts (§ 97 sec. 5 sentence 2, sec. 2 sentence 3 StPO). In doing so, the legislature struck a balance that is acceptable at least in principle between protecting the free press on the one hand and the legitimate state interest in a functioning criminal prosecution on the other. The Court need not decide whether the legislature would have been permitted to design protection of the press and broadcasting in a stricter or a less strict manner.

According to the jurisprudence of the Federal Constitutional Court, however, these provisions are not exhaustive. Even in cases in which § 97 sec. 5 sentence 1 StPO does not apply because a journalist is one of the accused, Art. 5 sec. 1 sentence 2 GG remains relevant for interpreting and applying the rules of criminal procedure on searches and seizures in editorial offices or affecting journalists.

In 2012, the legislature decided that, subject to § 353b sec. 3a StGB, aiding and abetting breaches of secrecy shall no longer be a criminal offense. What remains punishable is incitement, acts of aiding and abetting before the fact as well as acts of aiding and abetting that go beyond receiving and publishing the information. These exceptions shall, inter alia, include paying money for information obtained in an official function. Giving due regard to Art. 5 sec. 1 sentence 2 GG, however, this rule cannot apply in cases in which searches and seizures are not based on a specific suspicion against the affected member of the press but rather serve the primary or exclusive purpose of investigating the informant. Searches require adequate factual reasons to believe that a crime has been committed that would eliminate the protection against seizures enshrined in § 97 sec. 5 sentence 1 StPO. General suspicions that official information might have been forwarded to the press do not satisfy the constitutional requirements.

b) In the present case, the investigative authorities were at least primarily concerned with finding incriminating evidence against an informant within the police – this becomes clear from the challenged decision by the Regional Court (Landgericht). The police believed that the informant was paid for providing information on impending police measures. However, the connection made by the police between the informant and the complainants was based on mere speculation: For it was not the complaining publishing house that published the information on the impending raid but a web platform unaffiliated with it. Furthermore, neither the search order nor the decision on the complaint [translator’s note: in the initial proceedings] indicate what information was allegedly paid for. The statutory offense of bribery, however, requires that an adequately specified official act be performed. Therefore, there are no adequate factual reasons to believe that the complainants committed a crime that would eliminate the protection against seizures.

The mere fact that the co-accused police officer used a “journalist mobile phone” registered in a fictional name does not give rise to a suspicion of bribery against the complainants. The mobile phone contained the names of the complainant as well as of a journalist of the web platform. This might indicate that the informant has forwarded official secrets to journalists. Because of the informant protection enshrined in Art. 5 sec. 1 sentence 2 GG, however, the mere interest of the investigative authorities to learn of these facts does not justify a search in the editorial offices of a press organ, unless there is any indication that the organ itself has committed criminal acts. It remains unclear why it was the complainant who was suspected of having received the information on the impending raid, even though the information was published by another online magazine, for which the informant also had an entry in his mobile phone.

Nor can a sufficiently probable suspicion of bribery be based on the request for cash payment on the bill for the trip to Amsterdam. The officer had called in sick in order to make that trip. It does not seem unrealistic that he feared disciplinary consequences because of his lie and because he had not requested permission to take sideline work. In any event, it does not give rise to a suspicion against the complainants.