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01.11.2016

DE: Public interest justifies impairments of a trial by photographers

by Ingo Beckendorf
The press is allowed to take photos of judges who take part in a criminal case in more then three hearings. As well, the defendants can be photographed, even if they show their discomfort to the press members. However, the presiding judge can order an anonymisation by the press as far as some of the defendants are concerned. That was decided by the German Federal Constitutional Court (Bundesverfassungsgericht) on 9 September 2016 (case number: 1 BvR 2022/16).

The reason for the decision is a criminal case at the Higher Regional Court (Oberlandesgericht) in Munich. Ten persons have been indicted due to suspicion of membership in a terrorist organisation (Turkish-communistic party/Marxists-Leninists). The hearings of the trial started on 17 June 2016 und shall last until 9 January 2017, 34 hearings are planned altogether. The presiding judge ruled on the making of tone-, film- and picture-recordings during the trial. On 28 July 2016, the judge prohibited the photographing of persons taking part in the trial, as far as they show discomfort in being photographed. In addition, he restricted the photographing of the involved judges to three certain hearings. Finally, he ordered an anonymisation with regard to three defendants (by pixilation).
The participating media-corporations who reported about the trial did not want to accept the judge’s restrictions. They claimed a violation of their press freedom according to article 5 para. 1 of the German Constitution (Grundgesetz) and tried to reach the suspension of the order of 28 July 2016 by an interim injunction to take pictures of the presiding judges in more than three hearings and to take pictures of the defendants, even if they show their discomfort, and to publish those pictures without prior anonymisation. An interim injunction can only be issued, if it does not anticipate the results of the necessarily following main proceedings.

The Constitutional Court found a violation of press freedom, as far as the presiding judge had put the decision on photographing in the hands of the involved defendants. The press needs to be allowed to take pictures of the defendants even if they show their discomfort in being photographed. According to the Constitutional Court, the public’s interest in information outweighs the defendants’ right to privacy due to the criminal charges and in view of the current political issues in Turkey. The privacy rights of the defendants would already be sufficiently protected by the anonymisation order, which – according to the Constitution Court – does not violate the rights to the freedom of the press. The anonymisation order eliminates the danger of an identification of the defendants. If the Court would issue the interim injunction, allowing the press to publish unpixelated pictures of the defendants, the possible violation of the personality rights of the defendants could not be reversed in case of a different decision in the main proceedings.

In addition, the Constitutional Court said, the public interest does not only refer to the defendants and their actions, but also to the judges who are involved in the trial. The simple fact that the presence of press and broadcast might be cumbersome to the judges and lead to delays in the trial was not a valid argument for restrictions of the freedom of the press and broadcast.

Ingo Beckendorf is a Scientific Assistant at the Institute of European Media Law (EMR) in Saarbrücken/Brüssel.

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The decision is available in German language here.





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