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Case:
BVerfGE 27, 71 1 BvR 46/65 Leipziger Volkszeitung-decision "Leipzig Daily Newspaper Case"
Date:
03 October 1969
Judges:
Dr. Müller, Dr. Stein, Ritterspach, Dr. Haager, Rupp-von Brünneck, Dr. Böhmer, Dr. Brox, Dr. Zeidler.
Copyright:
© Nomos Verlagsgesellschaft

HEADNOTES:

1. The right guaranteed in art. 5(1), first sentence, GG freely to inform oneself from generally accessible sources (freedom of information) is an independent basic right of equal rank with freedom of opinion and of the press.

2. A source of information is generally accessible when it is both technically suited and intended for providing information to the general public. It does not lose this character on account of legal measures aimed against dissemination.

3. Art. 5(1), first sentence, GG protects not only active steps to procure information but also simple receipt of information.

4. On the balancing of interests between, on the one hand, freedom of information and, on the other, provisions of criminal law designed to ward off a threat to the Constitution as general laws within the meaning of art. 5(2) GG in the case of confiscation.

Order of the First Panel of 3 October 1969 -- 1 BvR 46/65 --
in the proceedings on the constitutional complaint of Herr . . .
against
the Order of the Lüneburg Higher District Court of May 21, 1964 -- 2 c Js 4923/64 -- 4 AR 5742/64 --.

DECISION:

The Order of the Lüneburg Higher District Court of May 21, 1964 -- 2 c Js 4923/64 -- 4 AR 5742/64 -- violates the Complainant's basic right under art. 5(1), first sentence, of the Basic Law. It is hereby quashed; the matter is referred back to the Lüneburg Higher District Court.

EXTRACT FROM GROUNDS:

A.

I.

1. According to the Act to Monitor Criminal and Other Transportation Prohibitions (Gesetz zur Überwachung strafrechtlicher und anderer Verbringungsverbote; GÜV) of May 24, 1961 (BGBl. I, p. 607), the postal and customs authorities are to ensure that objects (e.g., newspapers, magazines, brochures, information services) are not transported into the territorial scope of validity of this Act, when a criminal law prohibits their import or dissemination for reasons of national security. To the end, the postal and railways authorities sort out all parcels, particularly from the GDR, for which there exist factual indications of a violation of these laws. These authorities then forward the suspicious postal parcels to the Main Customs Offices, which are empowered to open and inspect them. If there continue to be grounds to suspect that the parcels violate a criminal law enacted for reasons of national security, they are sent by the Main Customs Offices to the Public Prosecutor's Office, which may then, pursuant to the provisions of the Rules of Criminal Procedure, petition for the confiscation of the parcel. However, a parcel may only be definitively withheld when a criminal court has ordered confiscation. Confiscation is usually ordered in objective proceedings not aimed at a specific offender and in the process often affects not only the specific copy of the document objected to on account of a violation of criminal laws but also the entire edition or circulation.

. . .

On the basis of Art. 8 of the Eighth Criminal Law Amending Act of June 25, 1968 (BGBl. I, p. 741), in the version of the Act of March 31, 1969 (BGBl. I, p. 269), GDR newspapers and periodicals are presently no longer subject to confiscation when they are obtained via the postal newspaper service or are purchased.

2. In 1964 the Complainant requested acquaintances to send to him for information purposes daily newspapers from the GDR by mail to Münster i.W. One parcel contained a copy of Issue No. 126/1964 of the «Leipziger Volkszeitung» (Leipzig People's Daily) of May 8, 1964. This parcel was stopped during a control under the Monitoring Act in Braunschweig, opened by officials of the Main Customs Office there and then forwarded to the Public Prosecutor's Office. The Public Prosecutor's Office withheld the parcel. In early July 1964, the Complainant filed a petition that the Public Prosecutor's Office release the seized copy of the newspaper, since an acquaintance had sent it to him for personal information. In response . . . the Public Prosecutor's Office notified him that the issue of the «Leipziger Volkszeitung» sent to him had been generally confiscated by orders of the Frankfurt and Lüneburg Higher District Courts. Following a request, the Complainant was sent on Dec. 31, 1964 a copy of the Order of the Lüneburg Higher District Court of May 21, 1964.

3. In this Order, the Lüneburg Higher District Court had confiscated Issue No. 126 of the «Leipziger Volkszeitung» of May 8, 1964 due to violation of §§ 42 and 47 BVerfGG and §§ 129, 94 and 90 a of the Criminal Code. In the grounds for the Order, § 97 of the Criminal Code is also listed as a violated criminal norm. The Order has been final and conclusive since July 15, 1964.

In its grounds for the Order, the Lüneburg Higher District Court stated that the document stemmed from the Socialist Unitary Party of Germany (Sozialistischen Einheitspartei Deutschlands; SED) in the GDR. The parcel was said to be intended to support the efforts of the outlawed, SED-controlled Communist Party of Germany (KPD), which were aimed at establishing in the Federal Republic the tyrranic, despotic rule in place in the GDR (§ 88(2), No. 6, of the Criminal Code, in the version of the Criminal Law Amending Act of Aug. 30, 1951 [BGBl. I, p. 739]). The document was held to have been imported into the Federal Republic for the purpose of dissemination. The Court found this to constitute a violation of the criminal provisions set forth in the operative part of the Order (§§ 42 and 47 BVerfGG; §§ 128, 94 and 90 a of the Criminal Code). The prerequisites for confiscation under §§ 86 and 98 of the Criminal Code were thereby held to have been fulfilled.

. . .

II.

By way of the constitutional complaint filed with the Federal Constitutional Court on Jan. 22, 1965, the Complainant alleges a violation of art. 2(1) and art. 5(1) GG [supplemented with subsequent pleadings by a violation of art. 103(1) GG] by the Order of the Lüneburg Higher District Court.

. . .

III.

On behalf of the Federal Government, the Federal Minister of Justice has submitted comments. He considers the constitutional complaint inadmissible with respect to the allegation under art. 103(1) GG and in all other respects unfounded.

. . .

B.

. . .

C.

I.

The constitutional complaint is founded.

1. In determining that the publication and distribution of the confiscated newspaper violated the provisions set forth in the operative part of the Order and in ordering the confiscation, the Higher District Court did not expressly take into account the impact this had on the freedom of opinion and freedom of the press of the publishers and distributors of this newspaper. This is not constitutionally objectionable. Even though the Order does not reveal which specific comments in the newspaper articles were viewed as being anti-constitutional, it may nevertheless be inferred from the overall context of the grounds that the Higher District Court operated on the assumption that with the publication and distribution of the newspaper, the efforts of the outlawed, SED-controlled KPD were to be supported in violation of §§ 42 and 47 BVerfGG and §§ 128, 94 and 90 a of the Criminal Code. When faced with such direct support for the organizational solidarity of the forbidden KPD, the restriction on freedom of opinion and the press is permissible due to the newspaper's effect of supporting the organization, making the application of the criminal provision constitutionally unobjectionable to this extent (cf. BVerfGE 25, 44 [55 ff.]).

. . .

2. However, in ordering the confiscation, the Higher District Court failed to take into consideration the radiating effects of art. 5(1), first sentence, GG, which guarantees the subscriber or reader of the newspaper the right freely to inform himself from generally accessible sources (freedom of information). By way of the decision to confiscate, the scope of this basic right is encroached to the extent that the decision prevents access to newspapers, which are one of the most important means of information.

The position taken at various points during the drafting of the Eighth Criminal Law Amending Act that impeding the subscription to newspapers from the GDR does not encroach upon the basic rights of citizens of the Federal Republic . . . fails to take into account that the subscription to newspapers involves a bidirectional communications process, which is constitutionally ensured both by the freedom to express and disseminate opinions and by the freedom of information. For this reason, an interference with the communications process affects both areas.

The provisions of criminal law relevant for the decision of the Higher District Court (§§ 86 and 98(2) of the Criminal Code) do not provide for mandatory confiscation but rather leave it to the discretion of the court. In that they are general laws limiting the basic right within the meaning of art. 5(2) GG, these provisions must, in accordance with the case law of the Federal Constitutional Court, be seen in light of the significance of the basic right of freedom of information and be interpreted in such a way that the special value of the basic right is by all means safeguarded (cf. BVerfGE 7, 198 [208 ff.]; BVerfGE 25, 44 [55]). The Higher District Court should have undertaken a balancing of the interests protected by the basic right of freedom of information with the legal values protected by the criminal provisions. Before doing so, the contents and reach of the basic right must first be specified in detail.

II.

1. Up until 1945, German constitutional history did not recognize an autonomous basic right freely to inform oneself from generally accessible sources. This freedom of information first made its way into several state constitutions following World War II . . . and then into the Basic Law. The independent constitutional guarantee of freedom of information in the Basic Law was prompted by the lessons drawn from governmental practice under the National Socialists, which included limitations on information, State control over opinion, State prohibitions on the reception of foreign radio broadcasts and literature and art prohibitions.

2. a) In the constitutional order, freedom of information occupies a rank equal to freedom of opinion and the press. It is not merely a component part of the right freely to express and disseminate opinion. Although this right also encompasses the protection of the reception of the opinion by others, this protection is granted solely to those expressing opinions for the sake of their freedom of opinion. The recipient only plays a passive role in the process. By contrast, freedom of information is above all the right to inform oneself. On the other hand, this right of liberty is the prerequisite to formation of opinion, which precedes expression of opinion: only comprehensive information, which is ensured by sufficient sources of information, enables the free formation and expression of opinion for the individual as well as the community. Finally, by way of the comprehensive information it provides, a free press makes an important contribution to facilitating the citizen's task of forming an opinion and making political decisions (BVerfGE 20, 162 [174]).

For freedom of information as guaranteed by art. 5(1), first sentence, GG, two components are thus of fundamental importance. First, there is the relation to the democratic principle of art. 20(1) GG: a democratic State cannot exist without free, well-informed public opinion. In addition, freedom of information displays an individual-legal component derived from arts 1 and 2(1) GG. It is one of man's elementary needs to inform himself from as many sources as possible, to enlarge his own knowledge and in this manner to develop his personality. Moreover, in the modern industrialized society, the possession of information is of fundamental importance for the individual's social standing. As with the basic right of freedom of expression, the basic right of freedom of information is one of the most important prerequisites for democracy (cf. BVerfGE 7, 198 [208]). Only with the aid of the latter is the citizen put in a position to create on his own the necessary conditions for exercising his personal and political tasks in order to be able to act responsibly in the democratic sense. The more informed the citizen, the more he recognizes the interplay in politics and its importance for his own existence, making him better able to draw the proper conclusions from this; his freedom to exercise co-responsibility and to voice criticism grows along with this. Not least, information enables the individual to become acquainted with the opinions of others and to balance these against one another, thereby eliminating prejudices and awakening toleration for those who are not like-minded.

The special importance attributed to freedom of information in the international field as well is made clear by the bi- and multilateral efforts since 1945 to ensure this freedom as an independent right. After the Resolution of the United Nations General Assembly of Dec. 14, 1946 had comprehended freedom of information in a broad sense, which even included freedom of expression, the General Assembly set forth in Art. 19 of the Universal Declaration of Human Rights of Dec. 10, 1948 the following principle:

«Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.»

This is also the tone taken by Art. 10(1), first and second sentences, of the European Convention for the Protection of Human Rights and Fundamental Freedoms:

«Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.»

b) Art. 5(1), first sentence, GG protects not only active steps to procure information but also simple receipt of information. The Basic Law seeks to guarantee that the individual is informed as comprehensively as possible. It is also conceivable that an individual be «informed» from sources that make their way into his field of perception without his participation: only the possession of information enables an independent selection. This aspect of being able to select is the fundamental definitional element of every piece of information. If it were not guaranteed by freedom of information that sources of information reach the individual at all, then he would also be prevented from selecting among them through active participation. By «to inform himself» is thus also meant the purely intellectual process of registering information. The individual «informs himself» in this manner when the information is brought to him via the mail. If access is interrupted on this path, then a subsequent reliance by the individual on his freedom of information cannot be countered with the argument that since he did not order the document, there is no interference with his freedom «to inform himself». It lies within the very nature of this right that the will to inform oneself sometimes first arises after receipt of the postal parcel.

c) Freedom of information is only constitutionally guaranteed when the source of the information is generally accessible.

This is usually the case when the source of information is both technically suited and intended for providing information to the general public, i.e., to a circle of persons not definable as to individuals. Newspapers and other means of mass communication are therefore by nature generally accessible sources of information. They do not lose the characteristic as generally accessible source even when State measures, such as confiscations and import prohibitions or restrictions, interfere with the possibility of general access. Although such restrictions stand in the way of unimpeded access to the source of information, they do not deprive the source of its quality as being general accessible. . . . Decisive is solely the actual manner in which the information was released, not the State rule or order.

The view that general accessibility is ultimately influenced by sovereign acts . . . contradicts the purpose of the constitutional guarantee of freedom of information. The objective is to enable the individual to form his opinion on the basis of widely dispersed information material. In selecting the material, he is not to be made subject to any influencing by the State. Since, as a result of its connection to the democratic principle, freedom of information is also especially designed to prepare the individual for making a decision on the politics of his own State organs, the basic right must be widely protected against restrictions by these State organs.

The historical background to freedom of information, which is particularly significant on account of the fact that this basic right is so new, likewise reveals that general accessibility is to be measured solely according to factual criteria. Freedom of information was constitutionally guaranteed particularly as a reaction to National Socialist prohibitions and restrictions on information in order to ensure that the individual could inform himself without interference also from sources lying outside the sovereign territory of the Federal Republic's State authority. When the source of information is generally accessible at some given location, regardless of whether this is outside the Federal Republic, then even a final and conclusive confiscation order cannot lead to the deprivation of this source of income's quality of general accessibility.

The systematic of art. 5 GG also lead to the same result. The limitation of the «general laws» in art. 5(2) GG relates to all the basic rights set forth in para. 1. But for freedom of information, the limitation in para. 2 would be largely meaningless if the State were able to define general accessibility and in this way restrict at will the scope of the basic right.

A generally accessible source also does not lose this characteristic when it forms the contents of a postal parcel. The question of general accessibility does not turn on the specific copy of the document but instead on the entire circulation of a magazine. The latter forms the source within the meaning of art. 5(1), first sentence, GG. The procurement of the particular copy is simply the specification of the freedom to inform oneself.

III.

1. In light of the foregoing, Issue No. 126 of the «Leipziger Volkszeitung» of May 8, 1964 affected by the confiscation Order of the Higher District Court is to be considered a generally accessible source within the meaning of art. 5(1), first sentence, GG. The confiscation thus interferred with the Complainant's freedom of information. The confiscation Order is to be quashed because the Higher District Court failed to take into consideration the radiating effects of freedom of information.

2. In the balancing to be undertaken by the Higher District Court on the basis of the meaning of freedom of information as described here, the Court will above all have to take into account the following:

a) While not constitutionally objectionable, the assumption that a confiscatable document violates criminal laws does not, without more, mean that the right of information must give way. The balancing of the freedom of opinion and the press of a document's publisher and distributor against the legal values protected by the criminal laws deals with an active undertaking to create sources of danger. With regard to such documents, freedom of information instead first takes effect after the general access to information has already been opened. The basicrights position of a citizen seeking to inform himself calls for a special balancing of interests. Only threats resulting from the information process justify a restriction on the individual, who, in the concept of the Basic Law, is of full age and is charged with taking part in public decision making.

b) The displacement of freedom of information cannot be justified with the simple argument that the press of the Federal Republic provides sufficient media coverage of the situation in the GDR and the views of those in power there; a precise picture of the factual reports and opinions contained in GDR newspapers can only be gleaned through direct readings.

The right to information would also not have had to give way from the outset if a rule like Art. 8 of the Eighth Criminal Law Amending Act had existed at the time the confiscation decision was reached. The release of various routes of reception (postal newspaper service or through purchase) would at best be sufficient with respect to freedom of information if thereby general accessibility were de facto opened. This is, however, not the case, since the GDR has not sent more newspapers into the Federal Republic via the released routes than it previously had. . . . But if in addition it is de facto possible to receive newspapers through normal postal channels, then the State's interest in «funneling» newspaper imports is no longer prevailing, since every individual citizen has a right to enforce his interest in information.

c) According to the operative part of the Order, the confiscation is based on criminal provisions that protect the fundamental democratic order itself. This also applies to § 128 of the Criminal Code, which, while providing comprehensive protection to the public order, only takes hold here under the aspect of combatting subversive activities, since it is to ward off serious threats stemming from the underground activities of a prohibited organization.

The required balancing is not to aim in isolation at the threat by way of the effects for the individual subscriber but rather must assume that these documents have been sent into the Federal Republic in large numbers, such that it is to be reviewed whether in light of the given situation, a threatening effect generally exists. On the other hand, the instant proceedings solely involve press publications appearing in the GDR and intended for the audience there and not writings published specially for agitation purposes in the Federal Republic. The extent and effects of these two groups are to be treated differently. In addition, the discussion on the legal permissibility and political expediency of the restriction on the import of writings from the GDR mainly deals with daily newspapers and other periodicals from the GDR. In this regard, the view is often taken that as long as they are not latently designed as demoralization material for the Federal Republic, permitting the free subscription of GDR newspapers in their form thus far does not pose a serious threat to our basic order. For instance, during the first deliberations on Oct. 26, 1966 in the Bundestag regarding a law to facilitate the internal German distribution of printing products, former Federal Minister of Justice Dr. Jaeger defended the planned continuation of the restriction with the objective of mutual exchange of newspapers, yet he had to agree with the opponents to this objective to the extent that «we can allow the distribution of newspapers and magazines of the SBZ in the Federal Republic without any true threat to our constitutional order. Due to their lack of true informative value and the primitiveness of their agitation, they currently do not pose any real danger.»

. . .

Furthermore, the Higher District Court will have to deal with the arguments resorted to by the Hamburg Higher District Court (NJW 1967, p. 582 [584 f.]) in the latter's rejection of the confiscation of SED printed writings.

d) Should the Higher District Court not be able to determine from the balancing that freedom of information, to which every citizen is entitled, has priority, then it will also have to review whether there might not be a special, justified interest of individuals in information (cf., e.g., BGHSt 19, 245 [256]) that requires the confiscation, which extends to all copies of the newspaper, to be limited in their favor, particularly since the confiscation can, even when the prerequisites are fulfilled, also be omitted entirely at the discretion of the court.

. . .

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

 

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