Summary:

I.

In the initial proceedings, a cleric is seeking injunctive relief against a report published by the applicants, a supra-regional media outlet and its employees. The report concerned the allegation that the cleric had been promoted in spite of the decision-makers’ knowledge of allegations of sexual abuse against him. The Higher Regional Court heard a witness on the question of whether there had been ‘sauna visits, alcohol, masturbation and whether pornographic films had been shown in connection with adolescents and young adults during the time of the plaintiff’s service’. For the duration of the witness’s testimony, the Higher Regional Court excluded the public and, furthermore, imposed an obligation to observe secrecy on those present in court in respect of the content of the witness’s statement and its discussion in accordance with § 174.3 of the Courts Constitution Act. The Higher Regional Court justified the imposition of the obligation to observe secrecy with the witness’s interest in protecting his anonymity and his personal sphere of life.

In their constitutional complaint, the applicants assert that the imposed obligation of secrecy violates their freedom of the press, constitutionally guaranteed under the second sentence of Article 5.1 of the Basic Law, as well as the principle of specificity pursuant to Art. 103.2 of the Basic Law.

II.

Based on the considerations below, the First Chamber of the First Senate of the Federal Constitutional Court did not admit the constitutional complaint for decision. Neither the applicants’ submissions nor other evidence provide any indication of errors in the Higher Regional Court’s interpretation or application of the legal basis of the imposed obligation of secrecy that would be relevant under constitutional law.

It is true that the imposed obligation of secrecy involves a particularly serious interference with the applicants’ freedom of the press, in particular with regard to the risk of criminal liability pursuant to § 353d no. 2 of the Criminal Code. The Federal Constitutional Court’s higher degree of scrutiny in the area of communication-related fundamental rights notwithstanding, the applicants fail to substantiate any errors in the assessment and balancing of the protected interests.

Sexual abuse of children and adolescents by clergy and other staff of the Catholic Church is an important social issue that has attracted a lot of public attention. Therefore, there is a public interest in obtaining information in this regard. At the same time, trials take place in public, but not for the public. An unlimited publicity of court hearings must be weighed against significant other interests, including the general right of personality of the persons involved in the proceedings, their right to a fair trial and the proper functioning of the administration of justice. The exemptions from the principle of public proceedings contained in §§ 170 ff. of the Courts Constitution Act take these conflicting interests into account. They also aim to avoid chilling effects on witnesses, which could arise in the absence of the effective protection of witnesses giving testimony and impair the proper functioning of the administration of justice.

When balancing the public interest in obtaining information against the interests in favour of restricting the principle of public proceedings, the matters on which the witness is to be questioned must be taken into account. The applicants wrongly assign the matters on which the witness was questioned to his private or even only the social sphere. They fail to recognise that in the case of sexual abuse, descriptions of the peripheral events are typically inseparably linked to the actual sexual acts. Individual elements of a statement can therefore only be attributed to the social sphere or the private sphere if they are viewed separately. Such an isolated assessment is, however, impermissible. Since the witness was questioned on the background, course and consequences of sexual acts that allegedly happened to him, his right to the free development of his personality and the protection of his intimate sphere were affected. The courts have a particular duty to pay due regard to this right in the administration of justice. The public interest in obtaining information does not merit the same degree of protection as the other interests that conflict with the witness’s general right of personality, in particular the public interest in the proper functioning of the administration of justice and the unimpeded process of finding truth and justice in a court case. The applicants fail to provide sufficiently substantiated reasons in this regard. It is not sufficient to base the constitutional complaint solely on the principle of achieving maximum equilibrium between conflicting interests, in this case between the freedom of the press on the one hand and the witness’s general right of personality on the other.

Moreover, the applicants fail to plausibly substantiate the asserted breach of the principle of proportionality with regard to the element of necessity.

They do not substantiate their assertion that the obligation of secrecy also extends to all possibly identical facts that had already become known before the witness was questioned and is therefore unnecessarily broad and unspecific. A witness statement only includes what the witness testifies in this capacity at a specific time and place. Neither the applicants’ submissions nor other evidence indicate why the obligation of secrecy should not satisfy the principle of specificity.

Likewise, they do not state sufficient reasons as to why the obligation to observe secrecy should have been limited to facts identifying the witness, which in their opinion would have constituted a less intrusive means to protect the witness’s interests. The applicants disregard the fact that the extent to which the witness is already identifiable in his personal and social environment is reinforced with every further public report. The Higher Regional Court’s consideration that the witness’s statement should not become the source of a renewed confrontation of the witness with the events he described through reporting by the applicants is not objectionable under constitutional law.