FIFTH SECTION

DECISION

Application no . 49849/08 Wolfgang TRUCKENBRODT against Germany

The European Court of Human Rights ( Fifth Section), sitting on 30 June 2015 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Vincent A. De Gaetano , André Potocki , Helena Jäderblom , Aleš Pejchal , judges,

and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 15 October 2008 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Wolfgang Truckenbrodt , is a German national who was born in 1952 and lives in Bonn . He was represented before the Court by Mr M. Riemer, a lawyer practising in Brühl.

A. The circumstances of the case

2. The facts of the case, as submitted by the parties , may be summarised as follows.

3. On 16 January 2001 the applicant was granted accreditation as a journalist for a court hearing involving the former Foreign Minister, Joschka Fischer. Due to the considerable media interest in this hearing the presiding judge, relying on section 176 of the Court ’ s Act (see relevant domestic law, paragraph 8) , changed the admission system and granted solely three press agencies the right to take pictures outside the court room (the so ‑ called “p ool-solution ”). The applicant was admitted as a member of the audience. The applicant was told by the president of the Regional Court that he would receive photographs of the hearing of the admitted agencies for free or against a charge. However, according to the applicant, the press agencies declined to give the applicant any photos because he was the owner of a commercial stock-photo agency.

4. On 16 February 2001 the applicant lodged a complaint with the Federal Constitutional Court against the presiding judge ’ s decision to withdraw his accreditation to take pictures in front of the court room.

5. On 18 March 2008 the Federal Constitutional Court refused to adm it the constitutional complaint (file no. 1 BvR 282/01).

6. On 8 November 2012 the applicant lodged an objection against delayed proceedings ( Verzögerungsrüge ) and requested leave to appeal out of time ( Wiedereinsetzungsantrag ), complaining of the length of the proceedings before the Federal Constitutional Court. On 4 December 2012 the Federal Constitutional Court dismissed the applicant ’ s objection as inadmissible for lack of substantiation.

B. Relevant domestic law

7 . Section 169 of the Court ’ s Act ( Gerichtsverfassungsgesetz ) provides that a hearing before a court, including the pronouncement of judgments and rulings, shall be public. Audio and television or radio recordings as well as audio and film recordings intended for public presentation or for publication of their content are not allowed.

8 . Section 176 of the Court ’ s Act provides that the maintenance of order in the hearing shall be incumbent upon the presiding jud ge. The decision whether a journalist may be accredited to take photos before or after a hearing falls according to the German practice within the ambit of this provision.

COMPLAINT

9. The applicant complained of the excessive length of the proceedings before the Federal Constitutional Court.

THE LAW

10. According to the applicant, the length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. Article 6 § 1, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is en titled to a fair ... hearing within a reasonable time by [a] ... tribunal...”

11. The Government argued that the application should be considered incompatible ratione materiae with the Convention. The restriction of the opportunity to report on events as they transpire in open court did not have as its subject matter a question of civil law within the meaning of Article 6 § 1 of the Convention.

12. The applicant did not make any submissions in this request.

13. The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable , there must be a dispute over a “right” that can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious. It may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. Moreover, the outcome of the proceedings must be directly decisive for the civil right in question (see Frydlender v. France [GC], no. 30979/96 , § 27, ECHR 2000-VII).

14 . In its practice the Court has expressly recognised that the majority of the Convention rights, including those of n on-pecuniary nature, are “civil rights” for the purposes of Artic le 6 § 1 of the Convention (see Athanassoglou and Others v. Switzerland [GC], no. 27644/95 , § 55, ECHR 2000 ‑ IV (right to life and physical integrity); Mustafa v. France , no. 63056/00 , § 14, 17 June 2003 (right to change name); Fayed v. the United Kingdom , 21 September 1994, Series A no. 294 ‑ B (right to reputation); AB Kurt Kellermann v. Sweden (dec.), no. 41579/98 , 1 July 2003 (freedom of association)).

15. I n the case of Kenedi v. Hungary , ( no. 31475/05, 26 May 2009 ), which concerned the inability to obtain the enforcement, within a reasonable time, of a final court decision authorising the applicant ’ s access to archived documents, the Court noted that the domestic courts recognised the existence of the right underlying the access sought by the applicant and that the access was necessary for the applicant as a historian to accomplish the publication of a historical study which fell within the applicant ’ s freedom of expression as guaranteed by Article 10 of the Convention. In that connection, the right to freedom of expression was recognised as a “civil right” for the purposes of Article 6 § 1 (see Kenedi v. Hungary , cited above , §§ 33-34).

16. In the case of Roşiianu v. Romania ( no. 27329/06 , 24 June 2014 ) the applicant was a journalist seeking access to public information concerning the legal activities of the local authorities in order to inform the public . The Court noted that the domestic law not only guaranteed access to the information sought by the applicant, but that the domestic courts had moreover recognised this right to access. The Court therefore acknowledged that the applicant ’ s right to access to certain information fell within his freedom of expression as guaranteed by Article 10 of the Convention which was recognised as a “civil right” for the purpose of Article 6 § 1 of the Convention (see Roşiianu , cited above, § 35).

17. However, in cases where the proceedings in question concerned freedom of expression and, in particular, access to information, the Court has found that the right to repor t matters stated in open court could not be counted among rights which are civil in nature for purposes of Article 6 § 1 (see MacKay and BBC Scotland v. the United Kingdom , no. 10734/05 , § 22, 7 December 2010 , confirming previous decisions of the Commission, inter alia G. Hodgson, D. Wool f Productions Ltd. and National Union of Journalists v. the United Kingdom and Channel Four Television Co. Ltd. v. the United Kingdom , nos. 11553/85 and 11658/85 , 9 March 1987 , Decisions and Reports (DR) 51, p. 136 ).

18. As a consequence, a general reporting res triction must be regarded as an exercise of public authority which can in no way be regarded as decisive for the private rights and obligations of any one media outlet (see MacKay and BBC Scotland , cited above, § 22).

19. Turning to the present case the Court notes that, in his constitutional complaint, the applicant complained that the presiding judge ’ s withdrawal of his accreditation as a journalist to take pictures in relation to the court proceedings infringed his basic rights. The Court further notes that pursuant to article 169 of the German Courts Act (see domestic law, paragraph 7) hearings before the court, including the pronouncement of judgments and rulings, shall be public whereas audio, television or radio recordings intended for public presentation or for publication of their content shall be inadmissible. Furthermore, German law does not contain a specific right for a journalist to take photos in connection with a court hearing but does not prohibit it either. A restriction on the taking of photos can be taken by the presiding judge pursuant to section 176 of the Court ’ s Act (see domestic law, paragraph 8). In the present case, the presiding judge first granted the applicant an accreditation to take pictures before and after the court hearing. In view of the considerable media interest in the hearing, the presiding judge subsequently changed the admission system and granted three press agencies the right to take pictures before and after the hearing (the so-called “pool-solution”). As a consequence, the applicant was admitted as a member of the audience, but not allowed to take pictures.

20. The Court finds that, in the absence of any specific right to take photos in connection with a court hearing, the decision of the presiding judge on the admission or restriction of journalists to take photos must be regarded as the exercise of public authority in maintaining the order in court which does not determine rights which are civil in nature for the purposes of Article 6 § 1. This also applies after a comparison of the applicant ’ s situation in the present case with those where a license to carry on professional or business activities is withdrawn and interferes with the right to peaceful enjoyment of possessions as protected by Article 1 of Protocol No. 1 of the Convention (see inter alia Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09 , § 177, ECHR 2012 with further references ), as the judge in granting and withdrawing the accreditation based the decision on a rule which solely regulated the maintenance of order in the court.

21. The applicant ’ s complaint must, therefore, be rejected as incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 July 2015 .

             Claudia Westerdiek Mark Villiger Registrar President