Summary:

I.

The complainant is the editor-in-chief and responsible person within the meaning of the Press Act of a political magazine called CICERO, which appears monthly. In April 2005, CICERO published an article written by a freelance journalist about a terrorist. The article cites extensively from an internal, classified report of the Federal Criminal Police Office. Following the institution of criminal investigation proceedings by the public prosecutor’s office against the complainant and the freelance journalist, the Potsdam Local Court ordered a search of the journalist’s home and office as well as of CICERO’s editorial offices. As grounds for its order, the Local Court stated that the accused, as a journalist, disclosed a secret within the meaning of § 353b of the Criminal Code and in doing so had aided and abetted the disclosure of an official secret. The Local Court held that he had known that the intention of the employee of the Federal Criminal Office who leaked the report to him was to have its secret contents published in the press. The same also applied to the complainant as editor-in-chief and responsible person for CICERO, since he was familiar with the article’s content and it was published with his knowledge.

During the search of the editorial offices, various data storage devices were secured and a copy was made of the hard drive used by the member of the editorial staff in charge of the article at the time.

The complaint by the editor-in-chief against the search and seizure order was dismissed by the Potsdam Regional Court. The seizure of copied computer hard drive was confirmed by another order of the Potsdam Local Court. An appeal by the editor-in-chief against this order was rejected by the Potsdam Regional Court on the basis that the appeal was procedurally moot given that the copy of the data had been deleted in the meantime. In February 2006, the investigation proceedings against the complainant were terminated upon fulfilment of the condition that a sum of EUR 1,000 be paid.

In his constitutional complaint, the complainant alleges that his fundamental rights under Article 5.1 second sentence of the Basic Law (freedom of the press) and Article 19.4 of the Basic Law (right to effective legal protection) have been violated.

II.

The constitutional complaint was successful. The decision by the Federal Constitutional Court is based essentially on the following considerations:

The order to search the editorial department and the seizure of evidence there violate the complainant’s fundamental right to freedom of the press.

The search of magazine offices amounts to an impairment of the freedom of the press given that it constitutes a disruption of editorial work. Furthermore, the order to seize data storage devices for the purpose of evaluating them, also provides investigation authorities with the potential to access editorial data. This constitutes a particularly serious interference with the confidentiality of editorial work, which is covered by the fundamental right to freedom of the press, and also with the relationship of trust with any informants.

This interference is not constitutionally justified. In interpreting and applying the provisions authorising searches and seizures, the courts did not sufficiently take into account the constitutionally required protection of informants. The suspicion, underlying the court order, to the effect that the complainant had committed a crime was not sufficient to justify the search of editorial offices or the seizure of evidentiary material.

§ 353b of the Criminal Code makes the unauthorised disclosure of an official secret punishable. However, in and of itself the publication of a secret in the press does not necessarily indicate that an unauthorised disclosure of an official secret has been committed by the holder of the secret. For example, the statutory definition of an offence pursuant to § 353b of the Criminal Code is not satisfied – thus making aiding and abetting impossible – if documents or files containing official secrets become public inadvertently or through an intermediary who is not subject to a duty of confidentiality. If the holder of classified information only wants to provide the journalist with background information and it is then published contrary to his or her agreement, the crime has already been committed with the disclosure of the secret; the subsequent publication cannot amount to aiding and abetting. In such cases, a search and seizure cannot be ordered for the purposes of clarifying whether the journalist did aid and abet.

Searches and seizures in the course of investigation proceedings against members of the press are impermissible under constitutional law if these exclusively or predominantly serve the purpose of identifying an informant. It is of course permissible to order a search and seizure in proceedings against members of the press in order to investigate a suspected aiding and abetting of the disclosure of official secrets, if the purpose thereof is gaining information directly related to the suspected criminal offence. However, it is not permissible to order a search and seizure for the purpose of establishing the grounds for suspicion, in particular, against the informant. The risk of a violation of the constitutionally mandated protection of informants is particularly great when the suspicion of aiding and abetting a crime is based solely on the fact that an official secret was published in the press and the document in question appears to have found its way into the hands of the journalist without authorisation. In such a situation, the public prosecutor’s office is indeed constitutionally permitted to bring charges against the journalist involved by instituting investigation proceedings against him or her. However, if every suspicion were also sufficient for an order of search and seizure against members of the press and radio, the public prosecutor’s office could, by instituting investigation proceedings, potentially do away with the special constitutional protection of members of the media. Therefore, the criminal procedure rules on search and seizure must be interpreted in such a way that the mere publication of an official secret by a journalist is not sufficient for establishing, under these provisions, the suspicion that the journalist aided and abetted the disclosure of an official secret. Instead, specific factual circumstances are required, which indicate that the holder of classified information intended to disclose a secret and that, therefore, a main offence occurred in respect of which aiding and abetting could be possible.

According to these standards, the search and seizure ordered in this case violated both the protection of editorial work guaranteed by the freedom of the press as well as the protection of informants. The order was made at a time when there were no other reasons besides the publication of a report in a magazine for suspecting that an official secret might have been disclosed by a holder of classified information. All investigations along these lines had until then been unsuccessful. Thus, in the end, the purpose of the search was predominantly to identify the suspected informant at the Federal Criminal Police Office.

In addition, the order by the Regional Court determining that the appeal directed against the order confirming the seizure was procedurally moot and thus settled violated the complainant’s right to effective legal protection. In view of the serious impairment of the freedom of the press, it had to be possible for the complainant to submit the order confirming the seizure of the editorial material for judicial review.