Publishing official documents from criminal proceedings is punishable by law in Germany. “I do it anyway,” says Arne Semsrott. In doing so, he knows the European Court of Human Rights is on his side.

On Tuesday, the information platform “Ask the State” (Frag den Staat) put files of the Munich District Court on the proceedings against the Last Generation online. These are three decisions on searches, seizures and wiretaps against the Bavarian offshoot of the nationwide network of the climate movement.

The publication relates to preliminary proceedings against several people for the formation of a criminal organization under Section 129 of the Criminal Code, as well as membership in the same. In May, the Munich Public Prosecutor’s Office had the homes and residences of seven suspected members of the Last Generation searched with reference to this spying paragraph. Should charges be brought, the activists face up to five years in prison.

Publishing official documents from criminal investigations can be punished in Germany with up to a year in prison under the charge of “prohibited communications about court proceedings.” “I do it anyway,” Arne Semsrott writes about this on the “Ask the State” blog.

Semsrott co-founded “Ask the State” in 2011 as a technical platform for more transparency in government processes. Users can create an account there and submit questions to ministries and authorities in Germany and the European Union. These must be answered within a period of several weeks, unless there are reasons for non-disclosure. In some German states, however, there are only limited freedom of information laws.

With the publication of the Bavarian files, Semsrott wants to stimulate a debate about state persecution of the Last Generation: “How does a court justify these measures? That is an important question. It should be publicly discussed and evaluated.”

A strict ban on publication of court documents is also unconstitutional in terms of free press coverage, Semsrott said. He is relaxed about the risk of criminal prosecution: “If there are investigations against me because of this, it offers the chance to have the unconstitutionality of the publication ban established,” Semsrott tells “nd.”

These proceedings could ultimately end up before the European Court of Human Rights. In another case, it had ruled that publication of documents from criminal proceedings could only be prohibited if it impaired the courts’ determination of the truth or the presumption of innocence. In addition, the press’s interest in information had to be weighed. However, the German Criminal Code does not contain this criterion.

In one of the published decisions, the district court may therefore also have violated the fundamental right of freedom of the press. This is because it allowed the public prosecutor’s office to monitor calls made by journalists to Last Generation from November of last year. However, the fact that the landline number to be tapped was the initiative’s press telephone is not mentioned in the corresponding decision. Accordingly, the investigating judge could not have weighed the measure against the serious encroachment on the freedom of the press, “Ask the State” concludes.

The apparently disproportionate wiretapping measure was to expire at the end of January 2023. At this time at the latest, the investigating judge should have been aware that this would restrict the freedom of the press. According to Semsrott, in an internal memo, the criminal investigation department wrote on January 9: “On the line, almost exclusively requests are received from media representatives, students and pupils asking for press information or an interview.” However, “Ask the State” does not want to publish this document for reasons of source protection.

According to the memo, however, the wiretaps did not provide any information about upcoming actions that was not already known from press releases or conferences of the Last Generation. Nevertheless, the investigating judge in charge continued to extend the surveillance.

With the surveillance and searches, the public prosecutor’s office wanted to uncover the “tight organizational structure” of the Last Generation. The investigators were suspicious that those responsible there were referred to “as the king or queen of bees”. This core team consisted of “as yet unidentified backers,” according to one of the published resolutions. “The Last Generation continuously recruits new members and also organizes its own meetings for this purpose,” the judge suspects in it, claiming: “Outwardly, the association pretends to be non-violent, but the association constantly propagates further escalation.”

Semsrott suspects that the Bavarian investigative zeal is primarily politically motivated. This is supported by the fact that the judge also refers in the decisions to politicians who have called for criminal punishment. The district court suspects the enemy to be on the far left: In one of the three documents, the police officers are asked to search for objects, documents and files “that provide information about left-wing radical unconstitutional ideas” of the defendants.

Published in German in „nd“.

Image: Letzte Generation München, Letzte Generation Blockadeaktion Luitpoldbrücke nach der Räumung München 2022-11-22 (CC BY-SA 4.0).