Federal Constitutional Court - Press office -
Press release no. 24/2013 of 12 April 2013
Orders of 12 April 2013
1 BvR 990/13
1 BvR 1002/13
1 BvR 1007/13
1 BvR 1010/13
“NSU Trial”: Application of a Turkish Newspaper for a
Preliminary Injunction Successful in Part – Further Applications Unsuccessful
I.
In the proceedings 1 BvR 990/13, the Third Chamber of the First Senate
of the Federal Constitutional Court granted part of the relief sought in
an application for a preliminary injunction. The constitutional complaint
the application is based on concerns the accreditation procedure and the
allocation of reserved seats for media representatives in what is known
as the NSU trial before the Munich Higher Regional Court
(Oberlandesgericht). The complainants are a limited liability company
which publishes a Turkish-language newspaper and the newspaper’s deputy chief
editor.
Essentially, the Decision is Based on the Following Considerations:
1. Under § 32 sec. 1 of the Federal Constitutional Court Act
(Bundesverfassungsgerichtsgesetz – BVerfGG), the Federal Constitutional
Court, in a case of dispute, may provisionally provide for a situation
by preliminary injunction if this is advisable for the common good in
order to avert serious detriment, to prevent imminent violence or for
another compelling reason. In such a case, the arguments advanced to
substantiate the unconstitutionality of the state action challenged must
generally be left out of consideration unless the constitutional
complaint is, from the outset, inadmissible in its entirety or clearly
unfounded.
2. In the case at hand, the constitutional complaint is neither
inadmissible from the outset nor clearly unfounded. In particular, it
does not appear to be impossible that the complainants’ right to equal
treatment in the competition among journalists, located in Art. 3 sec. 1
GG in conjunction with Art. 5 sec. 1 sentence 2 GG, i.e. the right to
equal participation in the opportunities of reporting from court
proceedings, might be violated.
However, the decision on the opportunity of access to court proceedings,
on the reservation of a certain number of seats for media correspondents
and the distribution of a scarce number of seats among them is, in
general, a question which, in light of the protection of the
independence of the courts afforded by the Constitution, is first taken
according to ordinary law and rests within the power of the presiding
judge to direct the formal course of the proceedings in question. In
this decision, the presiding judge has a broad margin of appreciation.
The Federal Constitutional Court reviews the presiding judge’s orders
only insofar as they may violate constitutional law and reviews in
particular whether such orders are based on a fundamentally erroneous
view of the meaning of a fundamental right.
Whether, according to these standards, the challenged decisions violate
the complainants’ fundamental rights must be reviewed in detail; such
review raises difficult questions of law which cannot be finally
resolved in preliminary injunction proceedings. Therefore, the preliminary
injunction can only be based on a balancing of consequences.
3. If a constitutional complaint does not prove to be, from the outset,
inadmissible in its entirety or clearly unfounded, the consequences
which would occur if the preliminary injunction were not granted, but
the constitutional complaint were later successful, have to be weighed
against the disadvantages that would occur if the preliminary injunction
were granted but the constitutional complaint were unsuccessful.
a) If, in this case, no preliminary injunction were granted but the
constitutional complaint were successful, there would be a danger that
the complainants, without having been given the same opportunities as
other media representatives, als well as other foreign media with a special
relationship to the victims of the crimes brought to trial would remain
excluded from the opportunity of their own news coverage based on the
very essence of the court hearings as a whole in what is known as the
NSU-trial. In the present case, this weighs particularly heavy since
especially Turkish media representatives can claim a particular interest
to be able to cover this trial in complete independence because numerous
victims of the crimes brought to trial are of Turkish descent.
b) These disadvantages outweigh the disadvantages that would occur if
the application for a preliminary injunction were successful within the
limits of the operating clause while the principal constitutional
complaint would be unsuccessful. Because in this case, foreign media
with a special relationship to the victims of the crimes brought to
trial would have been granted reserved seats in the hearings of the
court, which they would not have had a right to according to the present
allocation of seats. If that would amount to unequal treatment of other
media because the seats already granted to them would be taken away, or
because they would not receive a seat from an additional allotment of
seats, this would weigh less heavy against the backdrop of the specific
interest these media have. In any case, the rights of media only exist
within the limits of selection that does justice to equality. Also, the
disadvantage that would occur for the general population if an
additional allocation of a few seats for the public at large were given
to certain media representatives is, in relation, smaller, because these
seats have not been specifically allocated to individuals and because,
according to the applicable principles, there is still an appropriate
number of seats allocated to the general public.
4. In proceedings for preliminary injunctions, the Federal
Constitutional Court may give an order, which is not to be understood as
the enforcement of a result required by the constitution, but as a
preliminary order to avoid or minimize impending disadvantages. This
applies even more in a situation like the present one, in which there
is, from the outset, no constitutional right to access to a trial, but
only a question of whether there is a violation of an opportunity to
equal participation, and in which disadvantages derive from a potential
violation of equal opportunities. The court order may focus on
alleviating these consequences. In the present case, this in part
anticipates the potential result of the principal proceedings; however,
this is permitted in exceptional cases if the decision in the principal
proceedings would be taken too late and no other sufficient recourse to
the courts could be granted.
For these reasons, the presiding judge of the 6th Senate in Penal
Matters of the Higher Regional Court is assigned to grant an adequate
number of seats to representatives of other foreign media with a special
relationship to the victims of the crimes brought to trial, according to
a procedure that is to be decided within the limits of his power to
direct the formal course of the proceedings. One possibility would be to
open up an additional allotment of no fewer than three seats, of which
seats would be distributed according to the principle of priority or by
the drawing of lots. But it also remains within the discretion of the
presiding judge to arrange the distribution of seats or the accreditation as a
whole according to different principles.
5. The further application by the complainants to completely suspend the
execution of the allocation of seats and the orders of the Higher
Regional Court to maintain security had to be denied because they did
not sufficiently state a reason for application for such an extensive
order of the Constitutional Court.
II.
The Third Chamber of the First Senate of the Federal Constitutional
Court, by orders without reasons given, did not declare admissible three
additional constitutional complaints that also applied for a preliminary
injunction.
The complainant of proceedings 1 BvR 1002/13 states that he reads
Turkish newspapers. He essentially challenges that, due to the fact that
no Turkish newspaper has been accredited so far, he cannot inform
himself first-hand about what is known as the NSU trial.
The complainant of proceedings 1 BvR 1007/13 would like to be part of
the general audience of the proceedings. He essentially regards himself
as adversely affected by the fact that 50 seats are allocated to the
press.
The complainant of proceedings 1 BvR 1010/13 is a journalist with his
own media business, with accreditations for this media, himself and a
colleague to what is known as the NSU trial. He challenges both
that a “change of staff”, for instance due to illness, is not possible,
and the formal course of the accreditation procedure.
This press release is also available in the original german version.
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