Courtrooms are places of radical transparency. Whether a murder trial or a fraud charge – anyone who wants to watch the rule of law live and unfiltered at work can usually attend negotiations in any court in the country without registering and witness interviews or judgments. In selected processes there has recently been the option for courts to also stream the pronouncements of verdicts live online.
Free information is a prerequisite for democracy. Hence: The “Best of Freedom of Information”, every two weeks, by Arne Semsrott. He is the project manager of FragDenStaat and a freelance journalist. He works on the subjects of freedom of information, transparency, lobbying and migration policy.
Public controls the judiciary
The fact that negotiations are fundamentally open to everyone is a hallmark of a well-functioning judicial system. It ensures that the public can control the judiciary. Outside of the courtroom itself, however, the situation is different: both the internal work of courts and the work of public prosecutors, which are more likely to be assigned to the executive branch, usually remain a black box for the public.
Of course there are exceptions to this: some journalistic scoops would be unthinkable if some representatives of the press did not have a very short line to certain public prosecutors. Certain journalists even have a special relationship with the Federal Constitutional Court through the judicial press conference. But when it comes to decisions by administrative and civil courts alone, transparency often stops. Most of the decisions and judgments made “in the name of the people” are not actively published.
Courts do not report themselves
This means that important processes are not made known to the public because the courts themselves do not report on them. Above all, structural problems cannot be revealed through judgments. How many courts in the lower instances have passed which verdicts on the emissions scandal? Hardly verifiable. How many alleged right-wing crimes in Brandenburg in 2019 were not punished with what reasons? Not known.
The only argument against a general (anonymized) publication of all decisions is a practical one: the broken IT infrastructure of the courts would probably not go along with a mass publication. In the course of the reorganization, which will hopefully soon be imminent, transparency should be taken into account directly.
Scandalous judgments are often hidden
Even the right-wing tendencies in the judiciary, which have recently been widely discussed, are mostly hidden from public scrutiny because scandalous judgments are not published. It was not until after some delay known last winterthat a judge at the Gießen Administrative Court ruled that the phrase “migration kills” is a fact. What other rulings the judge falls under the public radar is unknown.
An evaluation of judgments, possibly enriched with further data, would also be a treasure for science: How does the jurisprudence on a paragraph of asylum law differ in the federal states? Are judgments harder in the morning than in the afternoon? And how does the gender ratio of judges’ benches influence the judgments?
Transparency also necessary at the public prosecutor’s office
But the public can hardly get an idea of the right-wing tendencies in public prosecutor’s offices not only from the courts. The exact background of the decision The Halle public prosecutor’s office, for example, that despite numerous overwhelming indications to close the investigation into the death of Oury Jalloh, remains hidden. According to the Code of Criminal Procedure, only those involved in the process have access to the files of the public prosecutor’s offices – presumably even after the investigation has been concluded.
That needs to change. The judiciary must also become more transparent. Not in the same way as in the USA, where data protection and the public’s interest in rehabilitating perpetrators is traditionally too small. But even representatives of the judiciary are not raised above criticism in a democracy. After all, they too are thoroughly through the media and attempts of the Litigation PR influenceable.
It is primarily about the control of the judiciary, not about that in the tabloid press and more recently also common at the NDR Focus on perpetrators. Videos of police interrogations of suspected perpetrators should at least not be widely disseminated during a trial – it is too unclear whether this would not affect other witnesses and only fuel the self-portrayal of an alleged perpetrator.