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Case:
BVerfGE 27, 88 1 BvR 30/66 "Demokrat Newspaper Case"
Date:
14 October 1969
Judges:
Dr. Müller, Dr. Stein, Ritterspach, Dr. Haager, Rupp-v. Brünneck, Dr. Böhmer, Dr. Brox, Dr. Zeidler.
Copyright:
© Nomos Verlagsgesellschaft

HEADNOTES:

1. Interference with freedom of information (Article 5(1), first sentence, Basic Law) may result not only from final withholding of a piece of information but also from delays resulting from checks.

2. Monitoring of mail brought from the GDR into the Federal Republic of Germany in accordance with the Act on the monitoring of penal and other prohibitions of transmission of 24 May 1961 - BGBl I p.607 - does not infringe Article 5(1), first sentence, Basic Law if carried out in a way that takes account of freedom of information.

Order of the First Panel of 14 October 1969 -- 1 BvR 30/66 --
in the proceedings on the constitutional complaints of businessman and office supervisor... - Attorney: Advocate Dr. H.G. Baare-Schmidt, Schwarzenbek bei Hamburg, Hamburger Strasse 30 a - against 1. the check carried out by the main customs office, Hanover, and the Public Prosecutor's Office, Lüneburg (2 c Js 8177/65) in August 1965 on a postal item addressed to the complainant containing issues 182/1965 and 183/1965 of the newspaper "Der Demokrat"; 2. the check carried out by the main customs office, Hamburg, and the Public Prosecutor's Office, Hamburg (146 Js 439/66) in April and May 1966 on a postal item addressed to the complainant containing issues 86/1966 and 88/1966 of the newspaper "Der Demokrat".

DECISION:

The constitutional complaints are dismissed.

EXTRACT FROM GROUNDS:

A.

I.

The First Section of the Act on the monitoring of penal and other prohibitions of transmission of 24 May 1961 - BGBl I p.607 (Monitoring Act - GÜV) provides that objects the import of which might infringe a penal ban on import or distribution based on reasons of State security are to be stopped on entry to the Federal Republic of Germany, checked and submitted for a decision on confiscation to the Public Prosecutor, who shall where appropriate apply for confiscation in accordance with the provisions of the Code of Criminal Procedure.

...

II.

As an office supervisor, the complainant is a municipal honorary official. He belongs to the CDU and the Europa-Union. He frequently receives by post, without having ordered it, the newspaper of the Ost-CDU "Der Demokrat", published in Neubrandenburg.

1. In August 1965 two copies of this newspaper, numbers 182 and 183 of 6 and 7 August 1965, were sent to the complainant from the GDR in an envelope addressed by hand. On the basis of the Monitoring Act, the postal authorities stopped the package and passed it to the customs office. The customs office opened it and on 12 August 1965 submitted it to the Public Prosecutor's office. On a petition of the same date from the Public Prosecutor's Office the Regional Court provided for confiscation of issue no.182, because the publication infringed §§ 93, 97 StGB. The complainant was not informed of the order.

No.183 of the newspaper was freed by the Public Prosecutor's Office on 13 August 1965. The fact was marked by a stamp on the reclosed envelope. The Public Prosecutor's Office attached to the package a form stating that no.182 had been presented to the competent court for confiscation because of content endangering the State and could therefore not be handed over.

The complainant lodged an objection with the Public Prosecutor's Office against the "censorship" of his mail.... The Senior Public Prosecutor at the Lüneburg Regional Court dismissed the objection as unjustified, basing himself inter alia on the provisions of the Monitoring Act, of § 93 StGB and of § 74 a GVG. On the objection lodged against this decision the Prosecutor General informed the complainant that he saw no occasion for disciplinary measures since the decision challenged accurately conveyed the factual and legal position.

2. An envelope addressed by hand to the complainant, posted on 15 April 1966, contained nos.86 and 88 of the newspaper "Der Demokrat", of 13 and 15 April 1966.

The customs office opened the package after presentation by the postal authorities and forwarded it on 22 April 1966 to the Public Prosecutor's Office. After enquiries at the Criminal Office and the security section of the Central Criminal Office had established that both issues had not been generally confiscated, the Public Prosecutor released the package on 23 May 1966.

...

III.

The complainant first lodged a constitutional complaint against the measures concerning the August 1965 package. In a later document, termed an extension and reformulation of the constitutional complaint, he also challenged the checking of issues 86 and 88 of 1966 by the authorities. He objects to infringement of Article 1, Article 5(1), Article 10, Article 101 and Article 103 Basic Law, and applies for a finding that the mail censorship exercised against him by the customs authorities and the Public Prosecutors infringed the constitutional provisions mentioned and also that any repetition of the measures complained of is unconstitutional.

....

IV.

The Federal Minister for Justice regards the constitutional complaint as inadmissible, but in any case as unjustified.

....

B.

The constitutional complaints are admissible.

. . .

C.

The constitutional complaints are not justified.

I.

1. The basic right of freedom of information under Article 5(1), first sentence, Basic Law, indispensable for opinion formation and constitutive for the free democratic basic order as such, protects also the mere receipt of information, so that this fundamental right is interfered with even where newspapers, as in the present case, are not ordered by the complainant but sent to him without action by him. Nor is freedom of information restricted only by definitive withholding of a piece of information, but even by delay resulting from checks. This follows simply from the tenor of Article 5(1) Basic Law, which guarantees unhindered information, but above all from the meaning and significance of freedom of information. Especially in the case of daily newspapers, the date of a piece of information and a comparison with other publications appearing at the same time is of essential importance. If a newspaper reaches the reader only some time after it appears, comparisons with other newspapers and meaningful treatment of the information contained in the newspaper will often no longer be possible.

In the case of the packages stopped and checked the sources of information were also generally accessible, since the newspaper "Der Demokrat" is in fact generally accessible, at least in the GDR; it does not lose this character because of the fact that individual issues are confiscated or particular issues sent to particular recipients.

2. The opening and checking by the customs offices and Public Prosecutor's Offices of the two packages sent to the complainant were based on the Monitoring Act and the Code of Criminal Procedure, as general laws limiting the freedom of information within the meaning of Article 5(2) Basic Law. The measures challenged also remained within their limits.

a) The meaning and content of §§ 1-3 of the Monitoring Act are aimed specifically at checking all packages reaching the Federal Republic of Germany which seem from external inspection to be suspect of having a content that endangers the State, contrary to a penal Act. Such controls are not generally inadmissible, even considering the irradiative effect of freedom of information. If a newspaper or other information source promotes the organizational cohesion of a banned party, dissolved by the Federal Constitutional Court, or its content criminally attacks the free democratic basic order with anti-constitutional intent, then, after a weighing up of the dangers threatening the community against the importance of freedom of information, it may, on certain preconditions, be confiscated even against the recipient's will. If, then, confiscation is in some circumstances justified, then verification that is merely preparatory to confiscation and delays the possibility of information must a fortiori be admissible. Given the multitude of publications sent from the GDR to the Federal Republic of Germany, including a large proportion of writings produced specifically as propaganda material and agitating against the democratic basic order, effective control can be exercised only by opening and checking all packages whenever external observation raises the suspicion that they might contain writings subject to confiscation.

These requirements are met by the Monitoring Act, since it assigns to the customs authorities the task of opening and checking an arriving package where there are actual grounds for supposing an infringement of a ban on importation based on reasons of State security. The constitutional principle of proportionality however requires that the checks be so handled as to take the recipient's right to information as far as possible into account, in particular by not bringing about any unacceptable delay in forwarding. The Monitoring Act cannot be objected to in this respect either. Given prompt handling of the packages by the post office, the customs authorities and the Public Prosecutor's Office, the checking procedure can be concluded sufficiently fast that the information source can still meaningfully be used by the recipient.

b) The actual handling of the checks in the measures challenged took adequate account of the irradiative effect of freedom of information,
Where the complainant doubts that the packages were opened by the customs and assumes that this was done by an unknown person, this is a matter of mere presumption, which cannot furnish any occasion of constitutional verification. The same applies to his suspicion that many packages may have been destroyed without lawful procedure.

Nor are there constitutional objections to the fact that the packages were not brought before a judge for decision. Formal seizure is required only where the object to be secured is in the custody of a person not prepared to surrender it voluntarily (§ 2(2) GÜV, § 94(2) StPO). In the case of the temporary securing of the postal packages addressed to the complainant, however, there was no custody by a person unwilling to surrender them; the sender and recipient had no custody and the postal authorities were prepared to surrender them.

The duration of the delay brought about by the checks was also still tolerable for the complainant.

....

II.

The provisions of the Monitoring Act and the actual exercise of the checks do not infringe any other fundamental rights or rights similar to fundamental rights of the complainant.

1. No infringement of the bar on censorship that would encroach on the complainant's fundamental rights is present. Whether Article 5(1), third sentence, Basic Law forbids only "prior censorship" exercised before publication of an intellectual work or also "subsequent censorship", and further whether the bar on censorship contains a separate fundamental right or merely constitutes a limit to intervention, reducing possibilities of intervention to a particular level, need not be gone into here. At any rate, the bar on censorship by its nature protects only acts of expression of opinion and possibly also of dissemination of opinion, and accordingly the author and in certain circumstances also the distributor of an intellectual work. Its reader or recipient is by contrast affected by a censorship measure only as regards his freedom of information, so that he cannot appeal to the ban on censorship, which for him has only reflex effects.

2. The privacy of posts and telecommunications (Article 10(1) Basic Law) is, in accordance with the reservation as to enactment in Article 10(2), first sentence, Basic Law, limited by § 4 GÜV, in accordance with §§ 2 and 3 GÜV. Certainly, the reservation as to enactment, as with the limitation in Article 5(2) Basic Law, does not mean any absolute priority for every restricting Act. If however checks become necessary for reasons of State security, which admissibly restrict freedom of information, having regard to its essential content, then these also justify to that extent a limitation of privacy of posts and telecommunications. The complainant's fundamental right under Article 10(1) Basic Law is accordingly not infringed.

3. Nor can any breach of Article 101(1) Basic Law be seen. Article 101(1), first sentence, Basic Law relates only to extraordinary courts; among these are neither the Public Prosecutor's Offices nor the customs authorities.

...

4. Finally, the complainant's right to a legal hearing has not been infringed either. Article 103(1) Basic Law applies only to judicial proceedings (BVerfGE 9, 89 [95]), not at issue here. To the extent that the principle of a legal hearing might be to be derived for preliminary procedure from the principle of the rule of law, then, as with Article 103(1) Basic Law, the aspect of especial urgency ought to be taken into account (BVerfGE 18,399 [404]).

...

Judges: Dr. Müller, Dr. Stein, Ritterspach, Dr. Haager, Rupp-v. Brünneck, Dr. Böhmer, Dr. Brox, Dr. Zeidler.

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