030 88 70 23 80 kanzlei@ra-juedemann.de

Der EGMR hat einstimmig eine Beschwerde der Axel Springer AG für unzulässig erklärt. Diese hatte die Akkreditierung einer beschränkten Anzahl von Journalisten zu einem Strafverfahren gerügt, die nach einem Losverfahren gewählt wurden. Journalisten der Bildzeitung erhielten keinen Platz. Die Springer AG sah darin u.a. eine Verletzung der Pressefreiheit.

Der EGMR stellte fest, dass die Europäische Konvention für Menschenrechte der Presse keinen Anspruch auf Zugang bestimmte Informationen vermittle.

„The Court found that no right for the press to have access to a particular source of information could be inferred from the Convention.”

Die Beschränkung der Anzahl der zugelassenen Journalisten sei im Hinblick auf das Alter der Angeklagten in Übereinstimmung mit der Konvention erfolgt. Auch seien Pressemeldungen verfasst worden, so dass auch die anderen Journalisten nicht an der Berichterstattung gehindert gewesen seien.

Die Pressemeldung des EGMR:

Selecting journalists by random lot for admission to a juvenile trial did not discriminate against them or restrict their freedom of expression

In its decision in the case of Axel Springer AG v. Germany (application no. 44585/10)
the European Court of Human Rights has unanimously declared the application inadmissible.

The decision is final.
Principal facts

The applicant, Axel Springer AG, is a limited company incorporated under German law
with its registered office in Hamburg. Among other activities, it is the publisher of the
mass-circulation daily newspaper Bild. In April 2009 a couple and their two daughters were murdered in Eislingen. The Ulm public prosecutor’s office charged two men, including the couple’s son, with the murders and a number of thefts. The trial began in the Ulm Regional Court. In accordance with the Juvenile Courts Act, the public was excluded from the trial because the defendants had been juveniles at the time of some of the alleged offences.

On 16 September 2009 the President of the Regional Court’s Juvenile Criminal Division
(“the Division President”) set a limit of nine on the number of journalists allowed to
attend the trial. He stated that if more than nine journalists requested to be present, a
process would take place to select three journalists from each of the following three
categories: regional print media; supra-regional print media and press agencies;
television and radio.

Forty press representatives subsequently applied for a place in the courtroom. After lots
were drawn, the representative of Axel Springer AG, writing for Bild, failed to gain a
place. Axel Springer AG complained to the Division President about the method used to
select journalists and asked for the places to be reallocated, suggesting that a “pool”
would be a preferable solution so that the media admitted to the trial would not enjoy a
monopoly on information. On 16 October 2009 the Division President refused the
request, stating that only a limited number of journalists could be admitted and that a
selection process had proved necessary.

On 23 October 2009 the Stuttgart Court of Appeal declared a subsequent appeal
inadmissible, holding that it did not have jurisdiction to review the Division President’s
order, which could, however, be challenged directly in the Federal Constitutional Court.
It nevertheless added that the Division President had weighed the principles governing
juvenile criminal procedure against the principles of equality of treatment and freedom of
the press and broadcast media. In its view, the process of random selection by lot was
based on a neutral criterion without any discriminatory effects as it had been accessible
to all those taking part.

On 20 January 2010 the Federal Constitutional Court dismissed a constitutional
complaint by Axel Springer AG, holding that the company had not suffered a particularly
serious disadvantage and that the complaint was not of fundamental importance in the
circumstances of the case.

2. Complaints, procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 23 July 2010.
Relying on Article 14 (prohibition of discrimination) in conjunction with Article 10
(freedom of expression), Axel Springer AG alleged that it had not had direct access to
information about the criminal trial it had wished to cover and complained in particular
about the refusal by the Division President to change the system for admitting
journalists to the trial, arguing that it had been the victim of a serious inequality of
treatment as a result of the selection process.

The decision was given by a Chamber of seven judges, composed as follows:
Karel Jungwiert (Czech Republic), President,
Boštjan M. Zupančič (Slovenia),
Mark Villiger (Liechtenstein),
Ann Power-Forde (Ireland),
Ganna Yudkivska (Ukraine),
Angelika Nußberger (Germany),
André Potocki (France), Judges,
and also Claudia Westerdiek, Section Registrar.
Decision of the Court
Article 14 in conjunction with Article 10

The Court found that no right for the press to have access to a particular source of
information could be inferred from the Convention.

It reiterated that, under Article 10, the Contracting States had a certain margin of
appreciation in assessing the necessity and extent of an interference with freedom of
expression, and that Article 14 did not prohibit every difference in treatment in the
exercise of Convention rights and freedoms. A difference in treatment was discriminatory
and breached the principle of equal treatment only if it had no objective and reasonable
justification, that is, if it did not pursue a legitimate aim or if there was not a reasonable
relationship between the aim pursued and the means employed. States also enjoyed a
margin of appreciation in assessing whether differences in otherwise similar situations
justified particular differences in treatment.

The fact that the defendants at the trial in question had been juveniles at the time of
some of the alleged offences meant that the trial had had to be conducted in private.
Article 6 § 1 of the Convention specified, moreover, that the press and public could be
excluded from the courtroom where the interests of juveniles so required.
The Division President of the Regional Court had nevertheless admitted a limited number
of press representatives to the courtroom, in view of the particular interest aroused by
the murders and the fact that the defendants had been juveniles at the relevant time. He
had accepted that the media had a legitimate interest in being able to report on the trial.
The Division President had been perfectly aware of the interest of the press in following
the trial and the public interest in being informed about it. Axel Springer AG had
acknowledged this, having not disputed the restriction on access to the courtroom but
only the method for selecting the journalists admitted. It had alleged discrimination
against the journalists who had not been selected, arguing that a different solution would
have avoided this problem.
The Court observed that the restriction on the number of places, and hence the
possibility that some journalists might not be admitted, had pursued the legitimate aim
of protecting the interests of the defendants, who had been juveniles at the time of
some of the alleged offences. As to whether the means employed had been reasonably
proportionate to the aim pursued, the Court pointed out that the process of selection by
lot had been incapable of favouring a particular press representative over any other. This
method had ensured that all interested journalists had equal access to the neutral
process of allocating the available places.
Lastly, the Court observed that Axel Springer AG had not been formally prevented from
reporting on the trial in question because the Regional Court had published press
releases at the close of each day’s proceedings. It noted that the journalists admitted to
the trial had included a correspondent from a press agency, the role of which was to
make information available to all media. It could not therefore be maintained that Axel
Springer AG had been unable to inform readers about the trial.
Seeing that access to the courtroom had been limited as a matter of necessity and that
the drawing of lots had afforded the press equal access to the admission process, and
having regard to the margin of appreciation enjoyed by States in the sphere of freedom
of expression under Article 10 of the Convention, the Court considered that Axel
Springer AG had not been subjected to an unjustified difference in treatment.
The decision is available only in French.
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The European Court of Human Rights was set up in Strasbourg by the Council of
Europe Member States in 1959 to deal with alleged violations of the 1950 European
Convention on Human Rights.