A fair solution

Germany's Constitutional Court ordered a court in Munich to ensure that foreign media were present during the trial of Beate Zschäpe, a suspected member of a neo-Nazi group alleged to have carried out a sting of murders over a span of 10 years.

Her trial was initially scheduled to start Wednesday (04.17.2012), but was delayed to allow Bavaria's upper regional court in Munich to re-issue the media passes. Foreign media, including the Turkish "Sabah" newspaper, had issued complaints that none of the available press places were given to Turkish or Greek media, and were issued only on a "first come, first served" basis. One significant problem was that the Munich court's press office had encountered technical problems, with the result that Turkish newspapers were informed of the original call for press accreditation at a later date.

Now, of the 50 seats of the reserved for journalists, 10 will be reserved for "German-language media based abroad and foreign-language media." Four of these 10 spots will go to Turkish publications, one to a Greek outlet and to another reporting in Persian. Domestic German media will be allocated 35 places. The remaining five spots are reserved for German and international wire service news agencies.

The places within the categories will now be doled out by a lottery, rather than the "first come, first served" method.

DW spoke to media rights advocate Ernst Fricke about the change in policy.

DW: What is your opinion of the court's decision to reallocate press passes for the NSU trial?

Ernst Fricke: The decision is a courageous one because judges had to carefully consider how to create the fairest situation possible in allocating the spots for media coverage. I think they have achieved that now. It is a very sophisticated decree by the court's chief justice. There are now distinctions between the different groups, and this lottery process as well. That a good way of ensuring that there's a diverse group of 50 journalists covering the trial.

Wouldn't a video broadcast in a special room not have been the fairest and best solution of all?

There is a great deal of debate among scholars about whether one may broadcast such a trial into a room of accredited journalists or not. Munich Professor of Criminal Law Claus Roxin said it's as if one would open up a sliding door to the courtroom, thereby expanding the public's access to the space. The chief justice is being cautious, wanting to prevent a possible appeal from being based on a decision like that.

The court's procedure for allocating press spots reads like a very complex contract. Do you think it's legally sound?

I'm a lawyer and I had to read the text extremely carefully to understand it. It's truly of the school of law, showing that the chief justice took great pains to find a fair way of allotting these limited spots. Yes, I believe this new allocation, as it's been published, is sound.

Do you expect the journalists who initially received seat in the press gallery but do not receive one under the new rules will have grounds to challenge the new procedure?

Anything is possible, but the only place to appeal would be the Federal Constitutional Court and the chances for success there are small. Courts have the opportunity to alter their procedures when new information comes to light before a case begins and that is what the court has done, and, I have to say, it has learned from its mistakes. They have really thought things over and tried to put a fair system in place.

The investigations into the National Socialist Underground (NSU) were marked by a series of errors, breakdowns and missed leads. How seats were allotted in the courtroom seems to be yet another mistake. What impression do you think outside observers are getting of the German legal system?

That's an important point. There are two points that need to be examined separately. The problems during the investigation have nothing to do with the judges hearing the case. A legal case has a dynamic all of its own and begins on the day when it decides to hear the prosecutors' charges. This process has gone without a hitch, the charges were accepted for trial without reservation, there are a lot of joint plaintiffs - there are more than 70 relatives there represented by lawyers. The judges themselves also are not responsible for the decision to use a first-come-first-serve principle when it came to the media, which I would not even call a breakdown. It turned into a problem when Turkish and Greek media were not as well acquainted with the process as German media and were not precisely informed on how it would work. That's a mistake on the part of the court's press relations department that the judges had no part of. They do not need to put their head on the block because the application forms were sent to the wrong e-mail address in Turkey.

The entire world has been talking about what country's media would be present in the courtroom. Do you think the focus is shifting away from the case against Beate Zschäpe and her accomplices?

That question hits the nail on the head. But the wider the media's interest is regarding the case, the better it will be able to report from the courtroom. Turkish media, for example, have a very different point of view and are not familiar with the German legal system. When this prelude with a notary watching a lottery to decide who gets to sit where is finally over, the actual case will be able to get started.

I'm sure that Turkish media will provide their readers with a positive assessment to show that they have been taken seriously and that victims' representatives and relatives of the victims have been shown the respect that they expected.

Professor Ernst Fricke is an independent lawyer in the southern German city of Landshut and a lecturer on media law at the Catholic University of Eichstätt-Ingolstadt. During his studies he worked as a court reporter for the daily "Landshuter Zeitung."