- BVerfGE 20, 162 1 BvR 586/62, 610/63 and 512/64 Spiegel-decision
- 05 August 1966
- President Dr. Müller, Dr. Berger, Dr. Scholtissek, Dr. Stein, Ritterspach, Dr. Haager, Rupp-von Brünneck, Dr. Böhmer.
- © Nomos Verlagsgesellschaft
On the issue of the constitutionality of the search of press offices.
Partial Judgment of the First Panel of 5 August 1966 on the basis of the oral hearings of 25, 26 and 27 January 1966 -- 1 BvR 586/62, 610/63 and 512/64 --
in the proceedings on the constitutional complaint by the Spiegel Publishing Company, legally represented by Rudolf Augstein GmbH as personally liable shareholder, in turn represented by the Manager A. -- agent: attorney ... and Professor ...
1. a) the petition by the Federal Prosecutor's Office for the issuance of a search and seizure order against the Publisher Rudolf Augstein of 23 October 1952;
b) the petitions by the Federal Prosecutor's Office for the issuance of arrest warrants against the Publisher Rudolf Augstein of 23 October 1962, the Director of the Company Hans Detlev Bremer of 2 November 1962, the Chief Editor Claus Jacobi of 27 October 1962, the Assistant Chief Editor Conrad Ahlers of 23 October 1962, and Editor Hans Schmelz of 27 October 1962;
2. the provisional arrest of Chief Editor Claus Jacobi, the Chief Editor Johannes K. Engel, the Assistant Chief Editor Hans Dieter Jaene;
3. the arrest warrants by the investigating judges of the Federal High Court against the Publisher Rudolf Augstein of 23 October 1962, the Director of the Company Hans Detlev Bremer of 2 November 1962, the Chief Editor Claus Jacobi of 27 October 1962, the Assistant Chief Editor Conrad Ahlers of 23 October 1962, and Editor Hans Schmelz of 27 October 1962;
4. a) the search and seizure order by the investigating judge of the Federal High Court against Rudolf Augstein of 23 October 1962 -- 6 BJs 469/62;
b) the orders by the investigating judges of the Federal High Court confirming the seizure against Rudolf Augstein, Hans Dieter Jaene and Hans Schmelz of 23 November 1962, and against Rudolf Augstein, et al. of 25 November 1962 -- 6 BJs 469/62;
c) the orders of the 3rd Criminal Senate of the Federal High Court of 22 November 1962 and 7 December 1962 -- 6 BJs 469/62 --; of 31 October 1962 -- 3 StB 12/63 --; and of 4 August 1964 -- 3 StB 12/63;
5. a) the forwarding of the released documents Nos. 8, 251, 252, 649, 236, 635, 749 = 193 of the Hamburg Seizure List to other authorities by the Federal Prosecutor's Office, and
b) the refusal of the investigating organs to release the documents of the Spiegel Publishing Company seized pursuant to orders of the 3rd Criminal Senate of the Federal High Court of 4 August 1964 -- 3 StG 12/63 --, 14 October 1964 -- 6 BJs 469/62 -- and 6 August 1965 -- 6 StE 4/64 -- and to destroy all copies and reproductions of the seized documents.
The constitutional complaint is rejected.
EXTRACT FROM GROUNDS:
1. The Complainant operates a publishing company that publishes the news magazine «Der Spiegel», which appears weekly and as of the beginning of October 1962 had a circulation of roughly 500,000. Publisher of the magazine is Rudolf Augstein, who is also the Manager of the Complainant.
On 10 October 1962, there appeared in No. 41 of this magazine an article entitled «Contingent Defense Readiness» (Bedingt abwehrbereit), which discussed the military situation of the Federal Republic and NATO as well as military and strategic problems and future plans. Based on the results of the NATO exercise «Fallex 62», the article came to the conclusion that under its present status, the Federal Armed Forces (Bundeswehr) exhibited «contingent defense readiness», i.e., was not in all respects militarily prepared for an attack. The article heatedly objected to providing the Bundeswehr with nuclear weapons and, in opposition to the view of the former Federal Minister of Defense Strauß, advocated stronger deployment of traditional weapons. In so doing, it cited details relating not only to the course of the Fallex exercise and the current armaments status but also to the military planning of NATO and the Bundeswehr. In this context, the article also published pictures of new weapons. As is customary, the author of this article was not named. The masthead listed as responsible editor for the area of the Bundeswehr Conrad Ahlers, who is also Assistant Chief Editor.
On the same or the following day, the federal Public Prosecutor General initiated an investigation on charges of treason against the Publisher and several Chief Editors of the magazine. He requested an expert opinion from the Federal Ministry of Defense, which was prepared by Superior Governmental Council Dr. W., who worked in the Ministry at that time. Following submission of the expert opinion and after extensive preliminary discussions with Dr. W. and the former State Secretary in the Federal Ministry of Defense, H., the Public Prosecutor General obtained judicial search warrants and arrest warrants against Augstein and Ahlers on 23 October 1962.
The search warrant against Augstein reads as follows:
In the investigation against Rudolf Augstein, Director of the Publishing Company, on charges of treason, the Court hereby orders pursuant to petition by the Public Prosecutor General at the Federal High Court of Justice the search of the person, the home and other premises of the suspect as well as all business offices in Hamburg and Bonn and his archives and the seizure of evidence and objects found in this search that are subject to confiscation.
The search may also be conducted during the night -- §§ 94, 98, 102, 104, 105, 168 a StPO (Rules of Criminal Procedure) --.
There is strong reason to believe that the suspect has committed a crime under § 100(1) of the Criminal Code. He is further suspected of having violated § 333 of the Criminal Code, in that the State secrets betrayed by him are likely to have come from officials or members of the Armed Forces who have been encouraged by him or his agents to violate their official duties by way of monetary gifts or the granting of other benefits. The ordered search is necessary, since it may be assumed that it will lead to the finding of evidence that is important for the investigation or subject to confiscation.
Under the arrest warrant, the Publisher of the magazine is strongly suspected of having betrayed State secrets -- a crime under § 100(1) of the Criminal Code. The arrest warrant is justified as follows:
The suspect is Publisher of the news magazine «Der Spiegel». With his knowledge and consent, the cover story «Bundeswehr» (pp. 32 ff.), which appeared in Issue No. 41 delivered on 8 October 1962, publicly revealed facts from the area of the Bundeswehr and NATO, which are required to be kept secret from a foreign government for the good of the Federal Republic. There is strong reason to believe that the suspect was aware of the need to keep these facts secret and that he consented to the threat to the good of the Federal Republic associated with their revelation.
Since a crime is the subject matter of the proceedings, there is reason to assume that suspicion of flight exists. In addition, with regard to the nature of the crime with which the suspect is charged, there is reason to believe that if he is released, he will impede the ascertainment of the truth by destroying traces of the crime and other types of evidence or by influencing witnesses or other suspects (§ 112 of the Rules of Criminal Procedure).
The search of the offices of the Spiegel Publishing Company in Hamburg and of the offices in Bonn began on the evening of 26 October a Friday. The search in Bonn lasted several hours. In Hamburg, all offices were initially locked and sealed and the employees required to leave the building. At this point, the final work on the next issue was about to be concluded. At the intercession of Chief Editor Jacobi, the shipment documents were released, and the Desk Editor was permitted to bring to an end with roughly ten employees the work required for the publication of the next issue. The investigation of the company offices lasted until 25 November 1962. In the interim, various offices within the building were gradually released.
An extensive amount of material was secured and then seized by way of orders of the investigating judges of Nov. 23 and 25, 1962. With two Orders of Nov. 22 and 7 December 1962, the 3rd Criminal Senate of the Federal High Court rejected the Complainant's objection to the search warrant of the investigating judge. On 31 October 1963, the 3rd Criminal Senate dismissed a renewed objection to the search warrant and an objection to the seizure warrants of the investigating judges of Nov. 23 and 25, 1962. Following a further objection by the Complainant, the Federal High Court in part lifted the seizure by Order of 4 August 1964.
During the course of the proceedings, Chief Editors Jacobi, Jaene and Engel were temporarily taken into custody but shortly thereafter released; Company Director Becker and Publisher Augstein, Chief Editors Jacobi and Ahlers and Editor Schmelz was arrested on the basis of judicial arrest warrants.
On 15 October 1964, the Federal Public Prosecutor filed an indictment against Augstein, Ahlers and Obersten i.G. Martin. By Order of 13 May 1965, the 3 d Criminal Senate of the Federal High Court refused to initiate the main proceedings against the indictees Augstein and Ahlers and dropped prosecution for lack of evidence: Although «with respect to the preliminary publications, it may be assumed that several facts in need of secrecy (§ 99(1) of the Criminal Code) may have been published», the Court stated that it will not be able to be proved that the two indictees at least tolerated the risk that the two articles might contain facts in need of secrecy. Some of the seized documents are still being held at the 3rd Criminal Senate.
2. As early as 29 October 1962, the Complainant filed a constitutional complaint against the «search action» with the allegation of the violation of arts. 5, 13 and 14 Basic Law and applied for the issuance of a temporary injunction. By decision of 9 November 1962, the Federal Constitutional Court rejected the issuance of a temporary order. The constitutional complaint was extended to the above-mentioned orders of the Federal High Court.
With its pleadings of 29 November 1965, the Complainant summarized the petitions submitted thus far.
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4. In support of the constitutional complaint, the Complainant has submitted expert opinions by Professors Dr. K. and Dr. P. Sch., which deal with freedom of the press in general and its relationship to measures of constraint in criminal procedure. In the view of the Complainant, the attacked sovereign acts violate the basic right of freedom of the press.
The Complainant asserts that while §§ 99 and 100 of the Criminal Code are in themselves not unconstitutional, the application of the confirmation and mosaic theory developed for these provisions to treason is not compatible with the basic right under art. 5(1), second sentence, Basic Law. Since all of the facts contained in the «Spiegel» article were published in advance, it thus could not have contained State secrets and thus could not have endangered the good of the Federal Republic. The Complainant further asserts that with regard to the so-called expert opinion on the secret character of the published facts, which underlied the constraint measures of criminal procedure, this only involved the position of the Federal Ministry of Defense; this position is said to have been insufficient, since the advance publications were not reviewed; further, the drafter of this expert opinion is alleged to have been unqualified for the preparation of such on account of a lack of expert military knowledge. The Complainant alleges that the use of this expert opinion to support the charge of intentional treason was therefore arbitrary.
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Moreover, the Complainant asserts that the issuance of the search warrant was unconstitutional, since in applying constraint measures of criminal procedure against press companies, the needs of a free press and those of criminal prosecution must be carefully balanced. This does not mean that every action against a press company is precluded. But prior to such a serious interference, as was represented by the search of a press company, it should first have been attempted to clarify the alleged crime in some other manner: the material substance of the crime (the corpus delicti) could have been ascertained with the aid of an objectionless military expert opinion based on the published article, and the subjective side of the crime, by interrogating the responsible editor.
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The attacked orders of the Federal High Court are said to be unconstitutional insofar as they covered unconstitutional investigative measures.
The Federal Government stresses the duty of allegiance of the press and its co-responsibility for the internal and external security of the State. The State is said to be required to ensure that the intellectual debate ensuing in the press can take place in freedom. Therefore, the State must, when required, support the press with positive measures. In this area, however, the legislature has a broad margin of discretion. It is asserted that art. 5 Basic Law does not demand that the press be granted certain privileges.
The Federal Government firmly rejects the view of the Complainant that the Federal Public Prosecutor's Office acted arbitrarily.
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3. The constitutional complainant is admissible to the extent that it is directed against the issuance of the search warrant, the seizure warrants of the investigating judge and the orders of the Federal High Court. Although the search has been concluded, there still remains a need for a remedy for the Complainant in the constitutional review of the search warrant and the seizure warrants (BVerfGE 9, 89 [93 f.]). Furthermore, there still remains a current cause of complaint, since a number of the seized materials have not yet been returned to the Complainant.
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1. A free press not steered by public authority and subject to no censorship is a fundamental element of the liberal State; in particular, a free, regularly appearing political press is indispensible for modern democracy. If the citizen is to make political decisions, then he must not only be comprehensively informed but also be able to know and then balance the opinions that others have formed. The press stimulates this on-going discussion; it procures information, comments on it itself and thus functions as an orienting force in the public debate. Public opinion articulates itself within the press; arguments become clarified by statement and counter-statement, gain distinct contours and thus make it easier for the citizen to come to a decision. In the representative democracy, the press is also located as a permanent intermediary and control organ between the people and its elected representatives in parliament and government. It summarizes critically the opinions and demands that incessantly crop up in society and its groups, gives them a forum for discussion and delivers them to the politically active organs of the State, which in this manner are constantly able to measure their decisions, even in individual issues of day-to-day politics, against the standard of the views actually held among the people.
Although the «public function» thus incumbent upon the press is everso important, it is just as unable to be fulfilled by organized State authority. Press companies must be able to be formed freely within society. They operate according to the principles of the private economy and are organized in forms of private law. The compete with one another both intellectually and commercially, competition with which public authority is essentially prohibited from interfering.
2. The function of the free press in the democratic State is reflected in its legal status under the Constitution. In art. 5, the Basic Law guarantees freedom of the press. In the first place, this provision -- in accordance with its systematic rank and its traditional understanding -- accords persons and companies working in the field of the press a subjective basic right guaranteeing freedom from State constraint and ensuring them a preferred legal status in certain respects. At the same time, however, art. 5 Basic Law also has an objective legal nature: it guarantees the institution «Free Press». Independent of the subjective right available to individuals under this provision, the State is obligated to ensure that in all areas of its legal system where the scope of applicability of a given norm affects the press, the basic tenet of freedom of the press is respected. Free founding of press organs, free access to press professions and duties on public authorities to provide information are, for example, the fundamental result of this; but one might also conceive of a duty on the State to ward off threats that could arise for a free press from the formation of monopolies over opinion.
The autonomy of the press ensured by art. 5 Basic Law ranges from the procurement of information to the dissemination of news and opinions (BVerfGE 10, 118 ; BVerfGE 12, 205 ). Therefore, freedom of the press also includes a certain degree of protection for the confidential relationships between the press and its private sources of information. Such protection is absolutely essential since the press, while unable to forego privately supplied information, can only expect these sources of information to be productive when the providers of the information can be totally certain that «editorial secrecy» is upheld.
3. Freedom of the press harbors the possibility that it might conflict with other values protected by the Basic Law; this could involve the rights and interests of individuals, association and groups or even the community itself. In regulating such conflicts, the Basic Law makes reference to the general legal system, to which the press is also subject. Legal values of others, as well as of the general public, that are at least of equal rank of freedom of the press must in turn be respected by the press. Although members of the press enjoy a preferred status in certain respects, this is solely provided to them for the sake of their function and only within the scope of this function. These are not personal privileges; the type and extent of exemptions from legal norms applying to all must in every instance be capable of being justified by virtue of the nature of the matter.
The reference to the general legal system finds expression in art. 5(2) Basic Law, where freedom of the press is «limited by the provisions of the general laws». In its decision of 15 January 1958 (BVerfGE 7, 198 [208 ff.]), the Federal Constitutional Court dealt with freedom of opinion and its relationship to the general laws. Although the Court held that freedom of opinion is limited by the general laws, the latter must always be read in light of freedom of opinion and therefore, where necessary, themselves restrict their limiting effect on freedom of opinion. These principles also apply by analogy to freedom of the press; they acquire even greater significance since opinions expressed in the press normally seek to contribute to the formation of public opinion, i.e., they initially may be assumed to be admissible even when they encroach on the legal sphere of others (id. at 212). The sense of the decision as applied to freedom of the press is thus the safeguarding of this liberty against its being relativized by the general laws and the courts applying them; moreover, by compelling that the interpretation of the general laws always be oriented on the fundamental value of freedom of the press, the ruling seeks to ensure that it has enough room and to prevent it from being constricted except where absolutely necessary with respect to legal values of at least like standing. Of particular interest here is the objective-legal, institutional side of freedom of the press, it effect as value standard and interpretational principle for the general legal system.
4. The provisions dealing with treason (§§ 99, 100 of the Criminal Code) are «general laws» within the meaning of art. 5(2) Basic Law. There exists no reasonable doubt that they are constitutional. In particular, the occasionally expressed objections going to the insufficient specificity in the definition of the elements of the offense (art. 103(2) Basic Law) are unfounded. From the standpoint of constitutional interpretation as well, the provisions are not unconstitutional insofar as they cover the revelation of State secrets by publications in the press, so-called «treasonable publication».
The protection of the external security of the Federal Republic of Germany, which is intended by the criminal norms dealing with treason, comes into conflict with freedom of the press when the press publishes facts, objects or findings whose secrecy is in the interests of national defense. This conflict is generally unable to be resolved from the outset against freedom of the press with the argument that this freedom is necessarily dependent on the security of the Federal Republic of Germany and when this is breached, freedom of the press itself is also destined for ruin. Rather, what is meant by the security of the Federal Republic of Germany, which is to be protected and upheld, is not simply its organizational structure but also its basic order founded on liberty and democracy. It is inherent in this order that, while being conducted by the responsible governmental organs, activities of the State -- including military undertakings -- are answerable to the constant criticism or approval of the People.
From this perspective, the necessity of military secrecy in the interest of State security and freedom of the press are not mutually exclusive opposites. On the contrary, they are bound with one another by the higher objective of ensuring the security of the Federal Republic of Germany. Therefore, conflicts between the two State necessities must be resolved in light of this objective. In so doing, the significance of the published facts, etc. are to be taken into consideration both for the potential opponent and for the formation of political opinion on a case-by-case basis; the threats to the security of the nation that might arise from publication are to be balanced against the need to be informed of important events, including in the area of defense policy. In the interpretation of the above-mentioned criminal provisions, art. 5(1) Basic Law essentially exercises in this sense a restrictive influence.
The review of the judicially ordered search measures employing the described constitutional standards has led to the result that pursuant to § 15(3), third sentence, BVerfGG, a violation of art. 5(1), second sentence, Basic Law cannot be ascertained as regard the application of substantive criminal law.
One view holds that there was such a basic-rights violation; this is supported by the following grounds:
1. The influence exercised by freedom of the press on the criminal provisions in §§ 99, 100 of the Criminal Code requires that a distinction be made between the two forms of intentional betrayal of State secrets within the meaning of § 99(2) of the Criminal Code and at least that the public revelation of State secrets by the press be viewed under different aspects than a «common treason» by agents or spies. It is not possible to exclude from free, public discussion -- which forms a fundamental element of the State order in a democracy -- the military field simply because the decisions to be made here by the legislative and executive branches are an essential component of overall policy, particularly foreign policy, and are of decisive importance for the existence of the State, its internal structure and the day-to-day life of the individual citizen. Accordingly, the legitimate functions of the press include giving coverage to a government's basic defense concept, the combat power of the armed forces and the general effectiveness of the measures undertaken to establish defensive readiness, as well as possible deficiencies and the proper use of budgetary resources made available for military purposes, and informing the general public of these issues and of the facts required in order to evaluate these issues. It is, of course, self-evident that this does not include the publication of all details. The border between permissible revelation of military facts by the press and that punishable under §§ 99 and 100 of the Criminal Code takes a different course than with regard to common treason. This view also underlies the Federal Government's draft of an Eighth Criminal Law Amending Act; according to the reasoning accompanying the draft, the «offense by a publisher who, with the intention of informing the general public, encroaches the area of secrecy protected in the general interest is not comparable with treasonable espionage» (BR-Drucks. No. 264/66, p. 30). The draft seeks «to obtain a clear delineation between, on the one hand, spies and agents who betray State secrets to a foreign power directly or with reprehensible intentions and, on the other, an offender who, for instance, in furtherance of the political discussion discloses a State secret, e.g., as journalist operating pursuant to commendable motives» (id. at p. 15). Accordingly, intentional, public revelation of State secrets without treasonable intent is only to be punishable under the yet-to-be-defined, independent offense of «disclosure of State secrets», which is only subject to imprisonment.
The recognition of the special nature of treasonable publication as finds expression in the foregoing is, with respect to art. 5(1), second sentence, Basic Law, to be taken into consideration de lege lata in the interpretation of the undefined legal terms in § 99 of the Criminal Code in the case of press publications.
As a result, the interpretation of § 99(1) of the Criminal Code that has become known under the designation «mosaic theory» is not applicable to treasonable publication. Under this theory, State secrets are also said to have been betrayed when the systematic gathering and reliable classification of facts that in and of themselves are already known or generally accessible give rise to a precise, overall picture of an important complex of national defense, since it is asserted that this represents a new «finding», which is treated as a separate State secret (cf. BGHSt 15, 17). This interpretation was developed for treason conducted clandestinely by agents and may well be justified in this area -- the order by the Federal High Court dropping prosecution against Augstein and Ahlers expressly leaves aside this theory's applicability to press publications. Its application to treasonable publication would intolerably conscribe the press's sphere of functions: a typical press function is gathering information and then compiling it to form an overall picture of a certain event or complex, as well as analysing individual bits of information, relating these to one another, drawing conclusions from this and uncovering connections. So-called preliminary publications therefore essentially negate the objective definitional elements of the offense of treasonable publication. If this were not the case, then the necessity of informing the public of important issues of national defense and the public discussion of these would be decisively impaired.
Furthermore, the question of whether military facts are in need of secrecy (§ 99(1) of the Criminal Code), as well as the threat to the good of the Federal Republic (§ 99(2) of the Criminal Code), are unable to appraised solely according to the interest of the military leadership in secrecy. On the contrary, this interest, which is certainly quite important, must be balanced against the public's claim following from the principle of democracy to information and the discussion of the relevant facts; in so doing, one must also take into account the possible beneficial results of a publication. For instance, the uncovering of fundamental weaknesses in defense readiness may in the long term be more important than secrecy, despite the military detriment to the good of the Federal Republic that this might initially entail; the public's reaction normally will prompt the responsible State organs to initiate the required remedial measures. The legitimate interest in the public discussion of basic military problems will normally not presuppose the knowledge of details; on the other hand, such a discussion cannot be conducted without a minimum of facts necessary for understanding the relevant problem.
2. The article in the «Spiegel» contained a contribution to the publicly known conflict between two different defense concepts of military policy, particularly to the dispute on equipping the Bundeswehr with nuclear weapons vs. strengthening conventional arms. In this context, the article asserted that defense planning, defense organization and the armed forces' weaponry exhibited a number of deficiencies and concluded from this that the Bundeswehr displayed only contingent defense readiness. In applying the described interpretational principles, it must first be reviewed whether the revealed military facts were already under public discussion, i.e., whether they were, either alone or in connection with other publications, known or generally accessible. It must further be reviewed whether the essential thrust of the article might have been capable of negating a threat to the good of the Federal Republic under the described aspects and, if necessary, to what extent this might also cover the publication of the various military facts contained in the article, since the knowledge of these was indispensible for the evaluation of the criticized defense concept.
This review called for by art. 5(1), second sentence, Basic Law was not undertaken prior to issuing the search warrant. The investigating judge, who himself lacked expert knowledge, apparently affirmed the suspicion of an offense on the basis of the expert opinion by Superior Governmental Council Dr. W. from the Federal Ministry of Defense, which contained a detailed, reasoned treatment of the military facts revealed by the article. This treatment was, in turn, based on information obtained by Dr. W., who himself is not a military professional, from independently selected members of the Federal Ministry of Defense, which he then analysed from a legal perspective. In so doing, Dr. W. did not confine himself to answering the question of whether the article contained facts that, at the time of its publication, were secret and, moreover, in need of secrecy within the meaning of § 99(1) of the Criminal Code; rather, he also made a judgment as to the specific threat to the good of the Federal Republic as a result of publication (§ 99(2) of the Criminal Code). In this regard, he apparently assumed that the revelation of militarily relevant facts in press publications is not to be treated differently than common treason. He predominantly evaluated the need for secrecy and the specific threat to the Federal Republic from the standpoint of the Defense Department, i.e., whether -- to use the words of Dr. W. -- one were faced with a «breach of the area of secrecy of the Bundeswehr»; accordingly, he attributed substantial importance to formal secrecy. Following submission of the expert opinion, this narrow perspective was in all respects explicable, but even from military aspects, it was not the only possible one, since strategic and military-policy problems as well as the question of equipping and arming the armed forces are discussed in the entire Western world with complete openness, a fact on which the subsequently submitted expert opinion by Brigadier General Gerber is also based. The different basic approach taken by Dr. W. also explains the insufficient review of possible advance publications. He did not himself examine this issue but rather was satisfied with provisional information provided by the press officer in the Federal Ministry of Defense, who -- as was known to Dr. W. -- was only in possession of a small archive. In his opinion, this point was not of decisive relevance, since in applying the mosaic theory -- Dr. W. cited here the definition of the mosaic theory from BGHSt 15, 17 -- the article was in any event said to represent in its entirety a new, independent State secret.
In that the investigating judge based his assumption of suspicion of an offense solely on this expert opinion, whose methods and results were evidently not based on a constitutional interpretation of § 99 of the Criminal Code, it must be concluded that he likewise ignored the effect had by art. 5(1), second sentence, Basic Law on substantive criminal law. This result is also supported by the fact that the Federal Prosecutor's Office, which worked closely with the investigating judge with regard to the issuance of arrest and search warrant, proceeded from the same legal view as Dr. W. with respect to treasonable publication, particularly regarding the mosaic theory. Although as witness, Dr. W. explained that things that had become known by way of advance publication could no longer be designated as secret, he also responded to questioning that the advance publications were not very important, that the priority of such publications was not controlling. He said that «even in a thousand advance publications, this cannot have been depicted in such a summarized, explosive manner as in the "Spiegel"-article».
In addition, the orders of the Federal High Court confirming the search warrant at no point undertake in their review of the suspicion of intentional treason an evaluation satisfying art. 5(1), second sentence, Basic Law but rather adopt without exception the determination reached in the expert opinion. For instance, the Order of 22 November 1962 merely noted that the strong suspicion of treason was justified since «the expert from the Federal Ministry of Defense ... brought forth weighty reasons for the assumption that numerous locations in the attacked article reproduce facts whose public revelation threatens and to a particularly great extent impairs the good of the Federal Republic, namely, her defense readiness» (Part 1 of the Reasoning). «Experiences thus far in treason matters do not provide any reason for the Senate to doubt the substance of this expert opinion» (id.). Completely lacking is an analysis whether, taking into account the effects of art. 5(1), second sentence, Basic Law, this expert opinion was sufficient for establishing strong suspicion of intentional treason with respect to the objective and subjective elements of the offense. The balancing undertaken at other locations in the order between this constitutional provision and those of criminal law as regards the proportionality of the extent of the search measures assumes from the outset that strong suspicion of a crime exists within the meaning of § 100(1) of the Criminal Code (id., Part 2). The same applies to the Federal High Court's Order of 7 December 1962. The balancing of interests undertaken there primarily relates to the permissibility of interference pursuant to criminal procedure. The remark that when freedom of the press is understood correctly, secret facts of national defense may never be a target of the legitimate efforts of the press to assist in the public formation of opinion by publication might be able to be conceived of as a consideration of art. 5(1), second sentence, Basic Law in the application of substantive criminal law. But even assuming this to be the case, the balancing undertaken here remains altogether too general and reveals that the necessity of taking into account freedom of the press in applying the provisions dealing with treason was ignored in the instant case. In the same manner, the Order of 31 October 1963 assumes without further justification, in particular, without a critical discussion of the expert opinion from the standpoint of the constitutional provision, that in issuing the search warrant against Augstein, there was a strong suspicion of intentional treason (Part. I 2 of the Reasoning).
In accordance with the view supporting the decision under § 15(2), fourth sentence, BVerfGG, the foregoing comments do not appear sufficient for supporting the unconstitutionality of the search and seizure warrant and the order of the Federal High Court confirming it.
The first requirement for the ordering of a search is, of course, that there is suspicion of a criminal act; it must at least be conceivable that by way of the conduct of which he is accused, the suspect committed an offense punishable under substantive criminal law. Since, as explained above, treasonable publication falls under the definitional elements of §§ 99 and 100 of the Criminal Code and since the constitutionality of this provision is not subject to any doubt, the ordering of the search could only have been prohibited in the instant case for reasons of substantive criminal law when:
a) the suspicion of treason were only based on the application of the so-called mosaic or confirmation theory, and
b) the application of this theory to cases of treasonable publication were clearly unconstitutional.
Based on the material at his disposal, particularly, the expert opinion by Dr. W., the judge was able to assume at this stage of the proceedings that it was extremely likely that advance publications had not been made for the majority of the incriminating passages in the «Spiegel» article (24 of 41). This justified the suspicion that a large number of «original» State secrets had been revealed, i.e., such facts that did not first acquire the nature of a State secret following application of the mosaic theory. This indicates that the mosaic theory cannot have been of decisive importance for the judge's decision.
In view of these facts and circumstances, the -- highly controversial -- question of whether the application of this theory is opposed by constitutional reservations under art. 5 Basic Law is irrelevant.
Under these circumstances, the Constitution does not offer any basis for the objection that the investigating judge failed to infer any reasons from substantive criminal law for not issuing the search warrant.
The necessity of having to take into account freedom of the press and its significance for the basic democratic order in interpreting and applying general laws also goes for the rules of criminal procedure, particularly for such measures of constraint as searches and seizures undertaken as a result of a press publication or in relation thereto at a press company or by an involved member of the press.
These measures of constraint, the ordering of which is left to the discretion of the judge or some other responsible authority, normally constitute by their very nature a substantial interference with the affected individual's sphere of liberty protected by basic rights, above all, with the basic rights found in arts. 2 and 13 Basic Law. For this reason, their application is from the outset subject to the general legal principle of proportionality (Verhältnismäßigkeit) (BVerfGE 19, 342 [348-349]; BVerfGE 17, 108 ; BVerfGE 16, 194 ). Every interference must exhibit a reasonable relation to the severity of the criminal offense and the strength of the existing suspicion; further, this very measure of constraint must be necessary for investigating and prosecuting the criminal offense; this is not the case when other, less drastic measures are available. Finally, the search must be likely to produce appropriate evidence.
With regard to searches and seizures at press companies, also to be taken into account is the possible or likely interference with freedom of the press. This first relates to the hindering of the exercise of the basic right that might arise as a result of the search and seizure, e.g., by sealing important workrooms or by withholding material needed for day-to-day work; but to an even greater extent, these measures of constraint normally are accompanied by an impact on editorial secrecy. Since the confidential relationship between the press and its employees and informants forms a fundamental condition for the functioning of a press organ and since a threat to this confidential relationship is capable of extending beyond this given case and generating detrimental effects for other press organs and thus for freedom of the press as a whole, there necessarily arises here a conflict between the interest in criminal prosecution and the protection of freedom of the press, which must be resolved with the aid of the balancing of interests developed in the above-cited case law of the Federal Constitutional Court.
It is in essence the task of the legislature to undertake this balancing of interests. The rules of criminal procedure take this requirement into account only to a limited extent: the relevant provisions (§§ 53(1), No. 5, 97(5)) deal only with the case of a publication with criminal contents, resulting in the conceivable prosecution of the author, the contributor or the informant. They operate on the assumption of so-called guarantor's liability (Garantenhaftung), according to which an impediment to criminal prosecution is to be accepted in the interest of the confidential relationship between informant and press employee when at least one editor of the pertinent article is or can be punished for the publication. In so doing, the provisions of press law are to be taken into consideration, which hold that for press publications with criminal contents in periodicals, the «responsible editor» is subject to stiffer criminal responsibility, and, under some circumstances, also other members of the press involved in the production and distribution of the publication from the relevant periodical. If these requirements of guarantor's liability are fulfilled, then the responsible editor or other involved members of the press may claim both the right to refuse to give evidence (Zeugnisverweigerungsrecht) under § 53(1), No. 5, of the Rules of Criminal Procedure and -- in order to prevent this right from being obviated -- the prohibition of seizure with respect to these members of the press under § 97(5) of the Rules of Criminal Procedure, as well as the prohibition of search inferred from this by case law. According to the revised version of these provisions established by the Third Criminal Law Amending Act of 4 August 1953 (BGBl. I, p. 735), the prohibition of seizure applies only to the investigation of the person of the author, contributor or informant of the criminal publication, but not to all written correspondence between the members of the press relying on the right to refuse to give evidence and their informants or to writings by these members of the press based on correspondence entrusted to them.
Editorial secrecy is not protected when the investigation is directed against an informant providing information for a non-criminal publication, or in investigative proceedings against the responsible editor or some other member of the press as suspect. The affected member of the press may in this capacity refuse to give any evidence, but the search and seizure regarding him are not subject to any restriction, even when these measures relate to documents from which the name of the informant may be gained.
In the interim, all states have enacted new provisions in their state press laws, which, despite considerable differences, all increase the protection of editorial secrecy and in the process have departed from guarantor's liability and also to a certain extent separated the search and seizure prohibition from the right to refuse to give evidence. The question of whether these provisions fall within the competence of the state legislature does not require a decision here since, at the time of issuance of the search warrant controlling in the instant case, the only conceivable legal basis was the Rules of Criminal Procedure.
Since the described provisions of the Rules of Criminal Procedure at least in part give effect to the protection of editorial secrecy, they are as such compatible with art. 5(1), second sentence, Basic Law. These provisions do not contain an exhaustive regulation of the matter. They do not prevent a judge, in exercising his discretion as to whether and to what extent a search or seizure should be ordered, from taking more strongly into account the protection of editorial secrecy. In the absence of a new statutory regulation, it was therefore the task of the judge at the relevant time here to undertake the required balancing while taking into consideration the fundamental importance of the basic right of freedom of the press.
The hearing of the evidence has not confirmed the Complainant's original assertion that the search warrant was arbitrary because the proceedings against the «Spiegel» were initiated and profoundly influenced by the Federal Ministry of Defense on the basis of immaterial considerations and because the Federal Prosecutor's Office merely played the role of an assistance organ for the Federal Ministry of Defense. The contents of the article «Contingent Defense Readiness» in issue No. 41 of the news magazine became known to the section official at the Federal Prosecutor's Office; he submitted it to the responsible Federal Prosecutor Dr. K., who thereupon requested an expert opinion on it from the Federal Ministry of Defense as to whether the facts published in the article were military secrets. The responsible section head at the Federal Ministry of Defense then called upon the former Superior Governmental Council Dr. W., as one of the officials responsible for such cases, to prepare the expert opinion. Observing complete impartiality, he drew upon the assistance of the competent military officials and prepared the expert opinion together with them without participation by other offices; in conformity with general custom, it was written on offical Ministry stationery bearing the letterhead «The Federal Minister of Defense» and signed by Dr. W. with the words «by order of». There exists no reason to doubt the personal autonomy of Dr. W. Prior to submission of the expert opinion, a meeting of department officials was called by the former Federal Minister of Defense St. The Minister initially expressed doubt whether an expert opinion was at all necessary, but he then decided that the expert opinion should be expanded to cover the entire article. In so doing, he did not exercise any influence on the contents of the expert opinion yet to be drafted. Once completed, the expert opinion was only glanced at briefly by the State Secretary; the Minister was submitted a copy of the expert opinion after it had been sent out.
The former State Secretary at the Federal Ministry of Defense, H., attended on 20 October 1962 a meeting on the matter at the Federal Prosecutor's Office in Karlsruhe. He promised the Federal Prosecutor's Office the full -- in particular, the technical -- support of the Ministry; he emphasized that the Ministry was especially interested in resolving the «leaks» in its own house and that the investigation must therefore be conducted without regard for the rank of those possibly affected by it. He described at length that the Federal Republic of Germany had been put in a difficult situation in the eyes of its allies as a result of cases of this kind. Details as to how the proceedings against the «Spiegel» were to be structured further were not discussed; nor were the contents of the expert opinion by Dr. W. taken up. However, the comments by the State Secretary on the effects of the article on the alliance partners were viewed by the witness Dr. Wa. as a confirmation of the expert opinion; this led him to decide to take action immediately. In further meetings at the Federal Prosecutor's Office in the days following, details on how to proceed against the «Spiegel» were discussed. The Federal Prosecutor's Office was fully in charge of the action. Although the Federal Ministry of Defense continued to make known its interest in the course of the proceedings, the hearing of the evidence did not reveal any sort of attempt by the Ministry to influence the proceedings improperly. Following the hearing of the evidence, the Complainant dropped its contrary assertion as reproduced above.
The further review of the ordering of the search in application of the constitutional standards set forth supra under E has led to the result that pursuant to § 15(2), fourth sentence, BVerfGG, a violation of art. 5(1), second sentence, Basic Law cannot be determined with regard to the application of the Rules of Criminal Procedure.
In accordance with the view of the one side, such a basic-rights violation is supported by the following reasons:
1. The Complainant considers the search warrant to be unconstitutional simply because it violated the protection of editorial secrecy, which is a part of freedom of the press.
a) This attack would be founded if -- as asserted by the Complainant -- the search had exclusively or predominantly served the purpose of determining the informant(s) for the «Spiegel» article. On account of the association with the right to refuse to give evidence under § 53(1), No. 5, of the Rules of Criminal Procedure, the seizure prohibition of § 97(5) of the Rules of Criminal Procedure and the search prohibition derived from this do, of course, only take hold, in accordance with the general interpretation of this provision, in criminal proceedings in which the editor or the other members of the press listed there come under consideration as witnesses. However, it follows both from § 102 of the Rules of Criminal Procedure and from general legal principles that as well in investigative proceedings against suspected members of the press, searches on the basis of § 102 of the Rules of Criminal Procedure may only be ordered to clarify the offense with which they themselves have been charged, but not for the purpose of finding grounds for suspicion against as yet unknown third parties, in particular, against the informants. This would represent a manifest abuse of law and at the same time, when the subject is the investigation of informants of a press publication with criminal contents, a circumvention of § 97(5) of the Rules of Criminal Procedure. When investigative proceedings against suspected members of the press are only used as a pretext for investigating the informants, then the investigation is in reality directed against the clarification of the criminal offense committed by the informants; in this case, however, the seizure prohibition of § 97(5) of the Rules of Criminal Procedure would be fully applicable.
The Federal Government also considers the search of a press company impermissible when this is only for the purpose of investigating informants; this was undoubtedly the legal position on which the order of the Federal High Court of 7 December 1962 was based. If a search warrant were to infringe this, then such an infraction would be constitutionally relevant not merely as a violation of the principle of rule of law but also with respect to art. 5(1), second sentence, Basic Law, since the regulation set forth in §§ 53 and 97 of the Rules of Criminal Procedure contain, despite their imperfectness, a certain specification of the protection of editorial secrecy called for by art. 5(1), second sentence, Basic Law.
In the instant case, there are a number of not irrelevant indications for the fact that not only at the Federal Ministry of Defense but also at the Federal Prosecutor's Office, the primary objective was the determination of the informants of the «Spiegel» located at the Federal Ministry of Defense. During the session of the Bundestag on 8 November 1962, the former Federal Minister of Defense St. declared: «Especially in view of the awesome significance of these proceedings, it must be emphasized that the Ministry of Defense is not primarily interested in editors but rather in uncovering the porous locations in the Ministry» (Meetings of the Bundestag, 4th Electoral Period, vol. 51, p. 2019[B]). Similar comments were to be found in the «Spiegel» report by the Federal Government of 4 February 1963 (Bulletin of the Press and Information Office of the Federal Government, No. 23, p. 196, left column).
This objective was confirmed by the testimony of the witness Dr. Wa. With regard to the meeting of 20 October 1962 with the former State Secretary at the Federal Ministry of Defense, Dr. Wa. stated: «I discussed with [State Secretary H.] that the proceedings should not necessarily extend to the alone but rather that their main focus is actually the sources of information in his house.» «I thus made it clear that for us the emphasis was viewed as lying in the source of treason at the Federal Ministry of Defense and not in the announcement by the Spiegel.» It is thus irrelevant when, according to the testimony by the witness Dr. Wa., in addition a role was also played by the belief that a written document was located in the «Spiegel» offices that, beyond the objected-to article, contained secret material, a «secret document» from the Federal Ministry of Defense or an «exposition» or «dossier» of an officer of this Ministry that did not belong «in the hands of the » and that had to have been removed by him from the responsible authorities: Neither the petition by the Federal Prosecutor's Office nor the search warrant mentions the suspicion of espionage regarding State secrets under § 100(2) of the Rules of Criminal Procedure, a criminal offense whose objective and subjective definitional elements fundamentally differ from the criminal publication of State secrets under § 100(1) of the Rules of Criminal Procedure.
On the contrary, the search warrant merely notes as purpose for the search the «obtaining of evidence ... of significance for the investigation or subject to confiscation». Despite this wording, however, there continue to remain doubts, since the described version simply repeats the statutory regulation for the general prerequisites for a search (§ 102, last half-sentence, of the Rules of Criminal Procedure) and since the search warrant lacks altogether the specification called for alone for reasons of rule of law with respect both to the prosecuted criminal offense and the purpose and extent of the search (cf. infra H I). However, in this regard, one must also draw as supplement upon the actual treatment by the Federal High Court as complaint tribunal, which reached the result that the ordering of the search «at least simultaneously» served the purpose of clarifying the suspicion of treason existing against the suspects Ahlers and Augstein due to the «Spiegel» article, particularly with respect to the internal side of the offense (cf. the Order of 7 December 1962, Part II 3 of the Reasoning).
b) A search with this objective conformed with both the wording and the general interpretation of the above-mentioned provisions of the Rules of Criminal Procedure. One might therefore only inquire whether -- as is apparently asserted by the Complainant -- an interpretation of the Rules of Criminal Procedure filling in the gaps in the applicable regulation in light of art. 5(1), second sentence, Basic Law would have prohibited the ordering of the search in the instant case. From the standpoint of the protection of the confidential relationship between the press and its informants, the applicable regulation is in fact thoroughly unsatisfactory. In addition to other inconsistencies, this also relates to the basic association of seizure protection with the right to refuse to give evidence: It is obvious that a search aimed at investigating the internal elements of an offense regarding press contents necessarily endangers editorial secrecy, since precisely the very material dealing with the origin and basis of the publication, as well as how and from whom the suspect received the information possibly underlying the publication, is of interest for the clarification of the guilt of the suspected member of the press. Accordingly, the question of whether the in any event low degree of informant protection under § 97(5) of the Rules of Criminal Procedure can have any chance whatsoever is largely dependent on how the prosecutor structures the proceedings; this protection might be ruled out from the outset when the investigation is initially directed against the suspected member of the press, by whom a search and seizure is conducted. This dilemma, which is to be found here in practice, was pointed out by the Federal High Court with respect to the opinion submitted by the Federal Government in the oral hearing of 7 February 1964 regarding the various drafts on the amendment of the Rules of Criminal Procedure:
«The witness can very easily become the suspect; the prosecutor need only have sufficient indications for suspicion in order to trigger freedom of seizure. Strong or even adequate suspicion is not necessary. It is assumed that mere suspicion, i.e., a well-founded presumption (cf. § 102 of the Rules of Criminal Procedure), is sufficient. ... Not even investigative proceedings have to have been initiated; proceedings often begin first with the seizure action.»
The recognition of these shortcomings apparently led to the amendment of § 97 of the Rules of Criminal Procedure by the Third Criminal Law Amending Act, according to which the seizure prohibition is no longer to be dropped when the member of the press is suspected of participating in or abetting the prior offense by his informant. However, there still remains a considerable gap in the protection of informants, since the border between offender and participator, and between the possible evaluations of the offenses by informants and members of the press in relation to one another, tends to be even more fluid than that between witness and suspect.
Nevertheless, it is questionable whether these gaps should be filled in by inferring directly from art. 5(1), second sentence, Basic Law an independent, absolute prohibition of search and seizure in press offices when a violation of or threat to editorial secrecy is to be feared: It cannot be overlooked that such a prohibition would at once mean an extensive privileging of suspects who are members of the press (cf. the opinion by the Federal High Court, D II). Of course, this could be countered with the argument that in the interest of freedom of this press, this consequence may be tolerated with regard to offenses relating to press contents, since with publications with criminal contents, the objective elements of the offense are already present with the publication, such that there is no need for a search here, and since with respect to the subjective elements of the offense, the presumption of perpetration comes into play against the responsible editor under the provisions of press law. But still other legislative solutions are also conceivable, e.g., that even in these cases, searches and seizures are permissible under certain conditions but that at the same time a prohibition is set down in statute preventing any material found or seized during the search that reveals the name of the informant or the content of the information from being used against the informant in criminal proceedings.
A strong tendency can be seen in the above-mentioned state press laws and in the drafts regarding the amendment of the Rules of Criminal Procedure toward separating the search and seizure prohibition from the right to refuse to give evidence, even though the reach of this prohibition is regulated differently. Under the press laws of Berlin, Bremen, Hamburg, Hesse, Lower Saxony and the Saarland, the search of press offices -- i.e., of an editorial office, a publishing company or a printing company -- is absolutely impermissible when it is aimed at writings and documents for the purpose of investigating the informant or the contents of the information. The press laws of the Rhineland-Palatinate, Schleswig-Holstein and North Rhine-Westphalia permit the search when the member of the press comes under consideration as perpetrator or participator, but in contrast to the Rules of Criminal Procedure, they require strong suspicion of offense. Under § 23 of Baden-Württemberg's Press Act of 14 January 1964 (GBl., p. 11), there is an independent search and seizure prohibition for writings and documents in press offices, but the prohibition is dropped in certain specifically regulated cases, inter alia, when the information was procured with the commission of a serious criminal offense or when a certain type of crime or infraction is committed by the publication. The draft of an act to amend the Rules of Criminal Procedure submitted by the Bundesrat (BT-Drucks. IV/2147) and the proposed measures initiated by the Free Democratic Party (FDP) to amend the Rules of Criminal Procedure likewise provide for a prohibition of seizure in press offices that is separate from the right to refuse to give evidence, which, similar to the law in Baden-Württemberg, is nevertheless to be dropped when there is suspicion of a serious offense or illegal procurement of information (BT-Drucks. IV/1815); however, according to the FDP draft submitted in the current electoral period of the Bundestag, this restriction is, in turn, not to apply when the interest of the press in the secrecy of the informant outweighs in a given case the interest in criminal prosecution (BT-Drucks. V/62). On the other hand, the version proposed by the Federal Minister of Justice, which is based on the opinion delivered by the Federal Government regarding the draft submitted by the Bundesrat (BT-Drucks. IV/2147, Appendix 2), adheres in all respects to the connection of the seizure prohibition with the right to refuse to give evidence, and even the above-mentioned extension of the seizure prohibition by the Third Criminal Law Amending Act is once again to be deleted.
If a general prohibition of search against members of the press or in press offices pursuant to an offense regarding press contents is thus unable to be inferred directly from art. 5(1), second sentence, Basic Law, then the recognition of the shortcomings in this regulation of the Rules of Criminal Procedure in light of art. 5(1), second sentence, Basic Law must nevertheless lead to a restrictive application of these measures of constraint as regards press companies. In the interest of protecting editorial secrecy, which forms a fundamental prerequisite for the functioning of a free press, stiffer requirements are to be placed on the search of press companies for the purpose of investigating an offense regarding press contents; in particular, a search may not be resorted to when other possibilities are available for clarifying the subjective elements of the offense.
2. The court decisions attacked with the constitutional complaint fail to satisfy the democratic principle of proportionality and the required consideration of freedom of the press; they do not evidence a clear, comprehensive balancing of the circumstances of significance here. If the courts had satisfied this, then they would have refrained from ordering the search altogether or at least from one with such broad powers as in the search warrant as issued.
Whether, as asserted by the Complainant, the search warrant is in effect based on «carelessness» is not at issue here. The subject of the constitutional complaint is merely an objective -- but not a negligent -- violation of basic rights. For such a violation, of sole, direct importance are the decisions by the courts, since the constitutional complaint is only admissible to this extent. The considerations of the Federal Prosecutor's Office underlying the reasoning for its petition are not the direct subject of review; rather, these can only offer an important indication for the unwritten considerations of the investigating judge on account of the close, personal contact that the federal prosecutors entrusted with the matter had established with him in the instant case.
a) The search warrant ordered the search of «all business offices in Hamburg and Bonn and his [Augstein's] archives». For a press company of the Complainant's size and nature, such a broad search necessarily represents an extraordinarily grievous interference. The Complainant's main operations in Hamburg comprise a seven-story building with 117 offices, including 77 editorial and 18 archive offices. The archives are one of the largest press archives in the Federal Republic.
Since the objects that were to be searched were just as unspecified in the search warrant as the criminal offense whose investigation was to be served by the search, both the Federal Prosecutor's Office and the investigating judge were of the view that all written material in these offices and in the archives was to be inspected. To this end, the Federal Prosecutor's Office put to work 7 federal prosecutors and, at times, some 50 police officers. The decision on the seizure required the attention of three judges (cf. the press conference by the Federal Prosecutor's Office on 2 November 1962, in Bulletin of the Press and Information Office of the Federal Government, No. 205, p. 1740). The search warrant comprised the power to prohibit initially the use of all company equipment, even telephones and typewriters, and to remove the personnel from the offices to be searched, as is made clear by the approval of these measures by the prosecutors and judges in attendance. In its Order of 22 November 1962, the Federal High Court expressly confirmed in Part 4 of the Reasons the power of the investigating authorities to keep sealed the offices in which the search was being conducted or in which secured or seized material was stored and to deny the owners and employees of the Complainant access to these during this period. It was to be expected that such an expansive search would extend over several weeks and result in an obstruction to operations, which was able to make it uncertain whether the «Spiegel» would appear and pose a threat to the Complainant's existence. On the other hand, it cannot be objected that the «Spiegel» actually appeared without interruption despite the one-month-long search, since this was only made possible with the assistance of other publishing companies.
In addition to this effect that the search had on the Complainant's operations, consideration should also have been given to the consequences for the confidential relationship of the «Spiegel» and the members of the press working for the Complainant to their informants. This detrimental effect not only had a bearing here on the informants who might be suspected of being the source of or the accomplice to the crime likely committed by the article in question but rather on all informants, i.e., also those who provide information to the «Spiegel» without violating criminal provisions or official secrecy but who wish to remain unnamed for whatever reason. In particular, serious journalists are often supplied with specific data without the express purpose of publication but instead for their personal information in order to reveal to them the background or interrelationships of certain current events. It is obvious that the ordering of a search, as is at issue here, can lead to the drying up of such sources of information or at least a considerable number of them; this detrimental effect is not eliminated by the duty imposed on the officials taking part in the search to maintain official secrecy.
Such an interference not only affected the Complainant's free, journalistic activities but rather was unable to avoid having repercussions for the press as a whole in the Federal Republic and its employees; in particular, organs of the press might have seen themselves as restrained in discussing openly questions of national defense to the extent called for in the public interest.
b) On the other side, this grave interference was to be weighed against the interest in the prosecution of the suspect for the offense of treason with which he was charged: in so doing, consideration was to be given to the general significance of the legal value protected by the relevant criminal provisions, the threat to this legal value by the specific criminal offense, the intensity of suspicion, the necessity of the search and its expected results.
(1) Pursuant to an abstract balancing of interests, it is to be recognized from the outset that the legal values protected by the criminal provisions dealing with treason are deserving of protection, even as against freedom of the press (cf. supra C 4); this includes the necessity of taking action against violations of these legal values by way of criminal prosecution.
(2) Viewed specifically, the Federal Prosecutor's Office and the investigating judge were of the opinion that, from an objective standpoint, they were faced with a serious case of treason, since the author of the expert opinion had determined that the article contained numerous State secrets, the publication of which would to a great extent impair the Federal Republic's military readiness. Although the expert opinion reached the result that this did not involve an acute danger threatening the existence of the Federal Republic, it asserted that the Federal Republic's position in a possible defensive action had thereby been considerably weakened. It is, however, highly likely that the Cuban Missile Crisis, which first entered its critical phase following the appearance of the article, was not taken into account in the evaluation of the alleged treason.
Nevertheless, the assessment of the specific criminal offense by the Federal Prosecutor's Office and the investigating judge was not free of constitutional error. They failed to recognize that -- as explained above -- treasonable publication fundamentally differs from common treason and is therefore to be judged more mildly. If they would at least have excluded from their assessment the facts given advance publication and taken into account the inadequate, at best only provisional review of the advance publications, then the remaining alleged criminal offense would in any case have become less weighty.
(3) If there thus remained a limited suspicion of treason, then Augstein as well, against whom the search warrant attacked here was solely directed, could also have come under suspicion as perpetrator. Although he was not the responsible editor, his leading role in the setting of the «Spiegel»'s political objectives was common knowledge, particularly with regard to the critical treatment by the news magazine of the person and policies of the former Federal Minister of Defense. This suspicion was, however, not especially strong. It was based on the article and the evaluation of the latter by the author of the expert opinion, Dr. W. Apart from the deficiences set forth above (cf. supra D I 2), it should have been taken into account that this expert opinion's probative value was limited by the fact that it was expressly characterized by Dr. W. himself as a provisional expert opinion and that the assessment of the difficult question of whether the factual prerequisites had been met for the betrayal of State secrets pursuant to § 100(1) in conjunction with § 99 of the Criminal Code was left to the knowledge and experience of a single, young assistant.
Of even less weight was the suspicion regarding the internal elements of the offense. The subjective elements of § 100(1) in conjunction with § 99 of the Criminal Code require that the perpetrator act with direct or conditional intent in the revelation of State secrets; this intent must also extend to the specific threat to the good of the Federal Republic within the meaning of § 99(2) of the Criminal Code. Apart from the fact that the search warrant was only based on § 100(1) of the Criminal Code, a negligent publication of State secrets by Augstein and Ahlers would not have been punishable, since the prerequisites under § 100c(2) of the Criminal Code had not been fulfilled with respect to them. It would, however, thus have been difficult to imagine that intelligent, experienced journalists mindful of their professional reputation, such as Augstein and Ahlers, would have even implicitly accepted the risk that the military facts published in the article were State secrets and that their publication threatened the good of the Federal Republic; they would thereby have taken on the unavoidable danger of being punished as traitors. In this manner, the Federal High Court later ruled in its Order of 13 May 1965 «that with regard to ... treasonable publication, higher requirements are to be placed on proof of the internal aspects of the offense than with regard to spies and agents». The presumption that Ahlers received illegal information from the Federal Ministry of Defense is insufficient to establish a corresponding suspicion. In the first place, a journalist with expert military knowledge, such as Ahlers, who in addition was for a time Press Advisor at the Federal Government's Office of the Security Commissioner, knows that not everything treated as secret -- for perhaps good reason -- in the area of the Bundeswehr is indeed a State secret within the meaning of the Criminal Code. Furthermore, taking into account the function of the press and the way it performs its work, experience has shown that when such a journalist recognizes that information is intended to be kept secret, he only makes use of its in such a manner that, in his opinion, does not fall under criminal law, in particular, by attempting to strip the information of its need for secrecy by mitigating or generalizing it. In accordance with a proper assessment of treasonable publication in light of art. 5(1), second sentence, Basic Law, the suspicion that Ahlers had committed intentional treason within the meaning of § 100(1) of the Criminal Code was therefore on weak footing from the outset. This was even more so the case with Augstein, whose controlling position in the company simply did not permit the compelling conclusion that he was aware in detail of the material collected and published by Ahlers and had properly assessed its secret character.
This unlikelihood regarding the internal elements of the offense and, accordingly, the low degree of suspicion in and of itself are also unable to be ignored in light of the argument that the search sought to investigate precisely these internal elements; a search of the scope ordered here is in all respects inconsistent with the goal of resolving highly unlikely elements of an offense. This is not changed by the fact that the search might also have uncovered evidence clearing the suspects.
The suspicion of bribery is not supported by any sufficient, factual indications. Although general experience, on which the Federal Prosecutor's Office bases this allegation, does not make the suspicion seem altogether arbitrary, it nevertheless does not suffice for justifying such serious action against a press company. The same applies to the suspicion of other punishable actions, such as incitement to treason and espionage regarding State secrets, which are moreover not listed in either the search warrant or in the arrest warrant.
(4) In reviewing the necessity and expected results of the search, it had to be assumed that the external elements of the offense were fulfilled with publication. A search was unnecessary for determining whether the attacked article objectively met the definitional elements of § 100(1) in conjunction with § 99(1) and (2) of the Criminal Code. Even though the search brought to light documents designated as secret, these were unable to serve as evidence for the secret character of the published facts, since this does not depend on the view of the authority in possession of the secret but rather on the objective appraisal. The search could not have turned up anything at all of relevance for the decision whether the article had endangered the good of the Federal Republic.
Therefore, the search could only be justified with regard to clarification of the internal aspects of the offense. It is, however, extremely unlikely that when experienced journalists recognize or accept the risk that a press article will publish facts intended to be kept secret, they will store notes or documents that can establish their guilt in their offices or have them registered in the company's archives. Experience also indicates that the suspects in such cases will destroy or at least conceal the materials that might incriminate them and their sources, let alone those establishing their guilt.
Above and beyond this, the search was not the sole means for clarifying the internal aspects of the offense. To this end, the most obvious methods were the interrogation of the suspects and, in particular, investigations in the Federal Ministry of Defense, especially since this could only involve a relatively limited circle of persons party to the secrets. Instead of first initiating investigative proceedings against persons unknown, the investigative authorities immediately attempted to determine the informants by way of a search of the «Spiegel». From the standpoint of the Federal Prosecutor's Office, this was certainly the easiest way to investigate the informants, but it was surely not the only possible one as long as investigations at the Federal Ministry of Defense had not been attempted or proved unsuccessful. For the balancing of interests in light of art. 5(1), second sentence, Basic Law, this is of relevance for the simple reason that with regard to the publication of State secrets by the press in times of peace, the betrayal of secrets to the press by the person originally in possession of these is normally of greater weight than the criminal offense by members of the press perhaps made possible by this. In such a case, it basically must be expected that the State first bring its own house into order, i.e., that it investigate the leak within the administration with suitable measures and then repair it with the aid of criminal or disciplinary prosecution of the guilty soldiers or officials.
c) The attacked decisions do not reveal that the significance of all of the listed circumstances were assessed and balanced against each other in their entirety.
The hearing of the evidence has shown that the Federal Prosecutor's Office considered an abstract balancing of the legal value protected by the criminal provision against the basic right of freedom of the press to be sufficient. In addition, in the determination of suspicion of the offense, the lack of consideration given to the constitutional provision was of decisive importance in the application of the criminal provision. With respect to the severity of the interference, allowance was only made for the possible effects that the search might have on the Complainant's day-to-day operations. The Federal Prosecutor's Office also took the incorrect position that in proceedings against a suspect who is a member of the press, a search was by all means permissible. These considerations were apparently joined in by the investigating judge.
The balancing undertaken by the Federal High Court in its Order of 22 November 1962 with respect to the principle of proportionality initially suffers from the basic flaw that it is based on the state of the investigations at the time the order on the complaint was issued and uses results that were first obtained in the search. The balancing as to whether the basic right of freedom of the press was violated, while generally upholding this basic right with reference to the case law of the Federal Constitutional Court, misreads the interpretational principles developed there for the interpretation of art. 5(2), first half-sentence, Basic Law by viewing the decisive criterion as being the requirement that the investigative measures not infringe «the core of the basic right». As set forth above (supra C 3), the interpretation and application of the general laws must leave room for the full effective force of the basic right. Departing from this incorrect position, the Order is satisfied with a general, abstract balancing of the legal values coming under consideration and holds that priority is generally to be given to the interest in prosecution of a suspicion of intentional treason. While based on a correct appraisal of the basic right of freedom of the press and the interplay between this right and the general laws, the supplementary Order of the Federal High Court of 7 December 1962 nevertheless also only undertakes the balancing of interests in an abstract fashion; the special qualities of the instant case are not included within the circle of the Court's deliberations, at least not in their entirety. The severity of the alleged treason and the necessity and expected results of the search are justified by the Order with general remarks, which do not evidence that the Court recognized in full the constitutional problematic. In addition, the further Order on the complaint of 31 October 1963, which again confirmed the lawfulness and validity of the search warrant, simply assumes that suspicion is founded and expressly leaves it aside as to how strong suspicion must be in a given case.
3. It may be stated in summary that with the ordering of the search, the balancing of interests called for by the principle of proportionality and by the decision as to values made in art. 5(1), second sentence, Basic Law was left out of consideration. An application of law taking into account these requirements should have led in the instant case to the result that such a broad search represented an interference that was not proportional.
The severity of the offense of treason and the potential threat to State security by way of the betrayal of State secrets cannot alone suffice for putting the protection of freedom of the press into the background and justifying all types of procedural measures of constraint. This would ignore the press's function for the democratic State order and would place treasonable publication on the same level as common treason. Moreover, it failed to be recognized that the issue here was not leaving unpunished press publications with criminal contents or granting them a general privilege with respect to criminal prosecution; rather, the sole issue was whether the use of a certain tool of criminal procedure was consistent with the circumstances of the given case. Of course, even in accordance with the position taken here, freedom of the press may not be taken as a cloak for serious criminal offenses against the security of the State. But in the instant case, one was not faced with a proven violation of a supreme legal value protected by the treason provisions; rather, it was first to be investigated whether and to what extent such a violation existed. If at this stage of the proceedings, to which applies the presumption of innocence under Art. 6(2) of the European Convention on Human Rights, the mere fact that treason was made the subject of the investigtion should suffice for discarding the mandated balancing of interests or for subjecting it to milder requirements, then free public discussion would be unjustifiably constricted in an important area of public life.
For this very reason, the reference to the obligation to inform the authorities of a crime (Anzeigepflicht) under § 138 of the Criminal Code cannot have any impact, apart from the fact that even the limited protection of editorial secrecy under the Rules of Criminal Procedure does not recognize a classification as to the type of the offense. Furthermore, this criminal provision seeks to prevent the perpetration of a capital crime that has not yet been committed; it cannot be gleaned from this provision that it relates to an offense dealing with press contents.
With the sole exception of the Baden-Württemberg Press Act, the press laws of all other states accord journalists and other members of the press a right to refuse to give evidence that is independent of the nature and punishability of the prosecuted offense. This sort of regulation has existed in Bavaria for 17 years without any discord. In addition, a comparison with the legal systems of other democratic States cannot provide any convincing arguments against the position taken here when it is solely limited to whether a certain statutory regulation exists and when it neither assesses the pertinent legal system in its entirety (for instance, in England or under US federal law, a statutory right to refuse to give evidence is not provided to any profession whatsoever) nor takes into consideration the legal practice and democratic awareness of the pertinent society.
The significance of freedom of the press demands that the application of measures of constraint with regard to criminal prosecution be subjected to strict requirements and at the same time justifies a broad review by the Federal Constitutional Court of the specific manner in which the proceedings were conducted. Furthermore, considerations regarding effective administration of the proceedings, which in and of themselves are of considerable importance, must give way to the extent called for by the protection of this basic right, and procedural inconveniences must also be tolerated (cf. BVerfGE 17, 108 ). The degree to which a national emergency rule would require a different result in the event of a defensive military action or some similar crisis is not under discussion here.
In accordance with the view supporting the decision under § 15(2), fourth sentence, BVerfGG, the ordering of the search is constitutional.
1. The investigating judge had been given the petition by the Federal Prosecutor's Office, the «Spiegel» article and the expert opinion by Dr. W.; moreover, the problematic of the case was orally introduced to him by Federal Prosecutor Dr. Wa. The Complainant asserts that the foregoing could not have resulted in a suspicion justifying the measures of constraint. It refers to the «obvious untenability of the opinion by the Federal Ministry of Defense initiating the proceedings», to the «careless» proceedings -- i.e., conducted in a manner violating the objective requirements of the duty to exercise due care -- by the Federal Prosecutor's Office, whose petitions were «blindly» accepted by the investigating judge. The attack raised in the constitutional complaint and maintained up until the conclusion of the hearing of the evidence can be summarized as follows: the original initiative for the action against the «Spiegel» stemmed from the Federal Ministry of Defense, whose motives were unrelated to the matter. Furthermore, suspicion is alleged to have not been present but rather merely presumed; it is said to have been based on manifestly untenable assumptions; it is advanced that the Federal Prosecutor's Office did not review the material sufficiently but instead accepted it unseen, thereupon using it as the basis for democratically unjustifiable petitions, which the investigating judge integrated into his judicial order without critical review or amendment.
The hearing of the evidence did not confirm this position of the Complainant. The possible participation by the Federal Ministry of Defense in the introduction of the proceedings has already been dealt with above. But is also not possible to ascertain any violations of the Constitution on the part of the Federal Prosecutor's Office and the investigating judge.
The Federal Prosecutor's Office was not obligated to request an expert opinion. But in order to establish a secure foundation for its proceedings, it nevertheless decided to obtain expert advice to make certain that the suspicion raised by the «Spiegel»-article was justified. It cannot be seen that it could have found elsewhere than in the Federal Ministry of Defense the military expertise, together with the sound judgment honed by practical experience, called for in evaluating such publications from the standpoint both of military intelligence and of the law.
The author of the expert opinion, Dr. W., was not called upon solely for these proceedings; rather, he was the official generally entrusted with such matters. In accordance with the organizational scheme, he enlisted the aid of the competent military experts, drafted together with them the expert opinion and then had the results of the work reviewed by further military experts, including the head of the Bundeswehr's Intelligence Service. Dr. W.'s objective independence was ensured to the greatest extent possible. Even in the formal sense, an «independent» expert -- i.e., one not subject to the Minister's command -- would have been impossible to find among the circle of specialists coming under consideration here.
The hearing of the evidence gave rise to the impression that Dr. W. had performed his work carefully, which moreover was also recognized by the Complainant in the concluding evaluation of the hearing of the evidence. In particular, it cannot be asserted that he failed to understand the significance of possible advance publications; as early as at the start of his work, he pointed out in a letter to the Ministry's press officer that it was «decisive whether and to what extent the pertinent topics were already the subject of public discussion» and accordingly asked to be informed of any advance publications. Exaggerated requirements may not be placed ex post on the expert opinion. It was not intended to form the basis for a conviction for treason; it also would not have sufficed for lodging an indictment. It was merely designed to enable the Federal Prosecutor's Office to decide whether the suspicion of treason was in all respects untenable or whether additional investigative measures should be initiated. Dr. W. correctly termed his work a «Provisional Expert Opinion», since it was only to focus on matters of importance to the Federal Prosecutor's Office for making its judgment and postpone for the time being the detailed treatment of various points.
The Federal Prosecutor's Office did not follow «blindly» the expert opinion by Dr. W. but rather reviewed it independently and then discussed it with him. Likewise, the investigating judge evaluated the expert opinion himself. It is in this context that the Federal Prosecutor's Office and the investigating judge are accused of also having operated under the incorrect legal view that «advance publication is not of vital importance»; however, it must be replied to this accusation that Federal Prosecutor Dr. Wa. should not be misunderstood as having sought to minimize the significance of advance publications for the secret character of information. On the contrary, he first stressed: «If in fact things had already become known through advance publication, then in my view they would no longer have been able to be termed secrets in the expert opinion.» Later, he pointed out that, in accordance with the crux of the matter, it was not the pure priority of the publications that was decisive but rather that it must always be examined exactly what has already been published -- and in what form -- in order to rule out the secret character of subsequent publications.
When the Complainant continues to characterize these proceedings as «careless», then this constitutes an exaggeration of the requirements of rule of law. At issue was the clarification of whether a suspicion was to be investigated further. In deciding on this, one cannot demand the «certainty» sufficient for conviction or acquittal. If a search in press offices is not to be barred absolutely, then one cannot make that which is first to be clarified by the search a prerequisite to its being ordered.
The press does not enjoy any privileges in criminal proceedings; it must submit to the investigative measures of the criminal prosecution organs just like every citizen whose conduct raises the serious suspicion of a criminal act. The correlate to freedom of the press is a press working with full awareness of its responsibility (BVerfGE 12, 113 ). In particular, in a free, democratic State, freedom of the press is balanced by its co-responsibility for State security. The individual press organs undoubtedly set diverse objectives and pursue these with diverse means and journalistic methods. But in any event, it is not possible to acknowledge a «presumption» in favor of an organ of the press that it worked in full awareness of its responsibility and is therefore from the outset beyond all suspicion of criminal conduct.
2. The Federal Prosecutor's Office and the investigating judge had to decide whether the measure that, by the very nature of the matter, came under consideration for the clarification of the circumstances of the case -- the search of the Complainant's business offices for the purpose of discovering evidence -- was permissible.
Measures for the preservation of evidence, such as search and seizure, by their very nature represent a serious interference with the citizen's basic rights. But since they are indispensible under certain circumstances to effective criminal prosecution, then even an innocent person who comes under suspicion must also tolerate them to a certain extent. When these measures are taken against an organ of the press, then an unavoidable conflict arises with the basic right of freedom of the press, which compels marked caution as well as a careful balancing of the aspects arguing both for and against the admissibility of the procedural measures. Resulting from all of the foregoing is the democratic postulate of the proportionality of the measures in the given case. That which must be balanced against the requirements of freedom of the press has already been set forth above in detail: the general rank of the legal value, for whose safeguarding the measures of constraint are to be taken; the threat posed to it by the specific offense forming the subject of the investigation; the intensity of the suspicion; and the suitability and necessity of the procedural method envisaged.
It has already been said that -- in the Complainant's opinion as well -- the press is not exempt in every case from the application of the norms of criminal procedure regarding search and seizure. What is necessary is an objective balancing of values in the given case, not a respecting of an undisputed privilege of «the press» due to its «public function», and so forth.
The suitability of the method does not require greater justification in the instant case. It was to be assumed that in all likelihood «the search [of the company offices of the ] will lead to the discovery of evidence» (§ 102 of the Rules of Criminal Procedure). Notes relating to published (or, in some cases, yet-to-be-published) news material, which with certainty were presumed to be in the editorial offices, would be able to shed light not only on the secret character of various data, such as on the type of cooperation with informants from the Federal Ministry of Defense, but even more so on the subjective aspects of the suspicion of treason regarding members of the «Spiegel's» editorial staff. The federal prosecutors chiefly involved in the proceedings, Dr. Wa. and Dr. K., were convinced that a «dossier» or «exposé» was definitely located somewhere in the editorial offices, and when secured, this would make a decisive contribution to the speedy, complete clarification of the entire case and its connections.
In reviewing the necessity of the measure, it had to be assumed that the work of the press is to be kept free of every interference by public authority that is not absolutely essential; in particular, this was the position of the Federal Prosecutor's Office, which specifically emphasized this view to the investigating judge and made it the general directive for its enforcement officials in the meeting of 22 October 1962. On the other hand, it also had to be considered that serious suspicion of a criminal act against the security of the State was involved, i.e., that the threat to a legal value was in question whose significance is at least not secondary to freedom of the press. Of sole importance was the balancing of whether the suspicion was so weighty, the criminal offense at issue, so threatening and the public interest in full clarification of the case, so considerable that a restriction on freedom of the press -- which would not exactly endanger the existence and continued appearance of the magazine -- could be tolerated. Both the Federal Prosecutor's Office and the investigating judge decided that such was the case; their decision does not indicate that they left aside the required balancing or that they essentially misinterpreted the value standards of the Constitution. When the press enters the area of specific, technical issues of the military, the balance shifts: the public's need for information diminishes in importance, because in the first place, readers are unable in any case to form their own opinion due to their lack of sufficient expert knowledge and, in addition, they also do not require such knowledge for the formation of their political opinions. On the other hand, however, the published information, which is relatively unimportant for the domestic public, may well be of value for the professionally skilled, foreign intelligence service. For this reason, the press must also balance the need for information with State security prior to such publications. It cannot avoid this duty by relying on «freedom of the press».
Treason has the potential for threatening the existence of the State and basically justifies a sharp reaction by public authority. Arts. 21(2) and 91 Basic Law show that in the event of a threat to the existence of the Federal Republic of Germany, uncompromising intervention is also called for by the Constitution. Seen in the light of the political situation existing at that time (the «Cuban Missile Crisis»), the gravity of the publication was in concreto particularly intense; the trustworthiness of the Federal Republic of Germany within the Atlantic alliance appeared to be in jeopardy. If, as can be inferred from the article, one also takes into account that criminally punishable cooperation by supreme Bundeswehr commanders must in all likelihood be presumed, it cannot be denied that there is an urgent, public interest in the prompt, complete clarification of the entire circumstances of the case. The Federal Prosecutor's Office and the investigating judge could assume that full clarification was only possible through the discovery of patent documentary evidence, which they expected from the search of the company offices. The value of such evidence was highly superior to that of witness testimony. Only in this manner could precise insight be gained on the documents that had been used in the article, on their quality as State secrets (an important indication for which could be possible formal classification as secret), on further secret material intended for publication that might be present, and foremost on how the documents came into the possession of the «Spiegel» and thus on the fulfillment of the subjective elements of the offense of treason with regard to the responsible «Spiegel» figures and the extent of their possible participation in criminal acts by informants from the Federal Ministry of Defense. All of the foregoing simply could not be expected from interrogations, which in addition would necessarily first have to focus on narrowing down the circle of suspects. But an even greater drawback is that the first interrogation would warn all involved parties, such that a later search would no longer be able to turn up incriminating material.
3. The Complainant is not justified in its objection that with respect to the protection of press informants, which is derived from freedom of the press, the search of the company offices was impermissible and unconstitutional.
There is no doubt that the basic right of freedom of the press gives rise to a certain protection of editorial secrecy and press informants. But in structuring this protection, the legislature has a broad margin of discretion. There is no constitutional requirement of informant protection with a specific definition. The Rules of Criminal Procedure afford editors, etc. with a right to refuse to give evidence regarding the person of their informants (§ 53(1), No. 5) and provide for a corresponding seizure prohibition in order to prevent circumvention (§ 97(5)). It brings the protection of editorial secrecy into line with the so-called guarantor's liability; only in instances in which the punishment of the author or informant for an offense regarding press contents can be overlooked because an editor is available for punishment are editors, publishers, etc. to have the right to refuse to give evidence and have protection against seizure. The right to refuse to give evidence and protection against seizure are only able to be claimed by those who are able to be a witness in specific criminal proceedings; if the investigation is being conducted against the editor, etc. himself, then he does not come under consideration as witness and therefore also does not enjoy protection against seizure.
In the instant case, an investigation was conducted against Ahlers and Augstein on the charge of treason -- against Ahlers as author and against Augstein because he was allegedly aware of the article before it went to press and thus sanctioned the publication. The suspicion followed the structure of the case and was aimed directly at leading members of the editorial staff themselves; they were not regarded as guarantors for a «true» perpetrator situated outside the editorial staff but rather, in accordance with the structure of the case, themselves came under consideration as the perpetrators who -- working together with informants in a manner yet to be clarified -- had committed the punishable offense of treason. There is nothing to indicate that the proceedings against the members of the editorial staff were merely initiated as a pretense for disposing of the procedural barrier in the form of the seizure prohibition in the investigation of the informants. The understandably overriding interest at the Federal Ministry of Defense in uncovering the leaks in its own house may not be taken as an indication that the actual objective of the Federal Prosecutor's Office likewise was not the clarification of criminal acts by editorial members of the «Spiegel» but rather the elimination of the editorial staff's informants. As members of the editorial staff, Ahlers and Augstein had custody of the presumed evidence; particularly Augstein's custody extended to cover all of the company's offices. Neither of them thus had a right to refuse to give evidence; although as suspects they did not have to respond to questioning (§ 136 of the Rules of Criminal Procedure), they were unable to serve as witnesses in these proceedings, not even against each other. With the loss of the right to refuse to give evidence, the protection against seizure also became inapplicable; even when a suspect and a non-suspect have joint custody of an object, the seizure prohibition does not apply (Order of the Federal High Court of 4 August 1964, Part III).
In all other respects, search and seizure is only impermissible when it exclusively or predominantly serves the purpose of investigating the person of the informant. As was described by Federal Prosecutor Dr. Wa., it was the intention of the Federal Prosecutor's Office that the search principally serve the purpose of looking for written evidence of treason, above all, the presumed «dossier» or «expose», which was expected to shed light on the documents used to write the article. The Federal High Court also determined (Order of 4 August 1964, Part I 1) that «with regard to the first action, evidence supporting the suspicion of treason was supposed to be, and in fact had been, at least predominantly searched for». Nevertheless, the search was unable to turn up the correspondence with the informants and thus their names; but it was not the purpose of the search within the meaning of § 97 of the Rules of Criminal Procedure to investigate them. Consequently, § 97(5) of the Rules of Criminal Procedure did not oppose the search and seizure.
However, the question arises as to whether it may be directly inferred from the principle of freedom of the press that editorial offices are subject to a type of «absolute» protection against seizure with regard to such written documents that reveal informants or at least allow conclusions to be drawn as to their person. This raises the concept of an interpretation of § 97(5) (in conjunction with § 53(1), No. 5) of the Rules of Criminal Procedure «in conformity with the Constitution» (verfassungskonforme Auslegung). This has the result here of viewing the literal interpretation of this provision as unconstitutional and only accepting as conforming to the Constitution an interpretation that would, despite the wording, still continue to apply the provision (if not altogether general and unrestricted to search and seizure in editorial offices, then at least in this regard) when the editor is being investigated as the suspect of an offense regarding press contents, i.e., when he is not merely liable as guarantor. However, such an extension of this law can no longer be termed an interpretation in conformity with the Constitution; it would conflict with both the wording of the law and the will of the legislature (cf. BVerfGE 18, 97; BVerfGE 9, 194; BVerfGE 8, 28). It is probably correct to assume that §§ 53(1), No. 5, and 97(5) of the Rules of Criminal Procedure, while not unconstitutional as such (i.e., as literally understood and to the extent of applicability resulting from this), are countered by a right of the press, directly inferable from art. 5(1), second sentence, Basic Law, to the safeguarding of its editorial secrecy, whose scope and contents could be so clearly delineated that the judge could apply this right directly.
Nevertheless, this position cannot be accepted -- even when one views the current protection of editorial secrecy by the Rules of Criminal Procedure to be insufficient from the standpoint of freedom of the press. The Federal Constitutional Court can declare law that does not conform to the Constitution to be null and void. On the other hand, however, it cannot itself make new law by deciding on a given case before it as if this law were already applicable; although this might initially give full realization to the requirements of the Constitution, such a law would lack clearly defined contents, i.e., it would require detailed specification by the legislature. This would mean a preemption of the legislature's freedom in structuring laws. The Federal Constitutional Court can at best hold that the legislature failed to fulfill its duty to create such law.
It may be left aside in the decision in the instant case exactly how far an interpretation of §§ 53(1), No. 5, and 97(5) of the Rules of Criminal Procedure can extend. It no event is it possible to infer from art. 5(1), second sentence, Basic Law a right of the press to the secrecy of its informants in those cases in which, as here, a crime of intentional treason is the subject of the investigation and editors come under consideration as perpetrators and informants, as participators in this crime. Whether, with respect to its constitutional obligation to protect to existence of the State and its democratic order, the legislature could also introduce protection against seizure in these cases does not have to be decided. The judge may only determine that it does not follow from the Basic Law and the current general understanding of freedom of the press that, even with those working directly in this area of public life, the press is so widely exempted from generally applicable law. With regard to criminal actions against the security of the State, the basic right of freedom of the press necessarily comes into conflict with the at least equally important constitutional principle of the unconditional duty on all State organs, institutions and citizens to maintain the existence and security of the State and its democratic order. There are many reasons why the requirements of State security are deserving of priority here. In any event, the judge who assumes this to be the case cannot be accused of violating the Constitution. In support of his view, he could list the following arguments:
a) The position of the legal values protected by § 138 of the Criminal Code, to which also belongs the security of the State, was given such high rank by the democratic legislature in 1953 that even the plan to commit a criminal action against this security was subject to the obligation to inform the authorities, with failure to do so being punishable with severe penalty. It follows from § 139 of the Criminal Code that editors, etc. are also not exempted from this obligation to inform. In other words, an editor must notify the authorities when a person offering information in his possession to the editor clearly commits treason with the information. This would conflict with the assumption that such informants were also protected against criminal prosecution by the seizure prohibition.
b) The predominant opinion in practice, as finds expression in the press laws of several states, in the proposal by the Bundesrat, in the proposal by the Federal Minister of Justice for a revision of § 53 b of the Rules of Criminal Procedure and in the above-mentioned opinion by the Federal High Court of 7 February 1964, is at least that the protection of editorial secrecy be dropped with regard to treason.
The Criminal Law Committee of the Federal Lawyers Association also holds this to be the case. In the Principles it published on Dec. 6-7, 1963 (ArchPR, No. 60/1964, p. 472), it is noted at No. 9: «Evidence may not be refused to be given when the subject of the investigation is one of the crimes listed in § 138 of the Criminal Code.» Furthermore, according to Principle No. 8, the right to refuse to give evidence is also to be inapplicable when, on the basis of certain facts, there is strong suspicion that the information underlying the publication was obtained by a crime or infraction or procured by others.
At the meeting of the Society for Comparison of Law in Kiel on 9 September 1965, the topic «The Problem of a Special Status of the Press in Criminal Proceedings» was treated from the standpoint of comparison of law. The German and Swiss speakers reached the result that the right to refuse to give evidence should become inapplicable when the information was obtained by a punishable act or when the subject of the prosection is (political) offenses exhaustively listed by law.
This corresponds to the regulation in other democratic States. For instance, under Art. 27(6) of the Swiss Criminal Code, an editor does not have the right to refuse to provide the name of the author, inter alia, in cases of high treason and treason. In this regard, Max Nef («Ausgewählte Kapitel aus dem Schweizerischen Pressrecht», 1958, p. 98) noted: «Even in press circles, it was and is never seriously disputed by any side that here as well ... the higher interests of the State and the general public take precedence to the democratic rights of the press.»
c) It can hardly be in the sense of the Basic Law that the great, liberal achievement in the form of freedom of the press, which is supposed to serve in objectifying politics by free, public discussion among citizens, is able to be misused to prevent the solving of serious offense against the security of the State and its democratic order. Such broad views of the freedom of the press would also have negative effects on the trustworthiness of the Federal Republic within an integrated alliance like NATO, whose other members would consider a much more intensive protection of military secrets to be self-evident, even though their legal systems are based on the same, humanistic tradition.
d) The provisions on protection of informants and editorial secrecy do not serve to protect the informant or even the editor but rather aid in the functioning of a free press. They are to facilitate its fulfillment of its public function. A public function of the press can, however, only exist within the limits of the constitutional order and State good. Beyond this area, the recognition of protection of informants would lead to a pure privileging of the press. It does not follow from the Constitution that informants and editors are to be able to rely on the fact that by virtue of editorial secrecy, they are also in effect protected against criminal prosecution even in cases of serious infringements of the public good.
4. In summary, the circumstances of the case can be represented as follows:
The Complainant was principally interested in these proceedings in proving that the «Spiegel» article did not in essence give rise to any serious suspicion of betrayal of State secrets, but that the Federal Ministry of Defense brought to bear its influence in the form of proceedings against the magazine and that the Federal Prosecutor's Office and investigating judge willfully bowed to this influence without conducting their own, careful review. This proof has not been submitted. The fact that the article could awaken suspicion was not even contested by the Complainant itself. The question of whether this suspicion was strong enough to conduct the measures held by the Federal Prosecutor's Office to be necessary is, of course, looked at differently by the Complainant and the criminal prosecution authorities. The Federal Prosecutor's Office can at least offer in support of its position that it falls under the principle of lawfulness, which is an expression of the principle that all are equal before the law, that the protection of the State constitutes a constitutional precept of superior rank, to which under circumstances -- and in the wording of the Constitution -- basic rights protection must give way, and finally that there was a considerable public interest in the full clarification of the suspicion against a reknown organ of public opinion. In balancing all aspects of importance for the constitutional evaluation, it cannot be determined that the public authorities proceeded here in an unconstitutional manner.
The constitutional complaint further asserts that the contents of the search warrant fail to satisfy the requirements of rule of law and therefore violate the Complainant's basic rights interferred with by the search warrant. However, pursuant to § 15(3), third sentence, BVerfGG, such a basic rights violation cannot be ascertained.
According to the Complainant, a constitutional violation is supported for the following reasons:
Subject of the constitutional complaint can, however, only be the question of rule of law; whether the investigating judge also respected the provisions of §§ 102 to 110 of the Rules of Criminal Procedure, which belong to simple law, is outside the review function of the Federal Constitutional Court.
A search normally constitutes a serious interference with the basic rights mentioned above. For this reason, the Constitution (art. 13(2) Basic Law) -- and in conformity with it, simple law (§ 105(1) of the Rules of Criminal Procedure) -- essentially leaves the ordering of a search to the discretion of the judge. This is intended to ensure that a search meets the requirements of rule of law. In this regard, the resort to a judge does not merely have the effect that an independent authority reviews whether the legal requirements for a search have been fulfilled; rather, this is also to safeguard from the outset, and not merely after a search has been conducted, that the individual's legal sphere is not interferred with for mere reasons of expediency, or even as a result of political or other unrelated influence, to a broader extent than is required by the purpose of the search.
a) Rule of law first requires that a search warrant always be composed in writing. With a search extending to a press company serving the investigation of an offense dealing with press contents, this principle must apply without exception due to the significance of freedom of the press. This requirement has been met for the search warrant under review here.
b) Furthermore, the interference with basic rights to which the judge authorizes the executive must be defined by him with sufficient precision as to contents, purpose and extent; only in this manner does the interference remain measurable and controllable. This requirement is not satisfied by the judge when he limits himself to the simple holding that certain persons or rooms may be searched, leaving the objective and extent of the search to the discretion of the executive. In order to restrict the search in this manner in accordance with rule of law, the judge must first define, if only briefly, the offense to be clarified with as much precision as at all possible under the circumstances of the given case; otherwise, it remains uncertain which area of facts is to be clarified by the search. This requirement is not satisfied by a mere repetition of the wording of the offense as defined by the Criminal Code. Only the most precise possible description of the specific offense can prevent the investigating authorities from using the search warrant to look for evidence for other offenses that are somehow related -- e.g., due to the criminal law concept of unity of the offense or continuation of the offense -- to the offense originally intended, as was done here by the Federal Prosecutor's Office by extending the search warrant to incitement to treason and espionage (§ 100(2) of the Criminal Code).
In addition, the judge must also describe the type and expected contents of the evidence that is to be looked for with as much precision as is reasonably possible according to all of the circumstances of the case; only such specification can place the necessary limits on a search and prevent a broadening of it in a manner counter to the principles of rule of law, which can occur quite easily since a nearly limitless number of objects often come under consideration as evidence -- regardless of how relevant -- for the case to be clarified.
c) The search warrant under review here does not conform to these principles of rule of law. It does not describe the offense in detail but rather refers simply to «treason» and a «crime under § 100(1) of the Criminal Code» without listing specific facts or even the time and place of perpetration. The alleged espionage (§ 100(2) of the Criminal Code) is not mentioned in the search warrant. Moreover, with regard to the suspicion of bribery, the search warrant merely states: «He is further suspected of having violated § 333 of the Criminal Code, in that the secrets betrayed by him are likely to have stemmed from officials or members of the Armed Forces, who were led by him or his agents to violate their official duties by monetary gifts or the granting of other benefits». The search warrant is thus limited to the reiteration of the statutory definition of the offense. It describes the objective of the search as «evidence and objects subject to confiscation», but at another location, «evidence ... of importance for the investigation». However, the most precise possible description of the objects to be sought would have been absolutely imperative for the simple reason that the search extended, spatially, to cover the Complainant's entire facilities and the voluminous written material stored there.
It is insufficient that the charge of treason against the suspect Augstein was specified through the description of the «Spiegel»-article in the arrest warrant simultaneously issued against him. In spite of this, it was still unclear as to which parts of the lengthy «Spiegel» article were alleged to have treasonable contents. It goes without saying that the deficiencies in the search warrant were unable to be repaired through supplementary directives made by the Federal Prosecutor's Office. Any oral explanations by the investigating judge must likewise be left out of consideration, since they fail to satisfy the requirement of written form, which is necessary in the interest of legal protection of the suspect.
These shortcomings displayed by the search warrant deprived from the outset both the suspect and the Complainant of the opportunity to refute the suspicion, to contest the ordering of the search with success and to limit the extent of the search.
If the investigating judge would from the outset have made the extent of the permissible search clear in writing -- e.g., by limiting it to notes and material only for the attacked article -- then the search would not have been able to be extended to objects whose relation to the alleged treason was not evident; the suspects would also have thus been able to prevent the continuation of the search by voluntarily handing over the objects being sought.
d) On the other hand, it is not of decisive importance whether the search warrant properly allowed the search to be conducted during the night, even though the search first began on the second day following the issuance of the search warrant, i.e., there was no reason to believe that the danger was increased by any delay. Insofar as the observance of § 104 of the Rules of Criminal Procedure is not merely a question of simple law, the nighttime search is, with regard to the special circumstances here, to be viewed in a different light than in a case involving the search of a domicile. In a publishing company and in editorial offices, work is also performed at night; therefore, a nighttime search does not represent a greater disturbance than during the day.
In accordance with the view supporting the decision under § 15(2), fourth sentence, BVerfGG, the foregoing comments do not appear sufficient for establishing the unconstitutionality of the search warrant; it does not suffer from such substantive and procedural deficiencies that it would have to be considered an unconstitutional and thus null and void act of public authority.
a) It has to do with the special status of the investigating judge within the scope of the investigative proceedings -- which were basically dominated by the Prosecutor's Office and thus largely dependent on its plans, legal positions and petitions -- that excessively high demands could not be placed on the reasoning behind his orders. As follows from § 107, the Rules of Criminal Procedure even permits searches on the basis of an oral order. Whether this also applies to searches in press offices does not have to be decided, since the search warrant was issued in writing here. It is correct that the offense with which the suspect was charged, the «Spiegel»-article, was not mentioned in the search warrant. However, this is not a serious error. The Federal Prosecutor's Office had applied in one petition for an arrest warrant and a search order against the suspect; the two orders, while separate, were issued simultaneously. In the arrest warrant, the offense was specifically described. The suspect could thus know -- and at the start of the search, also knew -- on which circumstances the suspicion of treason was based.
It should be noted here that despite the low formal requirements placed by the law on the ordering of a search, and despite the urgency certainly present here, it appears necessary for reasons of rule of law that such orders be drafted with special care. When an order is issued in writing -- which should be the rule as long as the purpose of the search is not endangered by delay -- then it should describe as precisely and specifically as possible not only the criminal offense but also the purpose, objective and extent of the search. The suspect should not be able to get the impression that, by merely reiterating the statutory wording instead of precisely describing the offense, the judge failed to undertake the requisite independent review of the requirements for his order.
As regards the limiting of the extent of the search, it cannot be recognized, in contrast to the Complainant's assertions, that it would have been possible to describe with considerably greater precision the offices to be searched and the evidence allowed to be looked for. In view of the circumstances, it was a matter of course that written documents pertaining to the article were sought; it could not be said in advance of what variety these would be. Outsiders were not able to state which rooms within the editorial offices and the publishing company were used to store such documents; unusual rooms and places were also conceivable, which was in fact confirmed by the search. But such details were also unnecessary. In the first place, as was determined by the statements of its involved members, the Federal Prosecutor's Office sought during the entire action to conduct the search of the company offices with the least possible interference to the Complainant's work and to limit the search to the extent feasible to material related to the article; corresponding directives were also repeatedly made to the enforcement officials. Furthermore, the fact that for the entire duration of the search, a prosecutor and the investigating judge were themselves in attendance ensured that they could intervene at any time in uncertain cases and could be called in by the Complainant. In this manner, it was safeguarded that, even when the wording of the search order is considered to be too vague in this regard, the search and seizure could not be arbitrarily extended to irrelevant offices and objects. Any temporary transgressions of the limits accordingly placed on this are not of constitutional relevance.
b) The search warrant is also based on the suspicion of bribery (§ 333 of the Criminal Code). It must be conceded that the Complainant is correct in its assertion that general experience is insufficient for justifying such a serious measure against a press company. Rather, specific facts must be able to be indicated justifying the suspicion of bribery, particularly with respect to the suspect to be searched.
But with regard to the constitutional significance of this infraction, it must be pointed out that, as explained above, the assumption of suspected treason against the suspect was not arbitrary and that for this reason he was in any event not entitled to the protection of §§ 53(1), No. 5, and 97(5) of the Rules of Criminal Procedure. Since the search of the editorial offices was permissible solely on account of the suspicion of treason, it was no longer important whether he was also suspected of bribery. The assertion that particularly because of the suspicion of bribery, the search assumed an appreciably larger extent than would have been necessary without this suspicion is unable to be affirmed for the simple reason that the uncovering of ties between the suspect and informants from the Federal Ministry of Defense, which were essential with regard to the nature of his participation in the treason, would at the same time also have been extremely likely to have produced evidence of possible bribery. Thus, although it may be determined that the suspicion of bribery should not have been listed in the order, this merely represented an error in the evaluation of the circumstances of the offense, which cannot have the broad constitutional significance for establishing the unconstitutionality of the entire order. It can only lead to the determination that search actions and seizures relating to the suspicion of bribery would not have been lawful. Any ascertainable transgressions of the extent of the search deemed permissible here would constitute procedural errors, which would not lead to the unconstitutionality of the entire search action.
c) The fact that the suspicion of espionage (§ 100(2) of the Criminal Code) was not expressly adopted in the search order may be considered a formal deficiency. The Federal Prosecutor's Office has offered the explanation that this had to do with an act of preparation for treason, which is incorporated by the latter. Even if one were to consider this explanation as unconvincing, the deficiency still is not of constitutional significance. In particular, it is irrelevant (for the same reasons as in the case of bribery) for the question of the application of the protective provision in § 97(5) of the Rules of Criminal Procedure.
J.. . .
Judges: President Dr. Müller, Dr. Berger, Dr. Scholtissek, Dr. Stein, Ritterspach, Dr. Haager, Rupp-von Brünneck, Dr. Böhmer.
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