CASE OF AXEL SPRINGER SE AND RTL TELEVISION GMBH v. GERMANY
No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
5. The first applicant company, Axel Springer SE, is a publishing house operated in the legal form of a Societas Europea registered in Berlin. The second applicant company, RTL Television GmbH, is a broadcasting company set up as a private limited company registered in Cologne. 6. On 14 June 2010 the defendant, S., then aged 28, was arrested. The public prosecutor’s office charged him with killing his parents, dismembering their bodies, burning some of the parts, flushing others down the toilet and disposing of the rest by putting them in barrels. S. confessed to the police. Several German newspapers reported on the case. Some published pictures of S., which mostly showed him at a much younger age. 7. The public prosecutor’s office obtained a psychiatric expert opinion in October 2010. The expert concluded that S. was suffering from a schizoid personality disorder at the time when he had committed the offence. 8. The trial against S. began on 11 January 2011 at the Potsdam Regional Court. Photographers working for the applicant companies attended the hearings to take still photographs and make videorecordings of the defendant. 9. Prior to the start of the hearing, the presiding judge informed the photojournalists orally that the defendant’s face would have to be made unidentifiable “in the usual manner” before any images of him were published. 10. According to the applicant companies, the presiding judge had indicated at the beginning of the hearing on 11 January 2011 that anyone who failed to comply with this order no longer needed to show himself at the Regional Court of Potsdam and apply for permission to take photos of future proceedings. The applicant companies submitted a copy of an email of a journalist who attended the hearing confirming the alleged statement of the presiding judge. 11. The Government contested the applicant companies’ assertions that the presiding judge had threatened not only to bar journalists from taking photographs during the proceedings against the defendant, but also from future proceedings before the Potsdam Regional Court. The Government submitted that according to the presiding judge no such statement had been made. 12. S. repeated his confession on the first day of the hearing. 13. By a letter of 12 January 2011 the second applicant company asked the President of the Regional Court to change the presiding judge’s oral order. It pointed out, inter alia, that several unpixelated pictures of S. had been published in different newspapers before. By a letter of the same date the president replied that he had forwarded the letter to the presiding judge for lack of competence. 14. On 17 January 2011 the presiding judge supplemented his order and provided his reasons in writing. The only media representatives who were permitted to take photographs and make video-recordings of S. were those who had previously registered with the court and given an assurance that prior to the publication or forwarding of the material, the face of S. would be disguised by a technical process, for example by pixelisation, so that it would only be possible to use the images in such a form. Journalists were barred from further reporting on the case if they failed to comply with the order. 15. The presiding judge stated in his reasons that he had to balance the public interest in being informed and the personality rights of S. He acknowledged that the crime at issue was very different from “usual crimes” and that permitting only pictures that disguised S. impaired the public’s ability to be informed. However, he held that the order was justified in view of the need to protect the personality rights of S. He reasoned that it was unlikely that the case had caused a sensation throughout Germany. No nationwide television channel besides the second applicant had shown any interest in reporting on it. He stressed the importance of the presumption of innocence, finding that reporting on S. in a way which identified him could have a “pillory effect”. Consequently, according to the presiding judge the personality rights of S., who had never been in the public eye or sought to contact the media and who had expressly requested that his identity be concealed, outweighed the public interest in being informed. Furthermore, the order had already proved to be necessary as there had been individual violations of the judge’s instructions following the first day of the hearing. 16. On 18 January 2011 the presiding judge sent the supplemented written order to a number of journalists, including some who worked for the applicant companies. 17. On 31 January 2011 the applicant companies filed an objection (Gegenvorstellung), requesting the suspension of the judicial order banning the publication of images enabling identification “during the proceedings against (...) S.” (”für die Dauer des Prozesses gegen (...) S.”). The applicant companies stressed the fact that S. had confessed to the crime on the first day of the hearing. 18. On 4 February 2011 the presiding judge upheld the order. He held that the implications of the confession and its credibility could only be assessed at the end of the hearing. 19. Further hearings took place on 20 and 27 January 2011 and on 8 February 2011. On 10 February 2011 the Regional Court delivered its verdict, sentencing the defendant to prison on two counts of murder. 20. On 1 February 2012 the Federal Constitutional Court declined to consider a constitutional complaint by the applicant companies, without providing reasons (no. 1 BvR 381/11).