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, those who are active on social media themselves know that the debates can sometimes become heated and, unfortunately, also leave the ground of what is legally permissible.
The judiciary is also feeling the effects: the prosecution authorities have to deal with a large number of defamation offenses. Defamation offenses include insult, malicious gossip, and defamation.
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, those who are active on social media themselves know that the debates can sometimes become heated and, unfortunately, also leave the ground of what is legally permissible.
The judiciary is also feeling the effects: the prosecution authorities have to deal with a large number of defamation offenses. Defamation offenses include insult, malicious gossip, and defamation.
The judiciary should be relieved
With the revision of the Code of Criminal Procedure, which came into force on January 1, 2024, the public prosecutor's office is given the possibility to request a security from the person filing the complaint to cover any costs and damages in cases of defamation. If the security is not provided within the set period, the complaint is deemed withdrawn. The proceedings are thus terminated.
In the Federal Council's message on the adjustment of the law, this innovation is justified by the fact that the reporting of defamation offenses is often driven by a desire for personal revenge and the violation of legal rights takes a back seat. If such motives are in the foreground when filing a complaint, according to the Federal Council, it is justified to request an advance payment before criminal prosecution is initiated. This adjustment, according to the legislator's hope, will contribute to relieving the judicial apparatus.
Let's take a closer look at the legal provision. It reads:
Art. 303 StPO (Security for defamation offences)
1 In cases of defamation, the public prosecutor's office may request the applicant to provide security for potential costs and damages within a specified period.
2 If the security is not provided on time, the complaint is deemed withdrawn.
The article is formulated as a 'may' provision. Whether and to what extent a security is required is decided by the competent public prosecutor's office - the decision depends on the discretion of the investigators. The message indicates that the public prosecutor's office must consider 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 a cost advance is also a discretionary provision there - shows that the levying of (cost) advances in civil proceedings has long since become the norm. A civil proceeding without a cost advance is, to some extent, a 'legal exotic' and belongs to the extinct species in the 'procedural jungle'.
The public prosecutor's office is given considerable discretion with the possibility of demanding a security deposit in cases of defamation, which inevitably leads to a great responsibility: the public prosecutor's office will have to carefully assess in each individual case whether the demand for a security deposit is justified and in which cases it is to be dispensed with.
Problematics of bias
Naturally, the public prosecutor's office will have to deal with the reported facts at least summarily in advance in order to be able to assess the significance of the matter at all. This raises the question of whether the collection of the security deposit is possibly suitable to give the impression of prior involvement. This is particularly the case because - in contrast to the cost advance in civil proceedings - when assessing the collection of a security deposit according to the message, not only the ability of the person filing the criminal complaint to pay is to be considered, but also explicitly the importance of the case and thus material criteria are to be taken into account.
With great discretion comes great responsibility
It will be interesting to see what considerations the public prosecutor's office will be guided by when determining the security deposit. It is the responsibility of the public prosecutor's office to ensure that the security deposit in cases of defamation does not become the norm in the name of efficiency and relief of the judiciary, but remains a discretionary provision that is to be applied on a case-by-case basis.
