With Germany’s Phase 4 review under the OECD Anti-Bribery Convention scheduled to take place in 2018, Dr. Angela Reitmaier of Transparency International Germany explains why making court decisions publicly available is so important to the fight against corruption
Governments can only be held to account if people know what they are doing. This is why it is so important for civil society to have access to information on all types of government actions. Advocating for what we call “open data” is at the heart of the anti-corruption movement.
In Germany, Transparency International has long been pushing for the publication of court decisions that include the names of the guilty parties, particularly those involved in foreign bribery.
A 1998 study by Reinhard Walker found that only 0.5% of all court decisions in Germany are published. Even at the level of federal courts, the publication rate ranged only between 2% (Federal Patent Court) and 44% (Federal Tax Court). While results will have improved since then, Germany is far from publishing all court decisions at all levels. In 2015, the Supreme Court of Germany (Bundesverfassungsgericht) held that the publication of court decisions is a constitutionally mandated task of the judiciary, saying that all decisions worthy of publication must be published. This qualification means that not all decisions must be published. The Supreme Court added a further qualification whereby decisions concerning personal data and circumstances generally have to be anonymised. Anonymisation means that the names of offenders are omitted and that only the initials of company names, foreign countries and other locations or actors are published. Under German constitutional law, the right to privacy of the offender, which is affected when a criminal verdict is published with names, has to be balanced against the principle of open criminal trials and the right of the public in a democracy to oversee the judiciary.
The right to know v. data protection
In my opinion, the public’s right to know should prevail in cases of foreign bribery, especially as far as the names of foreign countries and companies are concerned, but also the names of offenders. For the related offence of money laundering, Art. 59 of the EU’s 2015 Anti-Money Laundering Directive requires member states to name people not complying with the requirements of the Directive in a public statement. This shows that constitutional balancing can come out in favour of naming offenders. In addition, foreign bribery may amount to a violation of the human rights of the foreign country’s people. By removing the names from decisions, the courts keep information from victims who may want to seek remedy for the violation of their human rights or to recover stolen assets. In its 2015 Exporting Corruption Report, Transparency International criticises the fact that collection and access to enforcement information continues to be a challenge in many countries, citing Germany for its practice of not disclosing the names of defendants and countries. The G20-Anti-Corruption Open Data Principles, agreed at the 2015 Summit in Antalya, recognise that open data provide a platform to help expand social participation, including in the judiciary and law enforcement.
In Germany, civil society is demanding an open judiciary as part of the National Action Plan for the Open Government Partnership, an initiative the German government joined in December 2016. This would include publication of all judicial decisions.
The Ministry of Justice has started uploading all federal court decisions they deem worthy of publication to a free website. This is an important first step, paving the way for this kind of service to be extended to all court decisions of the federal states (Länder) in the spirit of open data.
As the campaign for open data in the judiciary gains momentum, the 2018 Phase 4 review of Germany under the OECD Anti-Bribery Convention will provide an opportunity for debating this topic with the review team. The Phase 4 Monitoring Guide defers to national rules on confidentiality, but also encourages the evaluated country to release information concerning its questionnaire responses or make them publicly available.
Germany is not the only country where the pressure to provide open data is growing and this is a theme that could be taken up by the OECD Working Group on Bribery. A reasonable balance needs to be found between the importance of open judicial data in the fight against corruption and respect for general constitutional principles such as the right to privacy or business secrets.