Summary:

I.

Criminal proceedings against two alleged former employees of the Syrian General Intelligence Service for crimes in the Syrian civil war began at the Koblenz Higher Regional Court in April 2020. The applicants are Syrian journalists and are seeking to report on the trial. However, they do not speak German. The parties to the proceedings, who do not speak German either, are provided with simultaneous interpretation into Arabic, which is transmitted via headphones. In view of the spread of the coronavirus, the court ordered minimum distancing requirements. Therefore, the applicants were not permitted to provide for their own interpretation into Arabic via so-called chuchotage (whispered simultaneous interpretation). Consequently, the applicants requested that they be given access to the simultaneous interpretation provided by the court to the parties to the proceedings using the applicants’ own headphones. Alternatively, they requested that they be permitted to make their own arrangements in the courtroom for acoustically shielded simultaneous interpretation. The presiding judge rejected these requests in the challenged order.

The applicants claim a violation of their right to freedom of the press.

II.

Based on the considerations below, the Federal Constitutional Court decided to issue a preliminary injunction.

In a dispute, the Federal Constitutional Court provisionally decides a matter by way of a preliminary injunction if this is urgently required to avert severe disadvantage, to prevent imminent violence or for another important reason in the interest of the common good. If a constitutional complaint is neither inadmissible from the outset nor manifestly unfounded, the granting of a preliminary injunction will be based on a weighing of consequences. The consequences that would occur if a temporary injunction were not issued but the constitutional complaint was later successful must be weighed against the disadvantages that would arise if the requested preliminary injunction were issued but the constitutional complaint was not successful.

The constitutional complaint of the applicants is neither inadmissible from the outset nor manifestly unfounded.

In principle, trial-observing media representatives may be referred to the fact that German is the language of the court and do not have to be provided with state resources for interpretation into other languages. However, equal opportunities for interested media representatives must be guaranteed not merely formally, but also realistically. Therefore, the actual situation of the accredited persons and the foreseeably interested persons must be sufficiently taken into account when exercising the power to conduct proceedings. This also includes the language skills of accredited media representatives and thus their fair possibility of following the proceedings and reporting on them.

Whether the applicants’ fundamental rights are violated by the challenged order requires a more detailed assessment, which is reserved for the principal proceedings. In this context, it must be taken into account that this is a criminal case attracting an unusually large amount of public attention and – obviously – that there is interest on the part of Syrian media representatives in particular, who usually speak Arabic and rarely German. This must be taken into account all the more given that Germany is claiming jurisdiction under international criminal law, which it would not have under general principles governing jurisdiction and which derives from the fact that the offences in question affect the international community.

If no preliminary injunction were issued, the applicants, like other foreign media representatives with a special interest in the crimes charged, would be at risk of being excluded for months from the possibility of providing their own reporting on the criminal proceedings, drawing from their presence at the main trial, even though they would have been legally entitled to do so. This unequal treatment, especially in relation to domestic media representatives, weighs heavily because Syrian media representatives in particular can claim a special interest in independent reporting on this trial. This is because the victims, offenders, scene of the crime and historical-political background of the accused acts are of Syrian origin or are located in Syria. There is a great need for information especially among the Syrian population – in Syria and in other countries around the world.

The disadvantages of an exclusion of Syrian journalists outweigh the disadvantages that would arise in the opposite case. It is true that the applicants would then have access to simultaneous interpretation into Arabic, to which they would not have been entitled on the basis of fundamental rights. However, any unequal treatment resulting from this favourable treatment in comparison with other media representatives who do not speak German would be less serious given the special interest of the applicants and the Syrian public and given the numerous seats that are still available in the courtroom. Other media representatives and the general public do not suffer any disadvantage from the preliminary injunction being issued in favour of the applicants. In view of the seats still available, admitting further interpreters to the courtroom would not exceed the total number of persons present that the presiding judge considered acceptable and the general risk of infection associated with the maximum number of persons.