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Preliminary injunction against rejection of audio-visual witness examination in a criminal trial
Press Release No. 18/2014 of 28 February 2014
Order of 27 February 2014
2 BvR 261/14
In a decision that was published today, the Third Chamber of the Second Senate of the Federal Constitutional Court has, by way of a preliminary injunction until a decision is made in the principal proceedings, forbidden the Waldshut-Tiengen Regional Court (Landgericht) from examining a witness unless this examination is carried out by audio-visual means. Audio-visual examination of a witness involves the statement being transmitted live in image and sound from another room into the courtroom. The complainant is an alleged victim of the defendant, who is accused of sexual offences and assault. The Chamber based its decision on a weighing of consequences, namely that by carrying out the examination in the courtroom, one would risk irreparable legal detriment if, as claimed by the complainant, direct confrontation with the defendant would actually lead to retraumatisation.
Facts of the Case and Course of the Proceedings:
The complainant has been summoned to appear on 4 March 2014 as a witness in a criminal trial in the Waldshut-Tiengen Regional Court. The Public Prosecutor's Office accuses the defendant of having on several occasions secretly slipped consciousness-altering substances into the drinks of women, including the complainant, while on dates with them, and then having sexual intercourse with them against their will. The defendant rejects these accusations, claiming that in each case the sexual intercourse was consensual.
The complainant has petitioned that the witness examination be carried out via an audio-visual link pursuant to § 247a sec. 1 of the German Code of Criminal Procedure since otherwise, there would be a risk of serious detriment to her mental well-being. She states that she has suppressed what happened and closed it off to emotional access. The witness examination by the police has already brought her life into disarray. Initial therapeutic progress may be put at risk, she states, if she is again confronted with the accused in the same room or has to describe the alleged crime - even with the public excluded - in the atmosphere of principal proceedings, and in the direct presence of the persons necessarily present in such proceedings. This would, she states, be tantamount to reliving the experience with spectators.
In its decision of 5 February 2014, the Regional Court rejected this petition. The complainant filed a constitutional complaint against this decision, linking the complaint with an application for a preliminary injunction.
Key Considerations of the Chamber:
1. Under § 32 sec. 1 of the Federal Constitutional Court Act, the Federal Constitutional Court may deal with a matter provisionally via a preliminary injunction if this is urgently needed to avert serious detriment, prevent imminent violence, or for another important reason urgently needed in the interest of the common good. In general, the reasons claimed for the unconstitutionality of the challenged sovereign act do not come into consideration here, unless the constitutional complaint is from the outset inadmissible or clearly unfounded. If the outcome is open, the Federal Constitutional Court must balance the consequences which would ensue if the preliminary injunction were not granted while the constitutional complaint were successful, against the disadvantages which would accrue if the desired preliminary injunction were granted but the constitutional complaint were rejected.
2. The constitutional complaint is neither from the outset inadmissible nor clearly unfounded.
It cannot be ruled out that the Regional Court has overlooked the significance and scope of the complainant's fundamental right to physical integrity under the first sentence of Art. 2 sec. 2 of the Basic Law (Grundgesetz - GG). In the present case, there is reason to believe that the Regional Court reached its decision by considering the factors in the interests of the accused and of criminal justice, without being able reliably to consider the opposing interests of the complainant. In view of the specific indications of post-traumatic stress disorder as attested by a medical report and a report by the safe house for women and children, which explicitly refers to the risk of "long-term mental destabilisation" in the event of a direct examination, the Regional Court should not have simply referred to what is, in its opinion, the not clearly established risk to the complainant's mental health. It does not seem unlikely that the court was obliged to remove any doubts regarding the extent of the imminent detriment and the likelihood of its realisation through additional questioning of the attending doctor or by calling on an expert witness, taking into account the complainant's individual stress factor, so as to be able to make its decision, which requires the balancing of interests, on a sound factual basis.
According to the complainant's testimony, it also does not seem clearly impossible that there was a violation of the prohibition of arbitrariness (Art. 3 sec. 1 GG). Should the inadequate technical means have affected the court's discretion in taking the decision, this would constitute an extraneous consideration, which could not be justified. Culpable conduct of the court would not be necessary. Thus - depending on the specific circumstances of the case - the prospects of success of the constitutional complaint remain open.
3. In the context of the consequently required balancing, the reasons in favour of granting a preliminary injunction prevail. If the injunction were not granted, but the constitutional complaint were subsequently found well-founded, the examination of the complainant could in the meantime be carried out in the presence of the accused and the other necessary attendees. Compared to this risk of an irreparable legal detriment, the disadvantages that would accrue if a preliminary injunction were granted but the constitutional complaint failed in the principal proceedings, are less severe.