HEADNOTE:

On the balancing of merits in the seizure and confiscation of a publication imported from the GDR.

Order of the First Panel of 14 October 1969 -- 1 BvR 93/67 --
in the proceedings on the constitutional complaint of the student Dieter D... - Attorney: Advocate Jürgen Borck, Berlin 12, Bleibtreustrasse 15/16 - against a) the order of the Cologne local court of 24 May 1966
b) the order of the Cologne Regional Court of 13 January 1967 - 31 Qs 9/66 --.

DECISION:

The Order of the Cologne Regional Court of 13 January 1967 - 31 Qs 9/66 - infringes the complainant's fundamental right under Article 5(1), first sentence, of the Basic Law. It is quashed. The case is referred back to the Cologne Regional Court

.EXTRACT FROM GROUNDS:

A.

I.

In 1966 the complainant had a copy of No.352 of the "Dokumentation der Zeit" of the German Institute for Contemporary History in Berlin, published in East Berlin, sent to him from there to Cologne. The envelope with the magazine was accompanied by a note from the sender from East Berlin to the effect that the volume was being sent to the complainant at his desire. This postal item of 26 April 1966 was, in connection with checks on 29 April 1966 in accordance with the Act on the monitoring of penal and other prohibitions on transmission of 24 May 1961 - BGBl. I p.607 - (Monitoring Act - GÜV), opened by the customs and passed to the Public Prosecutor's Office .

...

On application by the Public Prosecutor's Office, the local court impounded the letter, with the journal as annex, on 24 May 1966 in accordance with §§ 94, 98 StPO, since it might serve as evidence in investigation proceedings against unknown persons for endangering the State.

In his complaint against this the complainant insisted on immediate liberation of the document, having regard to the general freedom of information under Article 5 Basic Law. The Regional Court threw out the complaint as unjustified.

...

II.

In the constitutional complaint, the complainant objects to infringement of his fundamental rights under Article 5(1), first and third sentences, and Article 10 Basic Law and petitions for the quashing of the Orders of the Cologne local court and Regional Court.

...

In justification of the constitutional complaint he presents the following. Both Orders, the confiscation order of the Düsseldorf Regional Court cited and the impounding of the postal item in accordance with the Monitoring Act, infringed his fundamental rights.

The non-delivery of the publication to him was based on § 93 StGB, which was unconstitutional. This penal provision interfered with the freedom of expression of opinion of the author and disseminator, but at the same time with the freedom of information of recipients of the journal, which was a generally accessible source even after its confiscation. § 93 StGB was not directed against the form of an expression of opinion or the intention lying behind it, but normed an absolute offence of content of opinion. It was accordingly not a general law pursuant to Article 5(2) Basic Law, but the classical case of an exceptional law against the freedom of opinion and information. Additionally, misuse of freedom of opinion ought to be fought only in accordance with the special procedures provided for in the Constitution, in accordance with Articles 18, 9(2) and 21(2) Basic Law. Nor was any interpretation of § 93 StGB in accordance with the Constitution possible. At any rate, § 93 StGB ought not to be interpreted in such a way as to prevent a politically interested student from having the magazine sent to him and informing himself as to its content.

Even given an interpretation of § 93 StGB in accordance with the Constitution, his freedom of information had been infringed. The criminal courts had not made any balancing of the contrasting rights and interests, as would have been necessary in accordance with Article 5 Basic Law and even in accordance with § 86(1), first sentence, StGB.

A further infringement of fundamental rights could be seen in the fact that the journal had come into the hands of the Public Prosecutor on the basis of provisions of the Monitoring Act. The practice of the Monitoring Act had led to the opening of all postal items that in appearance contained printed publications. This was an interference with the essential content of Article 10 Basic Law, even if restriction of this fundamental right was in itself admissible.

The monitoring of the whole of the mail in accordance with the Monitoring Act, the customary confiscation of all copies of a particular journal and the publication of corresponding orders in the Federal Criminal Gazette was a misuse of the postal monopoly of the State and created, as in totalitarian States, an index of banned political writings. This ran counter to the bar on censorship, which also protected the freedom of information.

B.

...

C.

The constitutional complaint is justified. The order of the Regional Court infringes the complainant's fundamental right to freedom of information under Article 5(1), first sentence, Basic Law.

I.

1. The impounding of volume 352 of "Dokumentation der Zeit" ordered by the local court on the basis of §§ 94, 98 StPO and confirmed by the Regional Court restricts the complainant's right to unhampered information from generally accessible sources (freedom of information). Despite the general confiscation by the verdict of the Düsseldorf Regional Court, after the local court order but before the Regional Court order, the document remained a "generally accessible source", since it was intended by the publishers for general information and technically suitable therefor.

2. Freedom of information is an autonomous fundamental right alongside the right to free expression of opinion. Penal measures restricting this freedom of information in accordance with Article 5(2) Basic Law must in turn be seen in the light of the importance of the fundamental right and interpreted in such a way that the special value content of the fundamental right remains upheld (cf. BVerfGE 7, 198 [208ff.]). This is true particularly in the area of the criminal law of State security (cf. BVerfGE 25, 44 [55]). Courts applying such penal norms must therefore carry out a balancing of merits between the interests protected by the fundamental right to freedom of information and the penal provisions defending against endangerment to the Constitution.

...

It can be seen from the order challenged that the Regional Court regarded itself as entitled to hand over the document to the complainant, suspending the impounding, if he asserted a justified interest in information. If the Regional Court regarded itself as empowered to decide in the matter, then it ought to have drawn a balance between freedom of information and the penal norms defending against endangerment of the Constitution.

Admittedly, all that was to be decided was the complaint against the temporary impounding, based on §§ 94, 98 StPO, which served to secure a piece of evidence. Even and especially in the case of such provisional penal procedural measures, however, the fundamental rights of those concerned guaranteed by Article 5(1) Basic Law are carefully to be taken into account, especially since impounding is not prescribed compulsorily in § 94 StPO, but placed within the judge's discretion (cf. BVerfGE 20, 162 [186f., 213f.]). The Regional Court failed to see this in regarding only a justified interest in information by the complainant, that is, apparently, one going beyond the general one, as a basis for a possible entitlement to the handing over of the document. Article 5(1), first sentence, Basic Law, however, protects the general interest in information that the complainant had displayed by ordering the publication. Only if the Regional Court had evaluated the interest in the information as less than the interest in criminal prosecution, because of suspicion of content of the document that was particularly threatening to the State and boded severe danger, should it have gone on to consider a possible special need for information, and if appropriate recognized it. The Regional Court failed to see this irradiative effect of Article 5(1), first sentence, Basic Law. Its order must therefore be quashed.

...

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

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