Constitutional complaint against ban on publication of bills of indictment prior to trial unsuccessful

Press Release No. 61/2014 of 16 July 2014

Order of 27 June 2014
2 BvR 429/12

The criminal offence defined in § 353d no. 3 of the Criminal Code (Strafgesetzbuch – StGB), which prohibits, among other things, the verbatim publication of a bill of indictment before it has been addressed at a public hearing, is consistent with the Basic Law (Grundgesetz – GG). This was decided by the Third Chamber of the Second Senate of the Federal Constitutional Court, following a 1985 decision of the First Senate. In line with constitutional law, this criminal offence is not only intended to protect the rights of the accused, but also to prevent persons involved in the proceedings – especially lay judges and witnesses – from losing their impartiality. Owing to inadequate prospects of success, the Chamber thus did not admit for decision a constitutional complaint by a complainant who had placed a bill of indictment concerning himself on his website and was prosecuted.

Facts of the Case:

On 17 April 2009, the complainant was charged with professional fraud in conjunction with professional forging of documents. By decision of 1 December 2009, the Regional Court (Landgericht) admitted some of the charges and instituted main proceedings; with regard to the other issues, it refused to institute main proceedings on factual grounds. In early December 2009, the complainant made that decision as well as parts of the bill of indictment available for download on his website. By judgment of 8 April 2010, the Local Court (Amtsgericht) ordered the complainant to pay a fine amounting to 10 daily rates of EUR 16 for illegal disclosure of court proceedings (§ 353d no. 3 StGB). The complainant’s appeals on legal and factual grounds were unsuccessful.

Key Considerations of the Chamber:

1. The complainant’s conviction is not contrary to the prohibition of analogy set out in Art. 103 sec. 2 GG. In particular, it is not contrary to the decision of the Federal Constitutional Court of 3 December 1985 (BVerfGE 71, 206) insofar as that decision has attained the force of law. The crucial operative part of the decision, according to which § 353d no. 3 StGB “is compatible with the Basic Law insofar as the verbatim public disclosure of the bill of indictment or of other official documents punishable under that provision took place without or against the will of the party affected by the reporting”, does not contain the express finding that the provision is incompatible with the Constitution in all other cases.

2. Nor does § 353d no. 3 StGB conflict with the freedom of expression (Art. 5 sec. 1 sentence 1 GG) or with the general right of personality (Art. 2 sec. 1 in conjunction with Art. 1 sec.1 GG) in cases in which publication took place with the approval of the person affected.

a) aa) It is generally the legislature’s responsibility to decide the means employed to achieve the purpose of a provision; hence the division of responsibilities between the legislative and the judiciary requires restraint in a constitutional review. In the present case, the suitability of § 353d no. 3 StGB for its purpose could only be denied if the provision were absolutely unfit to protect the legal interests it serves to protect.

bb) It is uncontested that the protective functions of § 353d no. 3 StGB are twofold. First and foremost, the provision is meant to ensure that the premature publication of official documents does not impair the impartiality of persons involved in proceedings, especially lay judges and witnesses. Hence, the provision ensures that the true facts of the case become the basis of a court decision and it safeguards the unconditional neutrality of the court. Additional legal interests meriting protection are the rights of personality of the persons affected and – with regard to the accused – upholding the presumption of innocence. Owing to this dual protective function, the provision does not become unfit for its purpose simply because affected persons divest themselves of their protection through premature publication. Even when considered in isolation, the significance and scope of both the substantive law principle of fault and the neutrality of the court for criminal proceedings that are governed by the rule of law justify the person incurring criminal liability. Moreover, the protection of personality rights of other persons affected, for example other accused persons or private claimants (Nebenkläger), is also concerned.

cc) Despite the existence of possibilities of circumvention, § 353d no. 3 StGB is not completely unsuited for achieving these objectives. This applies especially where the legislature only declares verbatim publication punishable, while exempting reiterations in indirect speech. The circumvention possibilities thus arising are based on the freedom of expression, which requires that only absolutely necessary restrictions be imposed. A quote has a particular power of conviction and evidential significance when compared with an apparent statement of views. The verbatim disclosure of parts of the files conveys – and generally intends to convey – the impression of official authenticity. As a rule, therefore, it will have a stronger effect than a mere report by a third party on the contents of official files. This difference is vital in order to protect the impartiality of those involved in the proceedings.

b) The weighing of proportionality considerations in the narrower sense of the term also indicates that § 353d no. 3 StGB is consistent with constitutional law even if publication took place with the consent of a person affected. In particular, it is important to take into account that the provision of criminal law does not extend to elements of personal opinion, but solely to statements of fact. In addition, the ban is limited in time until the matter is addressed at the hearing; during this time forms of indirect reiteration remain permitted. Finally, it has to be taken into account that § 353d no. 3 StGB applies to everyone involved in the criminal proceedings, including the public prosecutor’s office and any private claimants. A unilateral right of publication for the accused would oust the establishment of the truth as the pivotal element of criminal proceedings in favour of an out-of-court debate.

c) There are also no apparent violations of the freedom of expression or of general personality rights in the decisions of the criminal courts that were challenged by the constitutional complaint, including concerning the case at hand.