THIRD SECTION

DECISION

Application no. 20160/16 Christine Ursula ZEMBOL against Germany

The European Court of Human Rights (Third Section), sitting on 30 November 2021 as a Committee composed of:

Georgios A. Serghides, President, Anja Seibert-Fohr, Frédéric Krenc, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 20160/16) against Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 April 2016 by a German national, Ms Christine Ursula Zembol, who was born in 1955 and lives in Wendisch Evern (“the applicant”) and who was represented by Mr Krahn ‑ Zembol, a lawyer practising in Wendisch Evern;

the decision to give notice of the application to the German Government (“the Government”), represented by one of their Agents, Mr H.-J. Behrens, of the Federal Ministry of Justice and Consumer Protection;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. The present case concerns the applicant’s complaint under Article 10 of the Convention about the refusal to allow her to bring pencils and writing paper into the courtroom in the criminal trial against O.G., which was held before the Lüneburg Regional Court between 21 April 2015 and 15 July 2015 on charges of O.G. having aided and abetted 300,000 counts of murder at the Auschwitz extermination camp in 1944. The defendant was 93 years old when the trial commenced and in fragile health (the defendant’s application to the Court was adjudicated in Gröning v. Germany (dec.), no. 71591/17, 20 October 2020). On 2 February 2015 the presiding judge issued an order governing public access to the trial, which was published and which provided that visitors were not allowed to bring into the courtroom inter alia weapons, dangerous implements, items that could be thrown, leaflets as well as ball ‑ point and fountain pens. From 22 April 2015 until the end of the proceedings, the applicant, who did not possess a press pass, attended the trial as a visitor in the public gallery. Representatives of the press were allowed to bring pencils and writing paper into the courtroom.

2. By e-mail to the Regional Court, the applicant sought permission to bring pencils and writing paper into the courtroom so as to be able to take handwritten notes during the oral hearings. She stated that she was interested in the subject of the Holocaust and wanted to grapple with the topics of reconciliation and the work of the judiciary in dealing with the offences committed. The competent judge of the Regional Court repeatedly refused her requests. On 26 May 2015 the applicant lodged a complaint under Article 304 §§ 1 and 2 of the Code of Criminal Procedure against the order of 2 February 2015, as implemented, and requested permission to bring writing implements into the courtroom. She considered the implementation of the order to be arbitrary and not in accordance with the order’s wording (which did not mention pencils and writing paper), and to infringe the principle that oral hearings were public as well as her fundamental rights. In view of the duration, complexity and level of detail of the testimonies, it was impossible to retain all information without being able to take notes during the oral hearings. The de facto prohibition to take notes during the hearings was disproportionate and unacceptable given the historic significance of the trial.

3. By order of 26 May 2015 the presiding judge of the Regional Court dismissed the applicant’s complaint and referred the matter to the Celle Court of Appeal. By order of 8 June 2015 the Court of Appeal dismissed the applicant’s complaint. It found that complaints under Article 304 of the Code of Criminal Procedure against an order under Section 176 of the Courts Constitution Act concerning the maintenance of order during an oral hearing, as at issue in the present case, could only be challenged if such order produced effects which, firstly, extended beyond the duration of the hearing (or even the judgment) and, secondly, had a lasting detrimental effect on the person’s fundamental or other rights. These requirements were not satisfied in the present case. Prohibiting the applicant to bring sharp writing implements, including pencils, into the courtroom did not produce effects that extended beyond the duration of the hearing. The applicant could take notes based on her memory during intermissions or after the conclusion of a hearing. The measure at issue did also not have a lasting detrimental effect on her rights. The applicant’s complaint was therefore inadmissible.

4. The Court of Appeal added that the applicant’s complaint was, in any event, ill-founded. The presiding judge’s order pursued the legitimate aim of ruling out dangers for the parties and of ensuring that the hearing could be conducted without disruptions. Having regard to the particularities of the criminal proceedings at issue – the criminal charges as well as the age and state of health of the defendant and of the private accessory prosecutors –, the measure was proportionate. The applicant’s legitimate interest in taking notes during the oral hearing was outweighed by the interest in ensuring that the proceedings could be conducted without disruptions and that of the parties, in particular the defendant, in being protected against assaults by way of thrown items. The old age of the parties and the defendant’s poor state of health required ruling out the possibility of a disruption of the hearing through small items being thrown. Lastly, the measure interfered with the applicant’s rights only for a very limited duration and her interest in information was sufficiently satisfied as she was able to take notes immediately after the end of a hearing or during an intermission.

5. On 26 June 2015 the applicant lodged a constitutional complaint. By order of 28 September 2015, the Federal Constitutional Court decided not to accept the complaint for adjudication (no. 1 BvR 1466/15), without giving reasons. The decision was served on the applicant on 9 October 2015.

6. The applicant complained under Article 10 of the Convention about the refusal to allow her to bring pencils and writing paper into the courtroom. This prevented her from taking handwritten notes of the testimonies during the oral hearings and from processing and recording, in a precise and detailed manner, the information she saw and heard. Thereby she was prevented from comprehensively informing herself on this trial of historic significance and from comprehensively imparting the respective information. She asserted that there was a right under Article 10 of the Convention for every individual to receive, process and record information and that it was not a requirement of this right that it be intended to impart the information to others, as its core was to comprehensively inform oneself. This right had a corrective and complementary function vis-à-vis mass media and allowed individuals to record the information as they perceived it, to attach importance to issues not covered by the media and to form their own opinion on a matter. Indeed, certain witness testimonies which had impressed her were not covered in the media. In view of the complexity, scope, duration, detail and level of emotions involved in the testimonies in the trial against O.G., it was impossible to remember anything but fragments without taking notes simultaneously. It was impossible to comprehensively record the information during the intermissions, which were short, or after the conclusion of a hearing which had lasted for a few hours. The inability to take handwritten notes during the hearings also affected her ability to potentially publish on the matter at a later stage.

THE COURT’S ASSESSMENT

7. In Magyar Helsinki Bizottság v. Hungary ([GC], no. 18030/11, §§ 149 ‑ 180, 8 November 2016) the Court laid down general principles regarding the right of journalists and other “public watchdogs” to access information held by a public authority. Such a right or obligation may arise where access to the information is instrumental for the individual’s exercise of his or her right to freedom of expression, in particular “the freedom to receive and impart information” and where its denial constitutes an interference with that right (ibid., § 156).

8. The applicant, a private individual, attended the hearings in the trial against O.G. as a visitor in the public gallery. Leaving aside that the applicant did not explain that she had a “public watchdog” role which could result in her having a right of access to information (see ibid., §§ 164-168), the Court notes that she received the impugned information by observing the trial in person and cannot claim that she was denied access to it. Indeed, her complaint focused on the fact that she was not able to record and process, by taking handwritten notes during the hearings, the information she was receiving during those hearings. However, the right to receive information, as set out in the Court’s case-law, does not encompass a right to record information which one has received in a particular manner. Insofar as the applicant seeks to invoke such a right, her complaint is incompatible ratione materiae with Article 10 of the Convention.

9. Insofar as the applicant alleged that the inability to take handwritten notes during the oral hearings restricted her ability to impart information on the matter, including in the form of potential publications, the Court observes that it is not in dispute between the parties that the applicant did not claim, at any stage of the proceedings before the domestic courts or before the Court, to be a member of the press. She did not, moreover, submit before the domestic courts that she intended to publish on the trial against O.G. or related matters and that the handwritten notes, which she wished to take, were a preparatory step to this effect (see Magyar Helsinki Bizottság , cited above, § 158). Her submission before the Court concerning potential publications in the future is of an abstract nature. The Court concludes that the applicant has failed to show – both before the domestic courts and before this Court – that not allowing her to take handwritten notes during the oral hearings impaired the exercise of her freedom of expression, and in particular her right to receive and impart information, in a manner striking at the very substance of her Article 10 rights (compare Georgian Young Lawyers’ Association , no. 2703/12, §§ 30-34, 19 January 2021; Centre for Democracy and the Rule of Law v. Ukraine (dec.), no. 75865/11, § 54, 3 March 2020). It follows that Article 10 of the Convention does not apply and that the part of the applicant’s complaint concerning imparting information is incompatible ratione materiae with Article 10 of the Convention.

10. Lastly, insofar as the applicant alleged that she could not form an opinion about the trial against O.G. and the matters raised therein, because she was not allowed to take handwritten notes during the oral hearings, the Court considers that the applicant has not made out her case. She observed the trial by attending the oral hearings in person as a visitor in the public gallery and received the information first-hand. As a general rule, the Court cannot discern that taking detailed handwritten notes during the oral hearing is a necessary step for a trial observer to form an opinion. While a judge is required to thoroughly document witness testimonies in order to make his or her legal assessment on the basis of precisely established facts, and while the ability to thoroughly document testimonies may also be an important element of the right to a fair trial under Article 6 of the Convention for the parties to the proceedings, these considerations do not apply to the same extent to a trial observer who is not a party to the proceedings. Moreover, the applicant was able to write down notes from her memory during intermissions and after the conclusion of each hearing. She also had the opportunity to obtain additional information from the comprehensive media reporting on the trial as well as, ultimately, from the judgment. Insofar as the applicant submitted that coverage by mass media was selective, this cannot serve as an argument for finding that she should have been allowed to take handwritten notes either. The Court therefore considers that the applicant, whose submissions were of a rather abstract nature, has not substantiated why and in what way she was allegedly unduly restricted in forming an opinion on the trial which she observed in person as a visitor in the public gallery. Therefore, the Court concludes that there has been no interference with the applicant’s right to hold an opinion under Article 10 § 1 of the Convention.

11. It follows that the applicant’s complaint must be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 13 January 2022.

Olga Chernishova Georgios A. Serghides Deputy Registrar President