Procedural equality of arms binding on Regional Courts

The Federal Constitutional Court has reined in the Press Chamber of the Regional Court (LG) Berlin in a landmark judgment due to repeated disregard for procedural equality of arms.

The background to the constitutional complaint was an interim decisionconcerning press law made by the LG Berlin against a publishing house. The subject matter of the dispute was a report on a topping-out ceremony of a prominent person's property. The article was critical of the conduct of the celebration against the backdrop of the COVID-19 pandemic.

The prominent person sent a cease-and-desist letter to the publishing house, inter alia, due to unauthorised use of personal photographs without success. She then applied to the LG Berlin for an interim injunction. The court issued several instructions to the prominent applicant and granted her time limits to make submissions. Ultimately, an interim injunction was issued without involving the opposing publishing house.

The publishing house filed a constitutional complaint against the interim injunction. It relied on a violation of procedural equality of arms.

Federal Constitutional Court (BVerfG): Procedural equality of arms manifestly violated

By judgment of 11.01.2022 – 1 BvR 123/21 – the BVerfG confirmed the violation of the right to procedural equality of arms by the Press Chamber of the LG Berlin.

Procedural equality of arms is linked to the principle of being heard, which is a particular manifestation of equality of arms. This principle requires that in judicial proceedings the opposing party be given the opportunity to influence a forthcoming decision. Prior hearing is only dispensable in exceptional cases. In press and freedom of expression law, it cannot in any case be assumed as a rule that surprising the opponent when asserting claims is necessary.

Hearing must be granted in particular also when the court issues instructions to the applicant which the opposing party would otherwise not learn of, or would learn of only after a decision disadvantageous to it has been issued. Accordingly, it is constitutionally required to place the respective opponent in the same state of knowledge as the applicant before a decision is issued, by also communicating the judicial instructions to the opponent in a timely manner.

A one-sided closed procedure over a period of several weeks, in which the court and the applicant exchange views on legal questions without involving the respondent in any way whatsoever, is incompatible with the procedural principles of the Basic Law.

Conclusion

In civil interim proceedings, decisions are typically issued without prior hearing of the opponent due to the urgency involved. In the present case, however, the court had issued multiple instructions to the prominent applicant and offered her the opportunity to make submissions. Without involving the publishing house, the equality of the procedural position of the parties was therefore not ensured in this case.

Following repeated violations by the Press Chamber of the LG Berlin of the requirement to observe procedural equality of arms, the BVerfG announced that in the event of future violations it will always consider the interest in establishing a finding to exist for a constitutional complaint.

In the order of 27.10.2022 – 1 BvR 1846/22 the BVerfG examined procedural equality of arms again with strict scrutiny. Here too, the court found a violation of procedural equality of arms in the press law interim injunction proceedings because the reasoning in the cease-and-desist letter contained deviations from the motion for an injunction.