General News

Main hearing: When may the public be excluded?

In principle, any person may attend a main hearing in criminal proceedings. This principle is called "publicity of the people" and corresponds to a constitutional requirement. The aim is to enable the judiciary to be monitored by the public and to protect the defendant from "arbitrariness of justice." The public may be excluded only because of threats to public order or national security, prior to discussion of the personal life or secrets of a defendant, victim, witness or third party, or to protect the identity of a witness or third party. Such grounds for exclusion are, for example, the discussion of circumstances concerning the sexual sphere or business or trade secrets.

Exclusion of the public shall be decided by the court called upon to decide ex officio or at the request of a party to the proceedings or a victim. The judgment shall always be pronounced in open court. The exclusion may cover the entire proceedings or only a part, for example, the testimony of individual witnesses. As soon as the court has announced the decision to exclude the public, all members of the audience must leave the hearing room. However, the defendant and the victims may request that three trusted persons be allowed to attend the hearing.

To protect the content of such a hearing from which the public was excluded, there is a separate criminal law provision "prohibited publication". Any person who publishes a notice of the content of the hearing may be sentenced to imprisonment of up to six months or a fine. The publication of the communication that a trial has taken place, when and where it took place, and who participated in it, do not belong to the prohibited substantive communications. Under the same provision (Section 301 of the Criminal Code), a person may be punished who publishes a communication about deliberation in a court proceeding, about such a vote, or about the result thereof (e.g., deliberation of a jury or deliberation in an appellate panel). Prohibited communications in connection with such deliberations include, for example, disclosing which arguments were discussed during deliberations, who argued what arguments, and how each member voted.