Order of 3 October 1969

R e a s o n s:

A.

I.

1

1. Under the Act on the Monitoring of Criminal and Other Prohibitions on the Movement of Objects (Gesetz zur Überwachung strafrechtlicher und anderer Verbringungsverbote, Monitoring Act, Überwachungsgesetz – GÜV) of 24 May 1961 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 607), postal and customs authorities must ensure that no items (e.g. newspapers, magazines, brochures, informational publications) whose import or distribution are prohibited by a criminal law for reasons of state security are brought into the territory covered by the Act. The postal and railway authorities therefore remove any mailings, especially those from the German Democratic Republic (GDR), for which there are specific indications that the material therein might violate these laws. These authorities then forward the suspected illegal postal items to the central customs offices, which are authorised to open these items and search them. If a suspicion remains that an item violates a criminal law enacted for reasons of state security, the central customs offices will forward it to the public prosecution office, which may apply for confiscation of the item in accordance with the provisions of the Code of Criminal Procedure (Strafprozessordnung – StPO). An item may only be withheld indefinitely if a criminal court has ordered its confiscation. Confiscation is usually ordered in general proceedings that are not directed against a specific person; they therefore typically not only concern the individual item alleged to violate criminal law, but the entire print run.

2

Over the last few years, millions of publications have been confiscated, with the majority originating from the GDR. In addition to brochures and magazines produced specifically to be sent to the Federal Republic of Germany, newspapers and other pamphlets that are regularly published in the GDR were also confiscated. […]

3

In accordance with Art. 8 of the Eighth Act Amending the Criminal Law (Achtes Strafrechtsänderungsgesetz) of 25 June 1968 (BGBl. I p. 741) in the version of the Act of 31 March 1969 (BGBl. I p. 269), GDR newspapers and periodicals are currently no longer subject to confiscation insofar as they are obtained through the postal newspaper service or through stores.

4

2. In 1964, the complainant had acquaintances post daily newspapers from the GDR to him in Münster/Westphalia for informational purposes. One such mailing contained a copy of the Leipziger Volkszeitung (Leipzig People’s Newspaper) of 8 May 1964. This mailing was intercepted following a check under the Monitoring Act in Braunschweig, opened by officials from the Braunschweig Central Customs Office and forwarded to the Braunschweig Public Prosecution Office. The Public Prosecution Office withheld the mailing. In early June 1964, the complainant applied for the release of the paper seized by the public prosecution office; he argued that an acquaintance had sent it to him for his own informational purposes. The public prosecution office informed the complainant that the paper in question had been confiscated by a court. The complainant immediately requested a copy of the court decision. In September 1964, he received a copy of a confiscation order of the Braunschweig Regional Court (Landgericht), but this order concerned a different publication. After the complainant objected, the public prosecution office informed him that all copies of the issue of the Leipziger Volkszeitung sent to him had been generally confiscated by orders of the Frankfurt and Lüneburg Regional Courts. Upon his request, on 31 December 1964 a copy of the order of the Lüneburg Regional Court of 21 May 1964 was sent to the complainant.

5

3. In this order, the Lüneburg Regional Court had confiscated issue no. 126 of the Leipziger Volkszeitung of 8 May 1964 on the grounds of a violation of §§ 42 and 47 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) and of §§ 128, 94 and 90a of the Criminal Code (Strafgesetzbuch – StGB). In the reasons attached to the order, a further violation – of § 97 of the Criminal Code – was found. The order became final on 15 June 1964.

6

In its reasoning, the Regional Court stated that the paper was originally distributed by the Sozialistische Einheitspartei Deutschlands (SED), [the ruling party] in the GDR. According to the court, mailing such items to the Federal Republic of Germany served to promote the endeavours of the Kommunistische Partei Deutschlands (KPD), a group operating illegally [in the Federal Republic of Germany] that is controlled by the Sozialistische Einheitspartei Deutschlands (SED) and whose aim is to introduce the  violent and tyrannical rule that exists in the GDR in the Federal Republic of Germany ([…]). […]

7

The order does not state whether specific articles in the paper are objectionable or whether the mere mailing of the paper serves to promote the KPD irrespective of the paper’s contents. […]

8

[…]

II.

9

With his constitutional complaint, received at the Federal Constitutional Court on 22 January 1965, the complainant asserts that the order of the Lüneburg Regional Court of 21 May 1964 violates Art. 2(1) and Art. 5(1) of the Basic Law (Grundgesetz – GG).

10

1. […]

11

2. In his submission, received at the Federal Constitutional Court on 22 February 1965, the complainant also expressly asserts a violation of his right to be heard under Art. 103(1) of the Basic Law. According to the complainant, the Regional Court assumes that the addressees of mailings are not parties in general confiscation proceedings. He argues that in doing so, the court fails to recognise that the right to information grants addressees the status of parties in general confiscation proceedings, regardless of what other laws may provide.

III.

12

The Federal Minister of Justice submitted a statement on behalf of the Federal Government. […]

13-15

[…]

B.

16

The constitutional complaint is admissible in part.

17

1. The challenge of a violation of Art. 103(1) of the Basic Law is untimely. […]

18

2. The remainder of the constitutional complaint is admissible.

19-20

[…]

C.

I.

21

The constitutional complaint is well-founded.

22

1. In finding that the production and dissemination of the seized paper violated the provisions listed in the operative part of its decision, and in ordering its confiscation, the Regional Court did not expressly take into consideration the freedom of expression and freedom of the press of the producers and distributors of this paper which were affected by this decision. This is not objectionable under constitutional law. Although it cannot be ascertained from the order which specific statements of the newspaper articles are considered to be anti-constitutional, it can be inferred from the overall reasoning that the Regional Court assumed that the production and dispatch of the paper were meant to promote endeavours of the KPD, which operates illegally [in the Federal Republic of Germany] and is controlled by the SED, in violation of §§ 42 and 47 of the Federal Constitutional Court Act and of §§ 128, 94 and 90a of the Criminal Code. In the case of such direct support of the banned KPD, the restrictions on freedom of expression and freedom of the press are permissible due to the paper’s effect of promoting the organisation, and the application of the criminal provisions is not objectionable under constitutional law in this regard (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 25, 44 <55 ff.>). […]

23

2. In ordering the confiscation, however, the Regional Court failed to take account of the permeating effect of the right, guaranteed in Art. 5(1) first sentence of the Basic Law, of recipients or readers of the paper to inform themselves without hindrance (freedom of information). The confiscation order of the criminal court affects the scope of this fundamental right insofar as it prevents access to newspapers, one of the most important information resources.

24

When the Eighth Act to Amend the Criminal Law was enacted, several stakeholders took the view that making it more difficult to obtain newspapers from the GDR does not affect the fundamental rights of the citizens of the Federal Republic of Germany ([…]). Yet this fails to recognise that obtaining newspapers is a two-way communication process that is constitutionally protected both by the freedom to express and disseminate one’s opinions and by the freedom of information. An interference with the communication process therefore affects both freedoms.

25

The provisions of criminal law (§§ 86 and 98(2) of the Criminal Code) on which the Regional Court relied for its decision do not mandate confiscation, but instead leave the decision to the discretion of the court. According to the case-law of the Federal Constitutional Court, these provisions, which are general laws restricting the fundamental right within the meaning of Art. 5(2) of the Basic Law, must be considered in light of the significance of the fundamental right to freedom of information and must be interpreted in such a way that the special values enshrined in this fundamental right are upheld (cf. BVerfGE 7, 198 <208 ff.>; 25, 44 <55>). In exercising its discretion, the Regional Court was required to balance the interests protected by the fundamental right to freedom of information against the legal interests protected by the criminal provisions. To this end, a determination of the substance and scope of the fundamental right was necessary.

II.

26

1. Until 1945, German constitutional history did not recognise an independent fundamental right to obtain information from generally accessible sources without hindrance. This freedom of information was incorporated into various Land constitutions after the Second World War ([…]), and subsequently into the Basic Law. The creation of an independent constitutional guarantee of freedom of information in the Basic Law was a response to the restrictions on information, the control of opinions by the state, the prohibitions on listening to foreign radio stations and the banning of literature and works of art under the Nazi regime.

27

2 a) In the constitutional order, freedom of information has the same standing as freedom of expression and freedom of the press. It is not a mere component of the freedom to express and disseminate opinions. While freedom of expression also protects the reception of opinions by others, protection is only granted to those making a statement for the sake of their freedom of expression. The recipient only has a passive role. By contrast, freedom of information specifically protects the right to inform oneself. This freedom is a prerequisite for the opinion-forming process that precedes the expression of opinions. Only when comprehensive information is available, which is ensured by sufficient sources of information, is it possible for the individual and society to freely form and express opinions. Finally, having a free press that provides comprehensive information facilitates citizens’ ability to form opinions and to make political decisions (BVerfGE 20,162 <174>).

28

Two elements are determinative for the freedom of information guaranteed by Art. 5(1) first sentence of the Basic Law. The first is its link to the principle of democracy under Art. 20(1) of the Basic Law: a democratic state cannot exist without free public opinion that is as well-informed as possible. Second, freedom of information has an individual element derived from Art. 1 and Art. 2(1) of the Basic Law. Obtaining information from as many sources as possible, expanding one’s knowledge and thus developing as a person is a fundamental human need. Moreover, in modern industrial society, the possession of information is essential for the social status of the individual. Like the fundamental right to freedom of expression, freedom of information is one of the most important prerequisites of a liberal democracy (cf. BVerfGE 7, 198 <208>). It is only through this freedom that citizens are in a position to create the framework necessary to perform their personal and political duties so as to be able to act responsibly in the democratic sense. As citizens become better informed, they can recognise political interactions and their significance for their existence and can draw conclusions therefrom; their freedom to assume responsibility and to express criticism grows. Furthermore, information can enable individuals to learn about the opinions of others, to weigh different opinions, to overcome prejudices and to come to understand those who think differently.

29

The special significance accorded to freedom of information, including at international level, is demonstrated by the supranational endeavours that have been made since 1945 to protect this freedom as an independent right. After the resolution of the United Nations General Assembly of 14 December 1946, which understood freedom of information in a comprehensive sense that even included freedom of expression, the UN General Assembly went on to lay down the following principle in Art. 19 of the Universal Declaration of Human Rights of 10 December 1948:

30

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

31

In a similar vein, Art. 10(1) first and second sentence of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 provides:

32

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

33

b) Art. 5(1) first sentence of the Basic Law not only protects the proactive obtaining of information, but also the simple receipt of information. The Basic Law aims to ensure that the individual is informed as comprehensively as possible. It is also possible to inform oneself from sources that enter the recipient’s perception without any action on their part. This is because it is only through the possession of information that an independent choice is possible. This aspect of choice is the basic element of any information. If freedom of information did not guarantee that the individual could access information sources in the first place, this would hinder them from actively choosing among different information sources. The term ‘inform oneself’ therefore also means the purely intellectual process of absorbing information. Individuals already inform themselves when information is sent to them by post. If access to information is disrupted in this process, a subsequent challenge of a violation of freedom of information cannot be rejected on the grounds that the individual did not order the publication and therefore there is no interference with the freedom to ‘inform oneself’. It is inherent in this right that the will to inform oneself may only be actualised once the mailing has been received.

34

c) Freedom of information is only guaranteed under constitutional law for sources of information that are generally accessible.

35

This is typically the case if the source in question is geared towards and intended to provide information to the general public, i.e. an indeterminate group of persons. Newspapers and other means of mass communication are therefore by nature generally accessible sources of information. They do not lose their character as generally accessible sources if the possibility of general access is restricted by state measures such as confiscations, import bans or import restrictions. Such restrictions on unhindered access to a source of information do not mean that it is no longer considered generally accessible ([…]). What is solely decisive is the actual way in which information is distributed, not the state order or directive.

36

The view that the question of whether a source is generally accessible is primarily determined by acts of state authority ([…]) runs counter to the purpose of the constitutional guarantee of freedom of information. Individuals must be permitted to form their opinions on the basis of a wide range of information sources. In selecting these sources, they may not be influenced by the state. As the freedom of information, in view of its connection with the principle of democracy, is meant to lay the foundation for an appraisal of the policies of state organs, this fundamental right must be protected from restrictions by these state organs.

37

The legislative history of the fundamental right to freedom of information, which is of particular significance due to the relative newness of this right, also demonstrates that the question of whether an information source is generally accessible must be determined solely on the basis of factual criteria. Freedom of information was enshrined in the Constitution specifically in response to the prohibitions and restrictions on information under the Nazi regime in order to guarantee unhindered access to information, including from sources that are outside the Federal Republic of Germany’s sphere of control. If an information source is generally accessible in any location, including outside of the Federal Republic of Germany, even a final confiscation order cannot deprive it of its character as a generally accessible source.

38

A systematic interpretation of Art. 5 of the Basic Law leads to the same conclusion. The limitation set by the ‘general laws’ in Art. 5(2) of the Basic Law applies to all the fundamental rights set out in Art. 5(1). However, this limitation would be largely devoid of purpose for freedom of information if the state could determine which sources of information are generally accessible and could thereby restrict the scope of this fundamental right at will.

39

A source also does not lose its status as generally accessible when it is part of a mailing. When determining whether a source is generally accessible, it is not the individual copy that is relevant, but the entire print run of a paper. This constitutes the source within the meaning of Art. 5(1) first sentence of the Basic Law. Obtaining an individual copy is merely the specific manifestation of the freedom to inform oneself.

III.

40

1. In light of the foregoing, issue 126 of the Leipziger Volkszeitung of 8 May 1964, which is affected by the Regional Court’s confiscation order, must be considered a generally accessible source within the meaning of Art. 5(1) first sentence of the Basic Law. Its confiscation therefore adversely affects the complainant’s freedom of information. The confiscation order must be reversed because the Regional Court failed to take account of the permeating effect of freedom of information.

41

2. In the balancing of interests to be conducted by the Regional Court on the basis of the substance of freedom of information as set out in the present decision, the court will have to take into account the following considerations:

42

a) The finding that a publication violates criminal laws – which is not objectionable under constitutional law – does not necessarily mean that the right to information must take a back seat. The balancing of freedom of expression and freedom of the press of the producer and distributor of a publication against the legal interests protected by the criminal laws concerns an activity that creates the potential for danger. By contrast, freedom of information only has an effect on such publications when general access to information has previously been granted. The fundamental rights interest of citizens seeking to obtain information requires a special balancing of interests. Only risks arising as a consequence of the process of obtaining information justify the imposition of restrictions on the individual, who, under the Basic Law, is empowered and called upon to participate in the public opinion-forming process.

43

b) The restrictions on freedom of information cannot be justified simply by the argument that the press in the Federal Republic of Germany reports sufficiently on the situation in the GDR and the views of those in power there. For an accurate picture of the reports and opinions contained in GDR papers, it is necessary to directly read those papers.

44

The right to information also would not have been overridden from the outset if a provision such as Art. 8 of the Eighth Act to Amend the Criminal Law had existed at the time of the confiscation order. Allowing for individual channels to receive the information in question (postal newspaper service or stores) would only be sufficient with regard to the freedom of information if such channels actually served to make the information generally accessible. This is not the case here, however, as the GDR does not send more newspapers to the Federal Republic of Germany via the allowed channels than before ([…]). If it is also possible to receive the newspapers by post, then the state’s interest in ‘channelling’ the newspaper imports does not take precedence, since each citizen has the right to realise their interest in receiving information.

45

c) According to the operative part of the confiscation order, the confiscation is based on criminal provisions that serve to protect the free democratic basic order as such. This also applies to § 128 of the Criminal Code, which – while providing for overarching protection of the public order – only applies in this case with regard to protection of the constitutional order, as it is intended to avert the particular dangers arising from the underground activities of a banned organisation.

46

In the context of the necessary balancing of interests, the competent court cannot merely look at the threat posed by the effects on the individual recipient in isolation, but instead must assume that large quantities of these publications are being sent to the Federal Republic of Germany. It therefore must review whether there is a general threat under the given circumstances. On the other hand, the present proceedings solely concern press products published in the GDR that are primarily intended for the public there; these are not publications that are produced specifically to stir up unrest in the Federal Republic of Germany. These two types of publications must be treated differently in terms of their scale and effects. The discussion regarding the lawfulness and political expediency of the restrictions on the import of publications from the GDR mainly revolves around daily newspapers and other periodicals from the GDR. It is often argued that the permission to freely obtain GDR newspapers as it currently stands is no significant threat to our basic order, provided that the papers in question are not covertly designed specifically to subvert the Federal Republic of Germany. […]

47

[…]

48

d) If, in balancing the interests, the Regional Court does not find that the freedom of information afforded to every citizen takes precedence, it will then have to examine whether there is a special, legitimate interest in obtaining information on the part of individuals (cf., e.g., Decisions of the Federal Court of Justice in Criminal Matters, Entscheidungen des Bundesgerichtshofes in Strafsachen – BGHSt 19, 245 <256>) that mandates that the confiscation of all copies of the newspaper be restricted to their benefit, especially since, despite the existence of the prerequisites for confiscation, the courts have discretion to determine whether the newspapers concerned are to be confiscated.

49

3. The complainant’s assertion that the challenged decision violates Art. 5(1) first sentence of the Basic Law is sufficient for ordering its reversal, as there are deficiencies in the application of the substantive law on confiscation. A review on the basis of Art. 2(1) of the Basic Law is not necessary (cf. BVerfGE 11, 234 <238>).

50

There is also no need to decide here whether the fundamental right to freedom of information warrants a specific procedural design, such as the granting of further legal remedies against confiscation decisions, the possibility to reopen proceedings or more extensive participation of affected persons in the general confiscation proceedings than that which, according to prevailing opinion, results from the relevant provisions (§ 431(2) of the Code of Criminal Procedure (old version) – now §§ 440 and 431 of the Code of Criminal Procedure as amended by Art. 2 no. 16 of the Introductory Act to the Act on Administrative Offences, Einführungsgesetz zum Gesetz über Ordnungswidrigkeiten – EGOWiG).