Publicity principle

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The principle of public access to court proceedings is a procedural maxim that is related to the principle of immediacy and the principle of oral practice .

history

After criminal proceedings had already been held publicly in the forum or the marketplace in the Roman Empire and were also tried by the so-called Thingmen , i.e. all free men of the tribe, among the Indo-Europeans , it was later switched to keeping witness statements and interrogations of the accused behind closed doors To hold doors and offices. At the time of the French Revolution, however, there were again calls for the main hearing to be open to the public. In Europe, Cesare Beccaria and Anselm von Feuerbach were the best-known advocates of the principle of publicity.

Legal bases

The principle of the public is not a constitutional principle. But it is seen as a fundamental institution of the rule of law. The principle of public disclosure also follows from Article 6, Paragraph 1 of the ECHR and Article 14, Paragraph 1, Clause 2 of the UN Civil Covenant , both of which represent directly applicable law in Germany and rank above simple laws. Art. 6 para. 1 ECHR also requires that in certain court proceedings a public hearing must take place at some point between the beginning and legal force .

Content of the principle of public disclosure

A court hearing is only public if any audience, even if only in a very limited number, has the opportunity to enter. This includes information about the time and place of the hearing, regularly posted in the court. In addition, actual access to the negotiation room must be possible. The court does not have to choose a larger hall for the hearing if the audience is expected to be large, but may not deliberately choose narrow rooms to keep spectators away. Access can be limited or excluded at the discretion of the court due to security considerations (e.g. external appointment at a dangerous location), or to enable the procedure to be carried out undisturbed. With its judgment of October 1, 2014, the Federal Administrative Court made it clear that the press’s claim regarding the sending of transcripts of judgments in criminal proceedings also includes that the names of judges, lay judges, public prosecutors and defense counsel may not be blacked out.

Section 169 GVG

An explicit legal regulation of the principle of freedom can be found in § 169 GVG . Television, radio and film recordings for the purpose of public presentation or publication of their content are therefore not permitted in principle, but can be permitted under the conditions specified in Section 169 GVG.

Exclusion of the public

In special circumstances, the public is excluded from proceedings: In written proceedings, the public is regularly excluded for practical reasons, as no public inspection of files is made. For example, in civil law proceedings pursuant to Section 299 of the German Code of Civil Procedure, third parties may only be allowed to inspect the files without the consent of the parties if they can substantiate a legal interest. In the case of juvenile criminal proceedings ( § 48 JGG ), family and housing matters as well as things that could endanger public order (state security matters), morality or the protection of secrecy , the public must or can be excluded.

Legal consequences

If the public is wrongly excluded, this is an absolute reason for revision in criminal proceedings in accordance with § 338 No. 6 StPO , in civil proceedings according to § 547 No. 5 ZPO and in the administrative process acc. § 138 No. 5 VwGO.

literature

  • Holger Jäckel: The ZPO's right of proof. A practical handbook for judges and lawyers. Kohlhammer Verlag, Stuttgart 2009, ISBN 978-3-17-020793-6 , p. 62 ff.
  • Edgar J. Wettstein: The principle of public disclosure in criminal proceedings (= Zurich contributions to jurisprudence. NF 269, ZDB -ID 503851-0 ). Schulthess, Zurich 1966 (dissertation, Zurich).

Web links

Individual evidence

  1. BVerfGE 15, 303, 307
  2. BGH v. May 23, 1956 - 6 StR 14/56, NJW 1956, 1646
  3. ^ Robert Tubis: The public of the procedure according to Art. 6 I ECHR; NJW 2010, 415.
  4. Zimmermann in Munich Commentary on the ZPO, 4th edition 2013, § 169 GVG, Rn. 5.
  5. BVerfG, decision of March 26, 1987, Az. 2 BvR 589/79, Rn. 39, BVerfGE 74, 358 = NJW 1987, 2427 = MDR 1987, 815 = NStZ 1987, 421 = StV 1987, 325: "Also laws (...) are to be interpreted and applied in accordance with the international legal obligations of the Federal Republic of Germany, even if they were issued later than a valid international treaty "
  6. ^ Judgment of the IV. Section of the European Court of Human Rights (ECHR) of April 5, 2016, Az. 33060/10 , in the Blum v. Austria case, NJW 2017, 2455
  7. Karpenstein / Mayer, Convention for the Protection of Human Rights and Fundamental Freedoms , ECHR Commentary, 2nd edition 2015, para. 60 ff. On Art. 6 ECHR
  8. Jens Meyer-Ladewig / Martin Nettesheim / Stefan von Raumer: European Convention on Human Rights. Hand comment . 4th edition 2017, no. 170 ff. On Art. 6 ECHR
  9. BGH, judgment of 10 November 1953 - 5 StR 445/53, NJW 1954, 281.
  10. Diemer in Karlsruhe Commentary on StPO, 6th edition 2008, § 169 GVG, Rn. 8th.
  11. Diemer in Karlsruhe Commentary on StPO, 6th edition 2008, § 169 GVG, Rn. 9, 10.
  12. BVerwG, ruling v. October 1, 2014, Az. 6 C 35/13
  13. Christian Schrader : Now the judges have it in their hands