Out of balance

Sunday, December 3, 2006 at 22:24 | Posted in democracy, Freedom of speech, Germany, Legal, transparency | 4 Comments

Independent courts of law are an essential part of a democratic society. The judiciary branch of government is a part of the classical separation of powers. In ideal the courts of law complete and balance the influence of legislative and executive branches.

In order to fulfil its functions as a part of a democratic society, the process of law must be open and transparent. The citizens must have access to legal proceedings. Describing and commenting issues around legal proceedings falls under freedom of speech which is one of the fundamental civil liberties in a democracy.

In this context I found extremely odd that a German court (Landgericht Berlin) issued the following court order against Rolf Schälike:

Einstweilige Verfügung vom Landgericht Berlin (Az.: 27 O 1264/06).

Verboten wird:

identifizierend über privatrechtliche Auseinandersetzungen zwischen dem Antragsgegner und dem Antragsteller zu berichten und/oder berichten zu lassen, wie auf der Internetseite http://www.buskeismus.de unter der Überschtrift “Fall Helmuth Jipp” geschehen.

Antragsteller war Anwalt Helmuth Jipp, vertreten von Anwalt Dominik Höch von der Kanzlei Schertz.

The court order essentially places a mouth gag on Rolf Schälike to comment a civil dispute between him and lawyer Helmuth Jipp. From what I have learned from my sources, the original argument could be more or less described as peanuts. Mr. Jipp was apparently not happy that Mr. Schälike disclosed in the web that the lawyer has his office at his home.

So what? Publishing something like that should not constitute an infringement on privacy. On the contrary, I would find a detail like that symphatetic. Working in a home office shows an environmental concern and a capability to take advantage of modern office and communication technologies.

While the issue as such is not of a great importance, it is extraodinary that a mouth gag like that is sought and issued in a court of law. It does seriously limit both the transparency of the legal proceedings and ultimately also freedom of speech. It is a serious indication that the balance of powers is out of scale in Germany since the judiciary branch does not seem to be eager to protect freedom of speech.

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4 Comments »

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  1. I think the lawyer just didn’t want that somebody gets the wrong idea he couldn’t afford a proper office. As I understood, he has a building, where his office is on the ground floor and his home is on the first floor. Thus it’s not a home office, is it? This may be a stupid reason for a lawsuit but also matter of reputation for the lawyer.

    The injunction is of course excessive. It’s always the same problem. Courts issue the injunctions without detailed examination of facts and circumstances. But luckily there’s a right to appeal.

  2. As they say here, there is no need to use a shotgun to shoot down a mosquito. 🙂 But this is a matter of transparency as well as freedom of speech.

  3. I love my my grand-dad. Everything he does ends in a court case.
    I know he likes to annoy and tease people in public but that is his right, and no one has the right to take freedom of speech. It is also a silly thing to do, to make a injuction after hundreds of people have printed the comment and talked about it.

  4. […] Millises riigis on asjaosalistel keelatud oma kohtuasja avalikult kommenteerimast, ehkki kohus ise eneses on avalik? Milline riik on kehtestanud rängemad reeglid anonüümsuse kohta internetis kui need, mida Hiina alles kaalub? Millises riigis blogimine on kallis lõbu, kuna iga kriitilise arvamuse avaldamise puhul tuleb rasvaste kohtuhagidega arvestada? […]


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