Pressefreiheit - Strafrecht Göttingen

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.

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