The legal processing of the criminal “Cum ex” stock transactions not only burdens the suspects who operated them and a Federal Chancellor, who now faces another investigative committee because of his role as Hamburg mayor in the biggest tax scandal in German economic history. It also affects freedom of the press.
The former head of the Warburg Bank, Christian Olearius, took action against the media that had quoted from his diaries – and thus provided clues for possible involvement of the Hamburg tax authorities, among other things.
Jost Müller-Neuhof is a legal-political correspondent and grateful that freedom of the press has a firm place in the Basic Law. But she can’t rest on that.
The Hamburg courts went along with it. The legal lever for this was paragraph 353d of the Criminal Code, which made it a punishable offense to publish files from ongoing proceedings. Proceedings like those against Olearius himself, who will soon have to answer in court.
The diary entries of the former Warburg banker got into the political discussion with good reason. It would be absurd to subject them to a legal taboo.
Jost Müller-Neuhof
In principle, the paragraph is intended to ensure the integrity of such procedures. At the same time, the presumption of innocence. Processes should not be negotiated in public – and decided in advance – before an indictment has even been read out.
It is obvious that the facts of the case are in a field of conflict with the democratically desired criticism and the freedom of the press that essentially supports it. Aren’t many grievances that should be denounced documented in the files of ongoing investigations? And don’t you have to be able to report on suspicions and suspects?
The penal provision attempts a balance here, which mostly succeeds – unless the judiciary forgets to apply it correctly. Right means: With regard to the freedom of reporting and the right of the press to set its own topics.
The Federal Court of Justice has now clearly drawn these standards. In the event of false reports, those affected can demand a cease-and-desist or compensation for damages and are thus adequately protected. However, they cannot functionalize paragraph 353d for their purposes. There always has to be a balance with concerns about freedom of the press. In addition, the confiscated diaries are not “official documents” at all, as required by the regulation.
The diary entries of the former Warburg banker got into the political discussion with good reason. It would be absurd to subject them to a legal taboo. Olearius has to face the criminal charges and the current federal government has to accept that the “Cum ex” case is far from over. That may not always seem fair to those affected, but it is democratic.
