Freedom of the press vs. protection of criminal proceedings

The dispute over the constitutionality of Section 353d No. 3 StGB

Can the press quote from internal documents about ongoing investigations or even publish them?

The answer is: no. Moreover, under the current legal situation, such conduct would constitute a criminal offence under Section 353d No. 3 StGB.

Section 353d no. 3 StGB stipulates:

“Any person who publicly communicates the wording of an indictment or other official documents of criminal proceedings, fine proceedings or disciplinary proceedings […] before they have been discussed in open court or the proceedings have been concluded shall be liable to imprisonment of up to one year or a fine.”

After the German government recently presented the key issues paper on the reform of the German Criminal Code (The reform of the penal code: an overview) the question now arises as to whether the provision in Section 353d No. 3 of the German Criminal Code should not also be deleted from the German Criminal Code.

The provision sanctions the prohibited communication of information about court proceedings and was introduced to ensure the impartiality of parties to proceedings, namely lay judges and witnesses.

All documents relating to specific criminal proceedings must be kept under lock and key so that there is no possibility of obtaining knowledge of the contents of the file (e.g. via the media) before the trial begins. This is intended to ensure that the parties to the proceedings remain impartial and, above all, that the memories of witnesses are not distorted.

Indirectly, the standard is also intended to protect the accused by safeguarding the presumption of innocence in their favour and their right to privacy.

A special feature of the offence lies in its nature as a so-called abstract endangering offence. The mere publication of document content as such, i.e. the existence of a risk of prejudice to the impartiality of the parties to the proceedings, is sufficient for criminal liability – the existence of actual prejudice is not required.

The standard in Section 353d StGB has been criticised since it was passed, and the number of critical voices is currently increasing.

On the one hand, there are considerable doubts about the effectiveness of Section 353d StGB in terms of criminal policy – in particular because the offence can only be fulfilled if the relevant procedural documents are published verbatim.

On the other hand, a current, highly publicised case raises the question of whether the provision is constitutional.

The compatibility of the norm with the fundamental right to freedom of the press under Article 5(1) of the German Basic Law appears problematic.

In August, the internet platform “FragDenStaat” published several orders issued by the Munich District Court in the context of preliminary proceedings against members of the “Last Generation” as well as a further order issued by the Karlsruhe Regional Court in the proceedings against an editor of Radio Dreyeckland.

The editor-in-chief and head of the “FragDenStaat” project, Arne Semsrott, made court documents available online anonymously.

The Berlin public prosecutor’s office is currently investigating him for this behaviour.

In a statement published by the public prosecutor, Semsrott admits the accusations against him and applies for charges to be brought against him. Semsrott is thus pursuing a strategy that may initially seem incomprehensible in view of the fact that he himself is a defendant in the proceedings.

However, the accused appears to be pursuing an overriding objective with his actions: as part of his statement, he applied for the criminal proceedings to be suspended in accordance with Article 100 (1) of the German Basic Law in order to clarify the constitutionality of Section 353d of the German Criminal Code.

Pursuant to Article 100 (1) of the Basic Law, courts can suspend proceedings if they are confronted with a provision that they consider to be unconstitutional when making their decision and, against this background, first obtain a decision from the Federal Constitutional Court on the relevant provision.

In 1985, the Federal Constitutional Court still considered the provision of Section 353d No. 3 StGB to be constitutional (BVerfG, decision of 3 December 1985 – 1 BvL 15/84, NJW 1986, 1239).

However, there have been some changes in case law in the last almost thirty years. This year, for example, the Federal Court of Justice emphasised the great importance of Article 5(1) of the Basic Law in connection with Section 353d of the German Criminal Code (BGH, judgement of 16 May 2023 – VI ZR 116/22).

In addition, the ECtHR emphasised that Art. 10 para. 1 of the European Convention on Human Rights (ECHR) also includes the right to report freely on criminal proceedings and the functioning of criminal justice and police authorities (ECtHR NJW 2013, 3709 (3711)).

Whether Section 353d No. 3 StGB conflicts with the guarantee of this right seems at least possible.

It is therefore quite possible that the Federal Constitutional Court will change the previously prevailing opinion regarding the constitutionality of Section 353d StGB – if the Federal Ministry of Justice under Marco Buschmann does not beat it to it and include the standard in the key issues paper with the offences to be deleted.