Publicity principle

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The publicity principle (also the publicity principle ) describes the basic decision of a community to generally disclose the documents of its administration to all persons ( administrative transparency and freedom of information ), as well as access to meetings of the public, i. H. everyone to grant.

administration

Freedom of information

Many countries know the public administration principle.

If information is to be kept as official secrecy , an exception must be expressly ordered. If no such exception applies, everyone has the right to inspect the files of the administration without having to prove a particular interest. The opposite of this is the principle of confidentiality, according to which administrative files are only accessible in certain cases and under certain conditions.

Municipal representative bodies

Local representative bodies such as local councils and district assemblies are also subject to the principle of publicity in Germany. This is derived from the principle of democracy in Article 20 (2) of the Basic Law and, through Article 28 (1) and (2) of the Basic Law, also has an effect on local self-government . In addition to free access to meetings of the representative body, this principle of public access also includes the publication of agendas and minutes. The public can be excluded for the protection of public interests or personal rights or because of disruptive actions. In addition to transparency and the possibility to evaluate the work of the representatives, it also grants the right of the representatives to present their arguments to a public.

Colleges

For functional self-administration , no principle of publicity is directly derived from Art. 20 and Art. 28 GG. These self-administrations, which are often organized in corporations under public law , do not order membership based on territorial allocation, but on the basis of concern. Nonetheless, a principle of publicity sometimes applies to the representative bodies in functional self-administration. In this respect, the BVerfG spoke of a “general public principle of democracy”.

Universities are an example of this. As part of the indirect state administration in their internal organization, these must comply with the principle of democracy from Article 20 paragraph 1 GG and Article 20 paragraph 2 GG. With the aim of enabling lawful and appropriate work and avoiding misinterpretation of the will-making process and decision-making, the principle of public meetings serves the public interest in democratic legitimacy and membership support and control. Within the universities, admission to meetings is also intended to promote the ties of members and relatives to the university as well as their interest in self-administration. They can also obtain information that they can use as a basis for exercising their right to vote.

Up until the federalism reform in 2006, Section 40 (1) of the Framework Act for Universities standardized a principle of public disclosure for the body that enacted its basic order , for example for the Senate . Today, most of the German federal states regulate a principle of publicity for the representative bodies at universities, although some of these are only public for those concerned (university or faculty public ). Other laws, such as the Thuringian Higher Education Act, leave it open to the giver of the statutes, which, however, mostly provides the university and faculty public for the representative bodies. Only the State University Act of Baden-Württemberg only provides for the public in exceptional cases. Insofar as state university laws provide for the principle of public disclosure, this can be excluded in personnel or examination matters or in the event of disruptions.

Judiciary

The principle of public disclosure is a principle of procedural law . It is prescribed by Art. 6 Para. 1 ECHR for certain types of procedure. In Germany, court proceedings are generally public, unless the public is expressly excluded; this is then to be expressly noted in the minutes of the negotiation in the criminal procedure law according to § 272 No. 5 StPO and in civil proceedings according to § 160 para. 1 No. 5 ZPO .

This enables uninvolved persons to learn about the content and course of the main hearing, in particular how the criminal justice system judges criminal offenses. In this way, legal awareness can be strengthened. The publicity principle was introduced together with the oral principle during the French Revolution for the purpose of controlling the judiciary. However, the principle only applies to main negotiations with adults. He can be waived for reasons such as the protection of the accused or the order of the court, in which case the hearing will be conducted in camera. This is at the discretion of the court. In juvenile criminal law , the main trial for the protection of juveniles is generally not open to the public ( Section 48 (1 ) JGG ).

politics

The meetings of democratically elected state institutions are generally public in Germany; this applies to the federal parliament from Article 42.1 sentence 1 of the Basic Law and the Bundesrat from Article 52.3 sentence 3 of the Basic Law as well as for the state parliaments, which is reflected in the respective State law results. Parliamentary committees or the council of elders can also meet in public.

literature

  • Klaus Krebs: The municipal public principle , Boorberg, Stuttgart 2016, ISBN 978-3-415-05633-6 .
  • Tobias Pielow: Public Criminal Proceedings - Public Penalties , Mohr Siebeck, Tübingen 2018, ISBN 978-3-16-155958-7 .
  • Arno Scherzberg : The public administration , Nomos, Baden-Baden 2000. ISBN 3-7890-6500-5 .
  • Stefan Schnöckel: The public of negotiations in representative bodies: a matter of course or a principle that is dubious in terms of legal policy? . In: The Public Administration , 16/2007, pp. 676–683.

Web links

Individual evidence

  1. ↑ See Art. 29 ff. Law of 19 May 1999 on informing the population (Information Act, LGBl. 1999 No. 159 LR 172.015).
  2. ↑ Klaus Krebs: The municipal public principle , Boorberg, Stuttgart 2016, ISBN 978-3-415-05633-6 .
  3. ↑ Sebastian Raphael Bunse and Lukas C. Gundling: On the principle of publicity at meetings of representative bodies of the universities . In: Journal for State Constitutional Law and State Administrative Law (ZLVR), 1/2020, pp. 4–6 ( digitized version ).
  4. ^ Alfred Katz : Public versus non-public of municipal council meetings . In: New Journal for Administrative Law (NVWZ) 2020, pp. 1076 ff.
  5. ^ A b c Sebastian Raphael Bunse and Lukas C. Gundling: On the principle of publicity at meetings of representative bodies of the universities . In: Journal for State Constitutional Law and State Administrative Law (ZLVR), 1/2020, pp. 1–16 ( digitized version ).
  6. ↑ BVerfGE 70, BVERFGE year 70 page 324 [BVERFGE year 70 page 358] = NJW 1986, NJW year 1986 page 907
  7. ^ Achelpöhler, Wilhelm: Principle of the public . In: from Coelln / Schemmer. (Ed.): BeckOK Hochschulrecht Nordrhein-Westfalen . 14th Ed. from 1.12.2019, 14th edition. Marg. 9. Verlag CH Beck - Beck'sche Online Comments, December 1, 2019.
  8. ↑ cf. VGH Mannheim, judgment of 04.08.2010 - 9 S 2315/09 = NJOZ 2010, 2435; VGH Mannheim , NVwZ-RR 1992, NVWZ-RR year 1992 page 373 = VBlBW 1992, VBLBW year 1992 page 375 for local self-government
  9. ↑ VG Münster, judgment of November 7th, 2008 - 1 K 1277/08 = BeckRS 2008, BECKRS year 40672 = NWVBl. 2009, NWVBL year 2009 page 163 f.
  10. ↑ Carsten Lund and Cornelia Jäger: From tuition fee statutes and university councils - to the public of Senate meetings . In: Nordrhein-Westfälische Verwaltungsblätter (NWVBl) 2010, pp. 301–307.
  11. ↑ ECHR , judgment of April 5, 2016, Az. 33060/10, in the Blum v. Austria case, full text .