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[ccje2005/docs/CCJE(2005)15e] English only
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
(CCJE)
QUESTIONNAIRE ON THEME
“JUSTICE AND SOCIETY”
Reply submitted by
the delegation of Germany
A. THE EDUCATIONAL ROLE OF THE COURTS IN A DEMOCRACY.
9. Judicial decisions play a relevant role in democratic societies. Judicial decisions have an added value: if, on one hand, they settle disputes concerning individuals, on the other hand they play an "educational role" as they provide citizens with relevant information as to the application of the law in practice.
10. Courts are, and are accepted by the public at large as being, the proper forum for the ascertainment of legal rights and obligations and the settlement of disputes relative thereto; the public at large have respect for and confidence in the courts' capacity to fulfil that function.
11. More and more, however, countries have to face social attitudes, reflecting general tensions in modern democracies, expressing distrust in the courts, as well as the view that judges do not always reflect the will of the people.
12. In general, it is argued that although the courts exist to serve the people, the judge's duty is to apply the law in a fair and even-handed manner is little known. Adequate information about the functions of the judiciary and their mission, even when other state powers are involved, can effectively contribute toward an increased understanding of the courts as the cornerstone of democratic constitutional systems, as well as of the limits of their activities.
13. Furthermore, most citizens' knowledge of their court system is limited to their experiences as litigants, witnesses, or jurors. This implies, on one hand, that the role of the media is essential in broadcasting information to the public on the role and the activities of the courts (see section C.2 below); on the other hand, it is also crucial that the judiciary itself, by in some way widening and improving the scope of its "educational role" as described above, which is no longer limited to delivering decisions, fills the function of communicator and facilitator, bridging the gap between citizens' expectations and the courts' mission.
14. If courts so far have accepted to participate in educational programmes to which they might have been invited, it is perhaps high time to abandon such an old approach ("If we're asked we'll go, but we're not often asked") and to view courts as the principal promoters of "court literacy" for the general public.
15. For example, courts have been known to organise, often with the support of other social actors, educational initiatives that bring teachers, students, parents, lawyers, community leaders and the media into the courts to interact with judges and the justice system ("outreach programmes"). Such programmes usually incorporate the use of professionals with prepared resources and provide a network for teachers’ professional development.
16. The CCJE might be interested in learning about such experiences and may recommend the general support of the European judiciaries and the Council of Europe for some similar initiatives.
Questions
A.1.Please describe arrangements existing in your country aiming at informing justice users and/or the general public about the functioning of the judicial system. Please describe the specific information provided (nature of proceedings available; average length of proceedings in the various courts; costs and risks involved in case of wrongful use of legal channels; alternative means of settling disputes offered to parties; landmark decisions delivered by the courts) as well as the press resources used (printed citizen's guides, Internet facilities, information offices, etc.). Please also state which authorities provide such services, underlining the role of the courts themselves and/or of lawyers' associations (see paragraphs 12-15 of the CCJE's Opinion No. 6 (2004) on Fair Trial within a Reasonable Time and Judge’s Role in Trials taking into Account Alternative Means of Dispute Settlement). Please say whether a role is played by judges' professional associations and/or by the Judicial Service Commission/High Council for the Judiciary. Please say whether public interest organisations and universities have a role in the above.
There is a variety of arrangements aiming at informing justice users and the general public about the functioning of the judicial system. Internet facilities of Federal and Land (State) Ministers of Justice and of many courts play an important role in this context; in addition printed citizen's guides are issued by these and other institutions.
Thereby the general public is given practical information concerning the judicial system (for example about addresses and communication facilities of courts, often including maps showing the seat of the court; nature of proceedings available; advice how to initiate court proceedings and delivery of forms needed; average length of proceedings in the various courts; alternative means of settling disputes; costs and risks involved in case of wrongful use of legal channels; lists of interpreters and experts on certain subjects).
In addition legal texts are provided mainly by internet facilities of Ministers of Justice, courts and other institutions (statutes; courts' decisions; actual legal problems; information on certain legal issues, for example consumer protection questions, landlord and tenant law, heritage law, family law). Special information is also offered for persons with certain functions (for instance witnesses, lay judges). Internet facilities of courts may include – in addition to the above mentioned subjects – texts written by individual judges about certain legal issues and about the history of the court. Information on relevant statistical data is offered by Statistical Offices. An High Council for the judiciary does not exist in Germany.
Judges' associations offer websites informing the public mainly on actual legal issues. Public interest groups as consumer protection organisations of protection of tenants actively inform the public on judgments or relevant proceedings concerning their matters of interest. Some universities are offering various kinds of legal information on internet sites.
A.2.Please describe the systems envisaged to satisfy the information needs of policy makers, academics, public interest groups and private citizens.
The most common way of satisfying the information needs of policy makers, academics and public interest groups are - apart from the arrangements stated above A.1.- the press and printed weekly or monthly publications of specialised publishing houses.
A.3.Please describe specifically the educational role of judicial decisions in your country. Please describe how judicial decisions are made known to the general public and how accurate such information is. Please consider that what is relevant is information provided to the public and not to legal professionals. Please also consider that the role of the press will be dealt with in a subsequent section (C.2) of this questionnaire.
In general judicial decisions are made known to the public by the media. The quality of information on judicial decisions depends a lot on the professional skills of the publishing organ. This concerns both television and print media, smaller newspapers normally have no reporters with legal education or specific legal or judicial knowledge.
Many (especially higher) courts offer a summary by internet facilities immediately after a judgment has been pronounced. Sometimes this summary serves also as a statement to the press. Frequently also complete decisions are published on the court's website as soon as they are available (especially in the case of higher courts). This information issued by judges is certainly accurate. These facilities are being increasingly accepted. However, the term "educational role" is usually not used with respect to the courts in Germany except perhaps criminal courts. Instead the aspect of the judges' work as a service ("Dienstleistung") is increasingly being emphasized.
A.4 Please say whether school and university education programmes in your country (even outside law faculties) include a description of the judicial system and visits to courts. Please specify outside actors that are employed by educational institutions (e.g. in classroom appearances) to provide programmes (judges, court staff, academics, lawyers, non-governmental organisations). Please say whether courts have staff specifically in charge of liaising with educational agencies (P.R. offices or the like). Please describe educational methods (e.g., role playing, attending hearings, etc.)
The school system is within the responsibility of the "Laender" (states within the Federal Republic of Germany). Therefore a general statement is not possible. School education systems normally include information about the judicial system and on legal issues, partly on a voluntary basis. Lessons are given by experienced judges, public prosecutors, lawyers and/or specially trained ordinary teachers. Curricula are varying among the different Laender. Frequently courts are visited and role playing is used. On principle, courts do not have specialised staff for educational purposes. Teachers report that from the viewpoint of students the image of the judiciary is to a large degree influenced by the popular, but often unrealistic "court shows" in television.
University education programmes outside law faculties include information on the legal system and the judiciary if this is relevant to the individual studies (for example in case of business studies or social sciences). Students from other faculties may attend lectures at law faculties on a voluntary basis, however.
A.5.Please say whether courts in general, or some courts, have "outreach programmes" (see above) or at least regular programmes consisting in conducting surveys, holding focus groups, employing lawyers and academics for public forums, etc.
There is no information on outreach programmes or regular programmes consisting in conducting surveys, holding focus groups, employing lawyers and academics for public forums. If there is such a need or request, a member of the P.R. office of the court or the court administration or the professional organisations of judges or lawyers might be asked to provide such service.
In many cities there are associations with members from the different legal professions; they frequently offer lectures and discussions which often take place in court rooms, and – depending on the subject – the general public may be invited. In addition, some law professors are working as part-time judges; this furthers the exchange of information between courts and universities. Some initiatives are aiming at attracting citizens to court buildings (for example exhibitions with varying pictures, sometimes painted by a judge). The (historical) building of the Federal Administrative Court at Leipzig is - irrespective of public hearings - open to citizens every day and frequently guided tours are organised. Some courts invite citizens and journalists once a year and offer information about their work.
A.6. Please provide relevant information (e.g. summarising contents) as to theoretical studies existing in your country in the above mentioned field(s).
Joerg Berkemann, Freies Recht für freie Bürger, JurPC Web-Dok 188/1999 = www.jurpc.de/aufsatz/19990188.htm; same author: Freie Rechtsprechung für freie Buerger, www.jurpc.de/aufsatz/20020354.htm.; Walter Reinhard, Publikation von Gerichtsentscheidungen, Saarbruecken 1998 (doctoral thesis).
B. THE RELATIONS OF THE COURTS WITH THOSE INVOLVED IN COURT PROCEEDINGS
17. Individuals that do not belong to legal professions often come into direct contact with court proceedings when they are litigants, witnesses, experts, jurors, etc. Although the role of the media in shaping the public opinion is most relevant, the impressions of citizens as they participate in proceedings in the above roles is also a key element which establishes the image of justice in society.
18. If people, and especially litigants, involved in court proceedings feel that judges or court staff show, for example, racial or gender bias and/or that the trial in which they are involved suffers from unjustified delay, the perception of those citizens will easily spread.
19. It might be argued that there is little room for action by the court system itself in this field: it is the culture of a specific society at a certain historical stage that determines the role of the judiciary; beyond that, it is self-evident, and it is inherent in the concept of litigation, that there always will be dissatisfied litigants, who will view a certain decision (and consequently a certain judge, or a group of judges, or the court system as a whole) as being unfair or even biased.
20. Such objections may be well-founded; nonetheless the CCJE might consider that, for the sake of contributing to a better understanding of the role of the judiciary, action is necessary to ensure that, in so far as possible, the image of justice perceived by individuals involved in court proceedings is accurate and that it corresponds to the efforts of judges and court staff to win respect for and confidence in the courts' capacity to fulfil their functions.
21. In order to improve relations with those involved in court proceedings, several court systems or individual courts have developed programmes that have an impact on:
a) Training of judges, lawyers and court staff; training in deontology
b) Court infra-structures
c) Court procedure
d) Access to justice programmes
Questions
B.1.Please provide detailed information on programmes with the above mentioned objectives being carried out or planned in your court system.
Judges and public prosecutors are trained in courses offered by the German Judges Academy
aiming to ensure that in verbal and nonverbal communication courts appear to treat all litigants equally and impartially and to recognise situations and deal with them when a party might get the perception of a prejudiced attitude. Furthermore the Laender offer appropriate training programs. Lawyers associations offer specific training to lawyers.
Other programs aiming at removing causes of distrust in the courts that may lie in the infra-structural organisation of courts are not known. There are no references to a specific religious creed in a court room allowed. Safety measures are ordered by the presiding judge in his own responsibility.
Partly there are programs for witnesses. When they are summoned may be offered to consult a legal trainee if they need any assistance or explanation on what is up to come. In one state such a program has been cancelled since there has not been sufficient demand.
Internet facilities and printed citizen's guides offer information about the prerequisites of legal aid and
alternative means of dispute settlement (see above A.1).
B.2. Please describe who takes part in programmes.
See above B.1.
B.3. Please provide relevant information (e.g. summarising contents) as to theoretical studies existing in your country in the above mentioned field(s).
C. THE RELATIONS OF THE COURTS WITH THE PUBLIC
i. DIRECT RELATIONS OF THE COURTS WITH THE PUBLIC
22. Whereas relations with individual justice users have traditionally been dealt with by the courts, albeit in an unstructured way, courts have been reluctant to have direct relations with the members of the general public who are not involved in proceedings. Publicity of hearings in the sense enshrined in Art. 6 of the ECHR has been traditionally viewed as the sole contact between courts and the general public.
23. Such an attitude - which implied a passive role of courts in the public arena, in conformity with a traditional conception of the duties of impartiality and discretion, and made the mass media the sole interlocutors for courts - is rapidly changing (see para. 5 above).
24. The CCJE should investigate what form of direct contact with the public, i.e. not passing through journalistic mediation, is necessary and/or desirable.
25. The following examples could be considered:
- creation of P.R. offices in courts;
- distribution of printed materials, opening of Internet sites;
- organisation of a calendar of educational forums and/or regular meetings open to citizens, public interest organisations, policy makers, etc.
Questions
C.1. Please provide detailed information on programmes with the above mentioned objectives, being carried out or planned in your court system:
All federal courts and most Land courts by now provide a P.R. office or at least a P.R. spokesperson. The media usually are informed of upcoming trials of public interest. Many higher courts arrange a press conference at the beginning of each year; journalists are informed about important cases which will be decided in the current year. The recent press conference of the Federal Administrative Court was broadcasted by a television channel.
All federal courts and most state courts have opened internet sites and provide information to the public, most of them have links to further information or other authorities; in addition printed material on subjects of special interest is offered (see above A.1 for details).
A calendar of educational forums and/or regular meetings open to citizens is not known.
C.2. Please describe who takes part in such programmes
See above C.1.
C.3. Please provide relevant information (e.g. summarising contents) as to theoretical studies existing in your country in the above mentioned field(s).
ii. INDIRECT RELATIONS OF THE COURTS WITH THE PUBLIC - JUSTICE AND THE MEDIA
26. The 2nd European Conference of Judges to be held in Cracow (Poland) on 25 and 26 April 2005 on the theme of "Justice and the Media" will certainly provide relevant materials to guide the CCJE's preparation of what appears to be the "core" subject of the CCJE's 2005 Opinion, i.e. the indirect relations of the court system with the public, by way of journalistic mediation. Since the conference will be open to media representatives, parliamentarians, representatives of interested international organisations and experts on the questions under discussion, the CCJE will have the possibility to collect various points of view.
27. The CCJE's future Opinion should try to recommend actions, on the part of the States and specifically of the judiciaries, that would help, on the basis of the principles elaborated by the European Court of Human Rights, reconcile protection of freedom of expression and the right to information, on the one hand, and the right to a fair trial, protection of private life, reputation and human dignity and the presumption of innocence, on the other. Reference must be made mainly to Articles 6, 8 and 10 of the ECHR.
28. A first section of the "justice and the media" chapter of the future Opinion may consequently deal with the fundamental aspects of relations among the potentially conflicting values protected by the European Convention on Human Rights.
29. On such an essentially theoretical subject, the specialist's report will be a sufficient basis for the CCJE's work. Thus, it is not necessary to ask the delegations further questions.
30. A second section of the "justice and the media" chapter of the future Opinion might:
- compare national regulations and practices concerning access by journalists to judicial information and the public presentation of such information;
- describe relationships between judges and journalists in their day-to-day interactions;
- recommend "good practices" (to be implemented by judges and journalists, with possible involvement of professional organisations and/or media regulatory agencies and Judicial Service Commissions) that may strike a balance among conflicting values.
31. In order to make such work possible, a survey of the experiences of several systems is necessary, in order to pinpoint the relevant differences.
Questions
C.4. Please describe existing restrictions to the right to information in the field of judicial (civil, administrative, criminal) activity. Please describe the norms concerning secrecy of judicial investigations and/or other norms preventing dissemination of information on the development of a judicial case (e.g. secrecy of witness depositions, of filing a civil party suit within a criminal case, etc.). Please clarify at what stage in proceedings judicial information may be made public. Please also say if there is law or court practice preventing dissemination of names (or pictures) of persons involved in the case (parties, witnesses, public prosecutor, investigating judge, trial judge, etc.).
For a request to obtain information about details of judicial proceedings on principle the rules concerning access to judicial files apply.
In civil matters such an access is permitted only under narrow conditions. Sec. 299 para. 2 Civil Procedure Code requires a legal interest of the requesting party. If this prerequisite is fulfilled the presiding judge will decide according to his or her discretion; conflicting interests – including secrecy interests of the parties concerned – must be balanced. On principle the same rules apply when a public authority requests access to a court file.
A court decision that permitted access to divorce files for disciplinary proceedings was set aside by the Federal Constitutional Court (Bundesverfassungsgericht) because the constitutional right of privacy had not been sufficiently considered. There is no rule that at a certain stage of proceedings information may be made public. Similar principles apply in administrative matters.
The above stated restrictions shall protect legitimate interests of parties. They do not impede the publication of decisions without personal data. The Federal Administrative Court (Bundesverwaltungsgericht) has held, that all courts decisions must be made accessible to the public if there is or may be a public interest in the publication (Decision of February 26, 1997 - BVerwG 6 C 3.96 – Neue Juristische Wochenschrift 1997, 2694). The court derived this from the principles of the rule of law (including the right to have recourse to a court) and of democracy. It stated that court decisions put the law in concrete terms and that thereby the publication of decisions is of comparable practical importance to citizens as the publication of norms; that means that the chances of success of judicial remedies shall be foreseeable for citizens. In this context the media must be treated equally (principle of neutrality of the state). The publication shall be organised such that information is sent at the same time to different publishing houses.
Names or pictures of persons involved in the case (parties, witnesses) may not disseminated; exceptions may be made if the case and the name of a party (e.g. politician) is known by the public. There are no restrictions, however to the dissemination of names of judges.
C.5. Please provide any information you deem useful as to the implementation of:
C.5.1 The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108);
C.5.2. Recommendation Rec(2002)2 of the Committee of Ministers to member States on access to public documents;
C.5.3. Recommendation Rec(2003)13 on the provision of information through the media in relation to criminal proceedings, and Council of Europe instruments mentioned therein.
C.6. What are the procedures, if any, that guarantee access to information and access by journalists to court hearings and judicial files? Please make appropriate references to existing regulations on this matter. Do courts have spokespersons? Are they judges? Are judges allowed, by regulations and/or by deontological rules, to make statements to the press? If so, under what circumstances?
Court hearings basically always are open to the public and as such open to journalists as well. Exceptions are made in a few cases when the law declares the hearings not open to the public, such as divorce cases, parental guidance, cases of juvenile delinquency or sexual abuse of minors or circumstances when the protection of witnesses or administrative or business secrets requires the exclusion of the public. For access to court files see above C.4.
All federal courts and most state courts have spokespersons, almost always they are judges. On principle judges are allowed to make statements to the press, but they have to make sure they do not cause the impression of partiality or bias. Thus it is usually recommended that judges who are trialing a case should not make statements to the press and leave this to the spokesperson of the court. The Judges Academy offers special seminars for spokespersons.
C.7. Are television cameras allowed into the courtrooms? If so, what rules should govern the broadcasting of the recorded TV images in order to prevent the risk of manipulation?
Television cameras are only allowed in the court rooms until the hearing begins. Television and press may take pictures of the judges entering the court room. Then television and all other photographic or taping devices are excluded.
Only at the Federal Constitutional Court television cameras are allowed in the courtroom until the court has taken the names of the parties and counsels present and later on when the judgment is pronounced. .
If there is not sufficient space in the court room a "pool solution" will be applied. That means that a certain number of journalists and two TV camera teams, one from public broadcasters and one from private broadcasters, will be admitted to the court room, and they are obliged to share their documentary material with all the other TV stations and papers afterwards without charging them.
As there are on principle no cameras allowed during the public hearing there are no rules governing the broadcasting of the recorded TV images in order to prevent the risk of manipulation.
32. Another approach the CCJE should take in preparing the future Opinion should concern the role played by judicial authorities in the supervision of media activities in a State governed by the Rule of Law. In a third section of the "justice and the media" chapter of the Opinion, the CCJE might therefore examine potential judicial procedures enabling judges to supervise the media vis-à-vis case-law of the European Court of Human Rights and national legislation and practices.
33. Specifically, one should consider the implications of:
- protection of human dignity and freedom of expression;
- protection of fundamental rights of the person, vis-à-vis the journalist's responsibility in cases where incorrect information is provided;
- the role of protective and compensatory measures in cases involving protection of private life.
34. Although some of the above topics are theoretical, in order that the specialist's report forms a sufficient basis for the CCJE's work, an overview is needed as preparatory work when dealing with some other aspects of delegations’ experiences.
Questions
C.8. In the light of national law and case-law, please describe criminal and civil implications of libel, slander, and/or similar violations of a person's reputation. Please give information about penalties provided for by law or judicial practice, as for criminal law, with special reference to violations committed by journalists. Are there different thresholds for responsibility, e.g. for public figures and for private individuals? If so, is there, however, protection for private life of public figures, and under what circumstances?
Civil law and the press code provide an action for injunction (restraining order) and a counter declaration (corrective answer); for immaterial damage a compensation for pain and suffering may be granted.
The right to a counter declaration is important in practice (See Art. 11 of Land Press Codes, cf. <in English> http://www.iuscomp.org/gla/statutes/HmbPG.htm). The responsible press organ is obliged to publish a counter-version or reply by the person or party affected by an assertion of fact (not by opinions or value judgments) printed in the organ in question. No obligation to print a reply or counter-version exists if the reply or counter-version is of inappropriate volume. The reply or counter-version is regarded as being of appropriate volume if it does not exceed the volume of the text to which objection has been raised. The reply or counter-version must be confined to factual assertions and must contain nothing of a punishable nature. The reply must be printed in the same section of the paper in the next edition following receipt of the reply which has not yet been completed for publication; it must not appear in the form of a reader's letter. Publication is free of charge.
Penalties provided in the Penal Code (Strafgesetzbuch), mainly for libel, slander and similar violations of a person's reputation (sec. 185 – 200) also apply to journalists, their practical importance in this context however is limited, however. An important provision for the press is sec. 193. According to this provision statements which are made to safeguard legitimate interests may only under narrow conditions be punished. The term "legitimate interest" requires to strike a balance between the protection of private life and honour and the freedom of the press. The provision takes into account that the press for practical reasons (mainly time pressure) can not always thoroughly examine the truth of all published news. According to the case law sec. 193 on principle protects journalists as long as they do not act recklessly (for more details see Loeffler/Ricker, Handbuch des Presserechts, 4. Aufl. p. 420).
The freedom of the press is guaranteed in Article 5 of the Basic Law (Constitution). Art. 5 provides
(1) Everybody has the right freely to express and disseminate their opinions orally, in writing or visually and to obtain information from generally accessible sources without hindrance. Freedom of the press and freedom of reporting through broadcasting and film shall be guaranteed. There shall be no censorship.
(2) These rights are subject to limitations embodied in the provisions of general legislation, statutory provisions for the protection of young persons and the citizen's right to personal respect.
The Federal Constitutional Court has consistently found that this basic right is of fundamental significance for the freedom of society. According to the Federal Constitutional Court a free press, independent of the state and not subject to censorship, is one of the fundamental elements of the democratic state; in particular, a free, regular political press is indispensable for modern democracy.
According to the Federal Constitutional Court the constitutional guarantee of freedom of the press comprises entertaining publications including photos ("Caroline" Decisions of 15 December 1999, 1 BvR 653/96 and 26 April 2001, 1 BvR 758/97; cf. http://www.bverfg.de). There is a growing tendency in the media to do away with the distinction between information and entertainment and to disseminate information in the form of entertainment or mix it with entertainment ("infotainment"). Freedom of the press on principle also comprises the publication of pictures showing figures of contemporary society ("Personen der Zeitgeschichte") in a day-to-day life or private context. A federal statute (sec. 22 Kunsturhebergesetz - KUG) provides that pictures may only be published with the express approval the person represented. Pictures relating - from the viewpoint of the general public - to contemporary society ("Bildnisse aus dem Bereich der Zeitgeschichte") are excluded from that rule under sec. 23 (1) KUG. Under sec. 23 (2) KUG, however, that exception does not apply where the dissemination interferes with a legitimate interest of the person represented. The term "legitimate interest" requires a weighing of interests that also takes into account public interests. In this context it must be discussed in cases of public figures whether exclusively private matters shall merely be disseminated to satisfy curiosity or whether public interests are involved. According to the Federal Constitutional Court the protection by degrees under these rules ensures that they take account of both the need to protect the person being represented and the community's desire to be informed and the interest of the media which satisfy that desire. The decision of the European Court of Human Rights in the Caroline case of 24 June 2004 partly took a different view (Case of Hanover v. Germany, Appl. no. 59320/00). This decision stirred up a controversial public debate in Germany. Some authors criticize the balancing of the constitutional rights involved by the Court of Human Rights and argue that the weight of freedom of press is not sufficiently considered. Others state that this Court is not the highest appellate court and should not go too much in details of national law (cf. Papier, Frankfurter Allgemeine Zeitung, 9 December 2004, p. 5).
The degree of professional diligence and integrity requested from journalists is stated in the Land codes on the press. There the tasks of the press are described, the right to information of the press, the obligation to publish an impressum, the personal requirements of the editor in chief, the right to a corrective answer, requirements of a seizure and confiscation of a publication (to be ordered by a judge only), criminal liability and the right of the press to protect their sources (for details see in the internet <in English> http://www.iuscomp.org/gla/statutes/HmbPG.htm)
C.9. What degree of professional diligence and integrity is requested from journalists? What criteria govern the distinction between lawful and unlawful acts, if the information provided is false? Are there differences between facts reported as such or the uttering of mere opinions? Is the fact that information comes from a qualified source (e.g. a police officer) an element that permits disclosure in any case or at least exempts the journalist from verification? What precautions are requested in the broadcasting, e.g., news concerning provisional arrest of a citizen on the basis of criminal charges? Do police officers and/or prosecution offices and/or investigating judges hold press conferences? If so, what are the procedures?
According to sec. 6 of the Land Press Codes the press shall use all necessary thoroughness in checking the content, origin and truth of all news prior to its publication. If facts and/or sources are doubtful, on principle the person concerned should be asked unless a clarification seems unlikely. The duty of thoroughness represents a commitment to report as truthfully as possible. Every journalist has the duty to check the facts at his disposal for truth, content and origin, with a professional thoroughness to be expected of a conscientious reporter. Above and beyond this the press is obliged to keep printed matter free of any criminal content and not to distribute printed matter containing matter of a criminal nature.
If the information provided is false, this constitutes a violation of the right of personality/privacy (Persoenlichkeitsrecht). This is on principle only the case, however, with respect to factual information. The concept of false reports does not apply to the uttering of mere opinions. Defamatory value judgements ("Schmaehkritik") may only in severe cases violate a person's right of personality; in such a case a balancing of interests (freedom of expression and right of personality, both protected by the constitution) is necessary.
The fact that information comes from a qualified source (e.g. press statement of a public authority) normally exempts the journalist from further verification. Prosecution offices and investigating judges may hold press conferences.
C.10. Please provide information as to the amount of compensation afforded by courts to the victims of the above violations. Are there established criteria? Do such criteria depend on the social status of the person in question?
The amount of compensation afforded by (civil) courts depends on the circumstances. The main criteria are the damages done to the victim (severe violation of the right of personality/privacy), the frequency and the social effects. Substantial fault is necessary.
C.11. What is the legal regime of rectification of inaccurate information? Is spontaneous rectification such that criminal liability is excluded, or compensation diminished?
Rectification of inaccurate information is only possible in case of false facts (not of opinions); see for details the decision of the Federal Constitutional Court 14 January 1998, 1 BvR 1861/93, http://www.bverfg.de). The rectification (or revocation) must be necessary and appropriate to terminate a continuing impairment of reputation. There are no general rules with respect to spontaneous rectification.
C.12. Please describe protective measures available, respectively within criminal and civil procedures (e.g. seizure of publications, order not to distribute a book, etc.). Are there measures in your system that are or might be considered as a form of preventive censorship? Is there a role for the executive branch in supervising the media?
Publications may be seized by court orders, orders not to distribute a book or a newspaper article may be given. There are no measures in the system that might be considered as preventive censorship. This would collide with the constitutionally protected freedom of the press. When a criminal offence comes to the knowledge of the executive branch (security authorities) there will be an intervention when there are publications with forbidden or illegal contents (like racist right wing publications or the use of insignia of forbidden extremist or criminal organisations).
Besides there is a voluntary self control of the print media by the so called German Press Council (founded in 1956). This is a private non-profit organisation run by the associations of the print media. Its tasks is the defence of the freedom of the press, maintenance of the reputation of the press, elaboration of the self-given Press Code (canon of professional ethics), which contains the guidelines of press work and journalistic standards, treatment of complaints against press media and journalistic (mis)behaviour. For the last purpose the German Press Council has established a committee which evaluates the complaints and reprimands the newspaper in case the complaint is considered justified. The paper has to publish the fact of the reprimand. Thus in the end it is a system of self control of the print media. Every year between 400 and 500 persons, associations, institutions turn to the German Press Council seeking help and making complaints. Approximately two thirds of all complaints can be dealt with at an early stage without a formal decision by the complaints commission. In most cases there is a successful mediation between the parties concerned. The Council for example reprimanded a magazine for the use of non-authentic photos, the publication of a photomontage that upset the dignity of the person concerned and for a report on a suicide with the name of the person concerned and photo of the corpse. For details of the German Press Council see in the internet http://www.iuscomp.org/gla/statutes/HmbPG.htm (in English) and http://www.presserat.de or http://www.truemedia.de
C.13. In the event that a judge or a court is attacked by the press for reasons connected with the administration of justice, is there a role for the Judicial Service Commission and/or judicial associations? Is the judge bound by a duty of discretion even if a press campaign has been started attacking him or her?
There is no Judicial Service Commission in Germany. Depending on the circumstances it would be the task of the Minister of Justice and/or the court's president to defend the judge (or court) against unfair press attacks (for example if incorrect or misleading information is used or if there is an invasion of the judge's right of privacy; normally not in the case of criticism of a judge's or court's decision without unfair attacks). Judicial associations would also give press interviews and support to the judge or court attacked. The judge himself continues to be bound by a duty of discretion even if a press campaign has been started attacking him or her.
35. In order for the 2nd European Conference of Judges taking place in Cracow, Poland, on 25-26 April 2005 on the theme of "Justice and the Media", as well as for the preparation of the CCJE's Opinion, to be prepared in the most accurate way, national delegations are also kindly requested to append to their answers to the questionnaire:
- national legislation on access to information, journalists' access to court hearings and files, and the statutory foundation of journalists' liability;
- relevant national case-law on freedom of expression, protection of private life and human dignity;
- statements of "good practices" implemented at national level with a view to improving relations between justice and the media.
D. ACCESSIBILITY, SIMPLIFICATION AND CLARITY OF THE LANGUAGE USED BY THE COURTS IN PROCEEDINGS AND DECISIONS
36. The language of court decisions is not only a powerful tool available to the courts to fulfil their educational role (see paragraph 3 above), but it is obviously, and more directly, the "law in practice" for the specific litigants of the case. Accessibility, simplification and clarity of the language of courts is therefore necessary.
37. Substantial research already exists on the language used in court decisions, on a comparative law basis. However, it is essential that in its 2005 Opinion the CCJE expresses the judges' views on this topic.
38. The CCJE could, for example:
- recommend that legislation concerning reasoning of judgments provide that some form of reasoning should always exist, and that sufficient discretion is left to the judge in choosing whether to adopt an oral judgement (to be transcribed from a recording only upon request and in case of need) and/or a short written reasoned judgment (e.g. in the shape of the "attendu" style decision adopted in France) or an extensive written reasoned judgment, in all those cases in which reference to established precedents is not possible and/or the factual reasoning so requires;
-recommend that simplified forms of reasoning apply to orders, writs, decrees and other decisions that have a procedural value and do not concern the substantive rights of the parties;
- recommend that all decisions be concise and make use of plain language, avoiding Latin or other wordings that are difficult to understand if not necessary, and that the functions of legal institutes referred to be explained briefly, if necessary.
- recommend that all court decisions be readily accessible through Internet sites, and in print upon reimbursement of the cost of reproduction only.
Questions
D.1. Due to the fact that most of the problems involved are of a theoretical nature, delegations are only requested to describe the prevailing attitude in the national legal community about conciseness of judgements (e.g., in some countries, judges believe that very short judgments reinforce the authority of the judgement; in some other countries, judges feel obliged, or are obliged by the law, to adequately explain in writing, for example, the criteria and calculations adopted to award damages or to make orders related to costs).
With respect to civil cases sec. 313 of the Civil Procedure Code (Zivilprozessordnung – ZPO -) describes the content and the form of a judgement as follows: The judgement contains the name and address of the parties and their counsels, a designation of the court issuing the judgement, the names of the judges who took part in the decision, an indication of the date on which oral argument was closed. Immediately following the caption are the operative provisions of the judgement setting forth the actual relief granted. These provisions also address the award of costs and attorneys` fees and state whether the judgement shall be subject to immediate execution. These provisions are followed by the courts factual and legal substantiation for the judgement. The factual framework contains a brief recapitulation of the facts and allegations presented by the parties. The final part of the judgement is a brief exposition of the reasoning process and should give a summary of the main conclusions and arguments for the decision rendered (for administrative courts see sec. 117 Code of Administrative Court Procedure <"Verwaltungsgerichtsordnung">).
Normally German judges do not believe that very short judgments reinforce the authority of the judgment. As required by the above stated regulation, main conclusions and arguments are stated in practice. The term "brief exposition…" in sec. 313 ZPO is not always taken literally. There are different attitudes among judges. Local courts (first instance, "Amtsgerichte") often tend to write rather short judgments, while higher civil courts and Administrative, Social and Tax Courts of all instances frequently state the reasons on which judgments are based in a more extensive manner. The extent to which reasons are given also depends on the nature of the decision and the circumstances of the case. In the controversial discussion on the subject the argument is put forward that lengthy reasons may take too much of a judge's time and cause delay. Others regard thorough reasons as an indication for quality of a decision.
With respect to a statement of "good practices" with a view to improving relations between justice and the media see above C.12 (German Press council).
D.2. Please provide relevant information (e.g. summarising contents) as to theoretical studies existing in your country in the above mentioned field(s).
Hien, Verwaltungsrichter: Selbstverstaendnis – Qualität – Legitimation, Deutsches Verwaltungsblatt 2004, p. 909