Federal Constitutional Court - Press office -
Press release no. 9/2008 of 29 January 2008
Order of 19 December 2007 – 1 BvR 620/07 –
Television reporting at court while the court is in recess is in principle
permissible where the public has a strong interest in receiving information
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.
This press release is also available in the original german version.
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