Headnote

to the Order of the First Senate of 19 December 2007

1 BvR 620/07

1. On the significance of the fundamental right to freedom of broadcasting under Article 5(1) second sentence of the Basic Law for judicial orders, issued in exercise of the presiding judge’s powers to maintain order in court, with regard to audio and film recordings immediately before and after oral court hearings as well as during recesses.

FEDERAL CONSTITUTIONAL COURT

- 1 BvR 620/07 -

IN THE NAME OF THE PEOPLE

In the proceedings

on the constitutional complaint of

the Federal Constitutional Court – First Senate – with the participation of Justices

President Papier,

Hohmann-Dennhardt,

Hoffmann-Riem,

Bryde,

Gaier,

Eichberger,

Schluckebier

held on 19 December 2007:

2. The Order of the Presiding Judge of the Eighth Grand Criminal Division of the Münster Regional Court of 21 February 2007 - 8 KLs 81 Js 1837/04 (25/05) - violates the complainant’s fundamental right to freedom of broadcasting under Article 5(1) second sentence of the Basic Law.

REASONS :

A.

The constitutional complaint concerns the permissibility of filming in the courtroom before and after the trial hearing in criminal proceedings.

I.

1. The complainant is a public broadcasting corporation. It had planned to report on a trial hearing before […] [the] Münster Regional Court scheduled to begin on 19 March 2007.

In the indictment, […] officers of the Bundeswehr (German Federal Armed Forces) were charged with physical abuse and degradation of recruits. […]

Print and broadcasting media had […] repeatedly reported on the incidents and the opening of criminal proceedings […].

[…]

2. On 21 February 2007, the presiding judge of the Eighth Grand Criminal Division of the Münster Regional Court ordered the following restrictions on media reporting pursuant to § 176 of the Courts Constitution Act to maintain order in the upcoming trial hearing:

Audio and film recordings and the taking of photographs in the courtroom and in the foyer leading to the courtroom (in the access-restricted security area) are permitted until 15 minutes before the beginning of the hearing and for 10 minutes after the end of the hearing. For the rest, audio and film recordings and the taking of photographs are not permitted in the courtroom or the foyer leading to the courtroom.

[…]

3. […]

4. […]

II.

The complainant asserts that its fundamental rights under Art. 5(1) second sentence and Art. 19(4) of the Basic Law have been violated […].

[…]

III.

Statements on the constitutional complaint were submitted by the Federal Ministry of Justice on behalf of the Federal Government, the Ministry of Justice of the Land North Rhine-Westphalia, the President of the Federal Court of Justice and the President of the Federal Administrative Court. Moreover, the presiding judge of the Eighth Grand Criminal Division of the Münster Regional Court was given the opportunity to submit a statement on the application for a preliminary injunction and on the constitutional complaint.

[…]

B.

I.

The constitutional complaint is admissible.

[…]

II.

The constitutional complaint is well-founded. The Order of the Presiding Judge of the Eighth Grand Criminal Division of the Münster Regional Court of 21 February 2007 restricts media reporting on a trial hearing in criminal proceedings by prohibiting audio and film recordings immediately before and after the hearing. This violates the complainant’s fundamental right to freedom of reporting by the broadcast media guaranteed under Art. 5(1) second sentence of the Basic Law.

1. Freedom of reporting by the broadcast media (Art. 5(1) second sentence of the Basic Law) protects [the entire journalistic process], from the gathering of information to the creation of broadcast contents and their dissemination (cf. BVerfGE 91, 125 <134 and 135>; established case-law). Insofar as the media partake in access to a source of information that is open to everyone, access for both the media and the public is protected by the general right to freedom of information under Art. 5(1) first sentence of the Basic Law. By contrast, the use of broadcast-specific means for recording, in particular audio and film recordings, falls under freedom of broadcasting under Art. 5(1) second sentence of the Basic Law, which is applicable in such cases as the more specific fundamental right (cf. BVerfGE 103, 44 <59>). Its scope of protection covers the right to use the means of presentation specific to broadcasting for reporting purposes, including sound and images, which convey, in particular, the impression of authenticity and of witnessing an event first-hand (cf. BVerfGE 103, 44 <67>). This also applies to media reporting on a public court hearing.

2. However, neither freedom of broadcasting nor freedom of information generally give rise to a right to be granted access to a source of information [that is not already open to the public]. A right of access vis-à-vis the state may, however, arise in cases where the state does not grant sufficient access to a source of information within its sphere of responsibility, even though the relevant source is statutorily defined as publicly accessible (cf. BVerfGE 103, 44 <59 and 60>). These conditions are met if permission to make audio and film recordings in the context of a court hearing is denied in cases where the public interest in the dissemination of such recordings outweighs conflicting interests.

a) […]

In principle, constitutional law recognises an objective mandate, deriving from the principles of the rule of law and democracy, to guarantee the opportunity for the public to observe and possibly monitor court proceedings. To that end the media may report on proceedings, and broadcast stations may make audio-visual recordings, unless a specific prohibition applies that imposes a general ban or a prohibition is merited in the individual case to protect conflicting interests. […]

In general, media presence in the courtroom and media reporting promote public scrutiny of court hearings (cf. BGH, Order of 10 January 2006 - 1 StR 527/05 -, NJW 2006, p. 1220 <1221>). Satisfying the interest of the public in obtaining information about court proceedings not only serves the general objective of contributing to the formation of individual and public opinion; it also serves the interest of the judiciary in raising public awareness of judicial proceedings and decisions […]. Pursuant to § 169 second sentence of the Courts Constitution Act, audio and film recordings of the hearing itself are not permitted, in line with constitutional law (cf. BVerfGE 103, 44 <66 et seq .>); rather, public scrutiny of court hearings is achieved by the principle of public court sessions and by media reporting on the events in the courtroom [without direct recordings]. Nevertheless, using footage of a courtroom and the persons acting within it may provide the general public with a clearer impression of court proceedings, which serves to satisfy the information interest.

[…]

b) The law governing the organisation of courts does not prohibit broadcast reporting that takes place right before or after the hearing; it also does not prohibit broadcasting during recesses, which are part of the court session but not of the actual hearing within the meaning of the law (cf. BGHSt 23, 123 <125>). However, further restrictions may be imposed by judicial orders issued in exercise of the presiding judge’s powers to maintain order in court (sitzungspolizeiliche Anordnung ) under § 176 of the Courts Constitution Act (cf. BVerfGE 91, 125 <136>).

aa) Insofar as procedural law does not provide otherwise, the presiding judge has discretion as to the conduct of the court hearing and as to orders in exercise of the powers to maintain order in court […]. When exercising this discretion, the presiding judge must have regard to the importance of broadcasting for ensuring public awareness and scrutiny of court proceedings, as well as to interests that oppose such broadcasting. The presiding judge must also ensure that the principle of proportionality is observed. If the interest in reporting by means of audio and film recordings outweighs other interests that must be taken into account in the exercise of the presiding judge’s discretion, the opportunity to make such recordings must be provided (cf. BVerfGE 91, 125 <138 and 139>).

(1) In assessing the interest of the public in obtaining information, the subject matter of the court proceedings in question is a significant factor. In criminal proceedings, factors that must be taken into account include, in particular, the seriousness of the charges, but also the level of public attention the case has attracted, for instance due to special circumstances or the context of the crime, the identity of the persons implicated in it, fear of similar crimes being committed or sympathy for the victims and their families. The weight and importance attached to the information interest generally increase the more the charges at issue stand out when compared to ordinary crime, for example because of the way in which the crime was committed or the special nature of its target (cf. BVerfGE 35, 202 <231>). A weighty interest [of the public] in obtaining information may also result from the nature of the court case as such even if the accused themselves are not considered figures of paramount significance for contemporary society […].

The interest of the public in obtaining information is generally not limited to the accused and the charges laid against them, but also extends to the persons who, as members of the adjudicating body or the public prosecution office, partake in administering justice in the name of the people. Furthermore, legitimate information interests may, in principle, be directed at lawyers […] or other persons involved in the proceedings, such as witnesses.

(2) In the presiding judge’s exercise of their discretion and the balancing of interests it entails, the judge must take into account legitimate interests opposing the creation and dissemination of audio and film recordings. These include, in particular, the protection of the general right of personality of the persons involved in the proceedings, i.e. of the accused and the witnesses, and their right to a fair trial (Art. 2(1) in conjunction with Art. 20(3) of the Basic Law), as well as the proper functioning of the administration of justice, in particular ensuring that the process of finding truth and justice is not disturbed (cf. BVerfGE 103, 44 <64>). In this context, the interests opposing broadcast recordings have special weight in cases where they fit the statutory requirements for completely excluding the public from the courtroom on the basis of typifying person-related grounds set out in procedural law (cf., e.g., § 48, § 109(1) fourth sentence of the Youth Courts Act, § 171a, § 172 no. 1a, no. 4 of the Courts Constitution Act).

(a) The protected interests [that possibly oppose the interest in broadcasting] include the general right of personality of persons involved in the proceedings (cf. BVerfGE 103, 44 <68>).

(aa) The right of the media to obtain and disseminate footage of persons present in the courtroom during a hearing must be measured against the affected persons’ right to their own image, as a specific manifestation of the right of personality. This right guarantees that affected individuals have the authority to influence and decide not only whether photographs and recordings of their person may be used by others, but also whether such photographs and recordings may be produced in the first place (cf. BVerfGE 101, 361 <381>).

The constitutional standards applicable to the dissemination of one’s image by the mass media without one’s consent (cf. in this regard BVerfGE 35, 202 <224 et seq .>; 101, 361 <387 et seq .>) must also be observed when deciding whether to allow the depiction of specific persons, for the purposes of dissemination in the mass media, in connection with a criminal trial hearing. Since court hearings that give rise to a particular interest of the public in obtaining information are events of significance to contemporary society, the protection of the general right of personality of persons involved in such proceedings does not require an absolute ban on filming in the courtroom (cf. BVerfGE 87, 334 <340>; 91, 125 <137 and 138>).

However, when determining the scope of protection of the right to one’s own image, it must be taken into account that at least some of the persons involved in the proceedings typically find themselves in an unfamiliar and stressful situation. In many cases, their presence in the courtroom is mandatory – for instance as a witness or the accused in criminal proceedings. Regarding the accused, consideration must be given in particular to a possible pillory effect and to possible impairments of their right to be presumed innocent or of their interest in future social reintegration, as these rights and interests might be affected by media coverage identifying the accused (cf. BVerfGE 35, 202 <226 et seq .>; 103, 44 <68>). The risk of biased media reporting regarding the culpability of the accused must also be taken into consideration, not least in light of the powerful influence of TV broadcasting. With regard to witnesses, it must be taken into account that they are subjected to a high level of stress, for instance if they are victims of the crime for which the accused was indicted.

Persons who attract public attention in court proceedings […] in their capacity as organs serving the administration of justice (Organe der Rechtspflege ) are not afforded the same level of protection of their personality rights as private individuals involved in the proceedings (cf. BVerfGE 103, 44 <69>), or as members of the audience. Nevertheless, persons involved in the proceedings as judges, public prosecutors, lawyers or judicial staff are also entitled to a certain level of protection; their interest may outweigh the publication interest, for instance, in the event that publishing their images would result in significant harassment or threats to their safety due to attacks on their person by third parties […]. […]

(bb) […]

(b) The right of the persons involved in the proceedings to a fair trial (Art. 2(1) in conjunction with Art. 20(3) of the Basic Law) and the proper functioning of the justice system, in particular the unimpeded process of finding truth and justice in the case on trial, are less affected by audio and film recordings outside the hearing than by direct recordings of the hearing itself […]. However, adverse consequences cannot be ruled out entirely. If there are film and audio recordings of events accompanying the hearing, the knowledge that they may be disseminated might influence individuals involved in the proceedings in such a way that it adversely affects the course of the hearing and the objective of finding truth and justice. One of the main objectives of criminal trial hearings is to obtain, from all persons giving testimony, truthful and complete information of forensic value. This requires a setting that helps avoid inhibition and anxiety, in particular for persons not experienced in dealing with the media. […]

Likewise, audio and film recordings of the events accompanying the hearing may adversely affect the right of the accused to unfettered communication with their defence lawyer, as guaranteed under § 148(1) of the Code of Criminal Procedure. This may in turn impact their right to a fair trial (cf. BVerfGE 49, 24 <55>). […]

(3) The presiding judge’s discretionary decision on orders issued in exercise of the power to maintain order in court must satisfy the principle of proportionality and strike a balance between the conflicting interests. Restrictions imposed by the presiding judge on access to information relating [not to the actual court hearing itself but] to events accompanying the hearing must have regard, in particular, to the principle of necessity (cf., e.g., BVerfGE 50, 234 <241>; 91, 125 <137>).

A ban on audio and broadcast recordings is not necessary if the protection of conflicting interests can already be ensured by imposing restrictive conditions, requiring, in particular, that the footage obtained be rendered anonymous by suitable technical means if the depicted persons are entitled to special protection. If the risk that the depicted person could be identified by the general public can be ruled out by such restrictions, the risk that the person concerned could still be recognisable to their personal acquaintances can be tolerated, provided that the conflicting information interests of the public are sufficiently weighty and that the person concerned does not face severe disadvantages resulting specifically from being recognised by acquaintances. However, imposing such anonymisation requirements [on the media] also constitutes a significant restriction of the public’s access to information, and thus requires a specific justification based on the circumstances of the individual case.

Restricting the place, time, duration and type of recordings may be a suitable means where recordings could potentially harm the persons concerned by depicting them in a particularly detrimental or embarrassing situation; where the making or duration of the envisaged recordings adversely affect the course of the proceedings; or where persons involved in the proceedings wish to speak confidentially with their lawyer when the hearing is not in progress. Imposing such conditions may avoid the need for further restrictions such as a complete ban on audio and film recordings (cf. BVerfGE 91, 125 <138 and 139>). It is for the presiding judge to ensure an appropriate balance between the interest [of the public] in obtaining information and conflicting interests […]. […]

The risk of disturbance to the proper conduct of the hearing that arises, for instance, due to the limited space available in the courtroom, can be mitigated or avoided by opting for a so-called media pool solution [where only one camera team representing a media pool is admitted], rather than several individual camera teams (cf. BVerfGE 87, 334 <340>; 91, 125 <138>; […]). The requirement that all other broadcasters receive access to the material may be satisfied, for instance, by imposing an obligation to share the recordings with any interested press representative on condition that any resulting expenses be reimbursed.

bb) […]

c) As audio and film recordings immediately before or after a hearing and during recesses fall under the freedom of broadcasting, an order prohibiting or restricting such recordings requires that the presiding judge disclose the reasons for their decision in order to ensure an effective protection of substantive fundamental rights; this allows the persons concerned to ascertain that all significant circumstances have been taken into account in the balancing of interests.

3. The challenged Order of the Presiding Judge of 21 February 2007 restricting the time for audio and film recordings and for the taking of photographs does not meet these constitutional requirements.

a) To the extent that the order was aimed at protecting the accused, it is not sufficient to simply state in the reasons attached to the order that most of the accused did not have a criminal record and that the charges against them did not stand out from ordinary crime. The assessment of the public interest in court cases is not subject to the same standards as its classification under criminal law. Even a charge that is considered minor under criminal law may affect weighty information interests of the public; this may be the case, for instance, where the matter touches on possible deficits of the state system. The proceedings at hand concerned allegations of abuse of Bundeswehr recruits by the officers and non-commissioned officers responsible for their training, which led to widespread public discussion. As the circumstances clearly set the case apart from what is considered ordinary crime, the investigation of the incidents attracted considerable public interest, too.

The presiding judge could not simply rely on the generalised assumption that visual courtroom recordings outside the trial hearing would cause the accused to feel inhibited and anxious, and that this would make it more difficult for the court to try the case. Rather, it would have been incumbent upon the judge to establish, in a comprehensible manner, specific indications to support such concerns. It is not immediately obvious from the specifics of the case nor from the identity of the accused, who are all experienced Bundeswehr officers and non-commissioned officers, that such concerns were indeed justified.

b) […]

To the extent that the order was aimed at protecting the defence lawyers, the underlying balancing of interests does not sufficiently take into consideration that lawyers, acting as authorised representatives in court, perform their duties as organs serving the administration of justice. […]

c) The challenged order was also not justified by the interest in protecting lay judges (Schöffen ). […] In the absence of specific indications, it is not tenable to assume adverse effects on the functioning of the court. […] The legal order builds on the legitimate presumption that lay judges are, in principle, capable of meeting the expectations linked to their function, including in proceedings that attract public attention, even if the media disseminate footage of the proceedings.

d) […]

e) Even if there actually had been indications in the case at hand that broadcast recordings would adversely affect the right of personality or the impartiality of persons involved in the proceedings, it would have been necessary to clarify, prior to banning broadcast recordings, whether the expected adverse effects could have been averted by imposing specific restrictions, such as anonymisation requirements regarding footage depicting the persons concerned or requirements that filming of the entry of the judges be kept to a wide angle, without close-ups of individual faces. […]

III.

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IV.

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