It has never been easier than today to share your opinion with the public: with just one click you can reach a large audience via social media. However, anyone who is active on social media knows that the debates that take place can sometimes become heated and, unfortunately, sometimes go beyond what is legally permissible.
The judiciary also feels this: law enforcement authorities have to deal with a large number of defamation crimes. The crimes of defamation include insults, slander and slander.
It has never been easier than today to share your opinion with the public: with just one click you can reach a large audience via social media. However, anyone who is active on social media knows that the debates that take place can sometimes become heated and, unfortunately, sometimes go beyond what is legally permissible.
The judiciary also feels this: law enforcement authorities have to deal with a large number of defamation crimes. The crimes of defamation include insults, slander and slander.
The judiciary should be relieved
The revision of the Code of Criminal Procedure, which came into force on January 1, 2024, gives the public prosecutor the opportunity to require the applicant to provide security for any costs and compensation in the event of defamation crimes. If the security is not provided within the set deadline, the criminal complaint is considered withdrawn. The procedure is now ended.
In the Federal Council's message on the amendment of the law, this innovation is justified by the fact that the reporting of defamation crimes is often driven by the desire for personal retribution and the violation of legal interests takes a back seat. According to the Federal Council, if such motives are at the forefront of a complaint, it is justified to demand an advance payment before criminal prosecution is initiated. This adjustment, the legislators hope, will help reduce the burden on the judicial system.
Let's take a closer look at the legal provision. It reads:
Art. 303 StPO (Security for defamation crimes)
1 In the case of defamation crimes, the public prosecutor's office can request the applicant to provide security within a deadline to cover any costs and compensation.
2 If security is not provided on time, the criminal complaint is deemed withdrawn.
The article of the law is formulated as a “can-do provision”. The responsible public prosecutor's office decides whether and to what extent a security deposit is required - the decision depends on the discretion of the investigators. The embassy points out that the public prosecutor's office must take into account the importance of the matter and the financial situation of the applicant when assessing this question.
The procedure without advance costs in civil law as a “legal exotic”
A brief excursion into civil law - the obligation to pay an advance on costs is also an optional provision there - shows that charging advances (on costs) in civil proceedings has long since become common practice. Civil proceedings without an advance on costs are, to a certain extent, a “legal exotic” and are one of the extinct species in the “procedural jungle”.
The public prosecutor's office is given considerable discretion by being able to demand security in defamatory crimes, which inevitably leads to great responsibility: the public prosecutor's office will have to carefully assess in each individual case whether the demand for security is justified and in which cases it should be refrained from doing so is.
Problem of bias
Naturally, the public prosecutor's office will have to deal with the reported facts at least briefly in advance in order to be able to assess the significance of the matter. This leads to the question of whether the collection of the security deposit is at best likely to create the appearance of a preliminary consultation. This is particularly because - in contrast to the advance on costs in civil proceedings - when assessing the collection of a security deposit according to the embassy, one must not only take into account the ability of the person making the criminal complaint, but also explicitly take into account the importance of the case and thus material criteria.
With great discretion comes great responsibility
It will be interesting to see which aspects the public prosecutor's office will use when determining the security deposit. It is the responsibility of the public prosecutor's office to ensure that security for defamation crimes does not become the norm in the name of efficiency and relief of the judiciary, but remains an optional provision that must be applied on a case-by-case basis.