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“NSU trial” - Application of a Turkish newspaper for a preliminary injunction successful in part, further applications unsuccessful
Press Release No. 34/2013 of 12 April 2013
Order of 12 April 2013
1 BvR 990/13
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.
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.