Publicity in Criminal Proceedings

In 2013, the days-long dispute over the allocation of seats at the beginning of the NSU proceedings before the Munich Higher Regional Court (OLG) again moved one of the central principles of criminal proceedings to the centre of public perception. It became quite clear that with a worldwide interest in German criminal proceedings, not only some courts but also the legal framework do not always live up to the expectations of the public.

Publicity in Criminal Proceedings

1. Public Criminal Hearings

The principle of the public nature of the main trial laid down in § 169 GVG (only it must be public; the preliminary proceedings generally take place in secret) is not a procedural principle of constitutional rank. It is nevertheless of great importance. If the principle of publicity is violated, a judgment may be overturned in a revision solely because of this formal error. A judgement that has not been publicly negotiated is regarded as legally flawed – irrespective of whether the violation was actually the cause of the result. The background is the idea of strengthening confidence in the courts through public scrutiny and giving citizens the opportunity to convince themselves of the legality of the judicial process. Accordingly, it is forbidden for the judiciary to take measures that are likely to deter interested listeners, such as their registration by police officers. Last but not least, the emergence of secret justice, typical of totalitarian states and dictatorships, will be prevented.

At the same time, however, criminal proceedings are associated with particularly intensive encroachments on the rights of the accused – not least on his privacy. In some cases the public can therefore be restricted – in some cases this is even the legal rule. For example, criminal proceedings against juveniles are always non-public pursuant to § 48 JGG; the protection of the minor’s privacy takes precedence over the public’s interest in information. According to § 171b GVG, the same applies if during the trial “circumstances from the personal sphere of a party to the trial, witnesses or persons injured by an unlawful act come up whose public discussion would violate interests worthy of protection”. The tasks of criminal defence lawyers also include the protection of the personal rights of their clients in the event of media attention.

2. Limits of the Public Sphere

As these provisions show, the principle of public negotiation does not apply without limitations. In addition to legal aspects, purely factual aspects lead from the outset to a restriction of the public sphere. For example, not every interested party is entitled to be admitted to the hearing room. If the premises are limited, only a limited number of listeners can find place. At the same time, § 169 S. 2 GVG prohibits the production of “sound and television broadcasting recordings”. The public nature of the negotiations therefore does not include indirect participation by way of television transmission. These circumstances lead to the fact that in the history of the Federal Republic of Germany some major trials have already been conducted outside the courtroom. For example, one of the Frankfurt Auschwitz trials was relocated to a room of the Frankfurt City Hall in order to accommodate all those involved in the trial and to do justice to the worldwide public interest. An expansion of the public sphere, which would make the accused a showpiece, would not be compatible with the general right of personality of the accused.

3. Journalists in Criminal Trials

Journalists in particular are highly dependent on participating personally in the proceedings on which they wish to report. In its decision on the reallocation of seats in the NSU trial, the Federal Constitutional Court expressly stated that the solution favoured by the Higher Regional Court of Munich of allocating the 50 seats reserved for press representatives according to the priority principle was in itself lawful. Then, however, it must also be ensured that everyone has the same chances. In any case, the Constitutional Court regarded this principle as so endangered that it considered a new allocation of seats to be advisable. If it had remained with the initial situation, Turkish-speaking media would not have been given a place, they would have been denied the “possibility of their own reporting drawn from the epitome of the main hearing”. That would have been not least therefore of special importance, as straight Turkish medium representatives had a special interest in a completely independent reporting about this process, since numerous victims of the accused acts of Turkish origin are and in the Turkish population just like in Turkey a correspondingly large need for information exists.

The partially proposed possibility of transferring the proceedings before the Munich Higher Regional Court to another area within the court is very problematic from a legal point of view. According to the wording of § 169 S. 2 GVG, it is not prohibited. The transfer to another room of the court can be practised, e.g. in cases in which the accused is removed from the courtroom to protect witnesses or co-defendants. § 247 StPO only stipulates that, in the event of removal from the courtroom after his return, the accused must be informed of everything that took place in his absence. In the opinion of the Federal Court of Justice, however, such information can also be provided by simultaneous video transmission. However, there is no obligation to do so or even a claim to it.

The Higher Regional Court (OLG) of Munich blocked this proposal because the defence should be offered as few starting points as possible to justify an appeal. A rush decision by the Federal Constitutional Court, as requested by some joint plaintiffs, remained unsuccessful – however, less for substantive than for formal reasons. The reason why the Constitutional Court did not have to deal with the actual question of the legality of a video transmission to another room was that the joint plaintiffs as such were not entitled to bring about a decision on this question. Unlike the interested public, they do not have to fear that they will not be given a place. Because they are themselves parties to the proceedings with their own attendance rights.