Non-public criminal trial under sections 229 and 230 StPO

Section 228(1) StPO provides that the main trial is public, failing which the proceedings are subject to nullity. Public access allows scrutiny of criminal justice and forms part of the basic rules of the procedure. The principle concerns the access of members of the public to the trial.

Public access has limits. As a rule, only unarmed persons may participate or attend. Minors may be excluded if their presence could endanger their personal development. Television and radio recordings or broadcasts, as well as film and photography of court proceedings, are prohibited under section 228(4) StPO. These rules concern access and the conduct of the trial. The specific exclusion under section 229 StPO additionally requires one of the grounds listed there.

Section 229(1) StPO permits exclusion because of a risk to public order or national security. It also permits exclusion before the private life or secrecy of an accused person, victim, witness or third party is discussed. The third ground protects the identity of a witness or third party for the reasons referred to in section 162 StPO.

The assessment must relate to the concrete part of the trial. A private or confidential sphere may be affected only during a particular discussion. Where there is a risk, the court must identify when it arises and how long it lasts. This distinction matters because section 229(2) StPO allows exclusion of the whole trial or only part of it.

The exclusion is tied to prevailing legitimate interests that require protection. The court must therefore relate the statutory ground, the interests affected and the necessary scope to one another. A general wish for less attention does not replace this assessment.

The court may order exclusion on its own initiative. Under section 229(1) StPO, a participant in the proceedings or a victim may also apply. The application should identify the statutory ground, the part of the trial concerned and the requested scope. It may concern the whole trial or a specific part.

The court with lay judges decides on exclusion by order at any stage of the proceedings. This also applies when the issue first arises during the main trial. The order and its reasons must be announced in a public sitting. The public announcement makes the decision understandable before the audience leaves the courtroom.

There is no separate remedy against the exclusion order that suspends the further conduct of the trial. This rule concerns the order about public access. It does not determine which remedies may be available against the judgment or other decisions in the criminal proceedings.

After the public announcement of the exclusion order, all members of the audience must generally leave. Section 230(2) StPO creates exceptions. Judges and public prosecutors in active service, judicial trainees and legal trainees may never be excluded. The same applies to the persons named in section 48(1)(5) StPO.

An accused person, victim, private party or private prosecutor may demand that three persons of their confidence be admitted. This creates a statutory possibility of keeping support from trusted persons during a non-public trial. The persons chosen and the practical arrangements in the courtroom should be clarified with the court in good time.

Section 230(2) StPO also applies section 160(2) and (3) StPO by analogy. The case file therefore remains important for the precise implementation. Exclusion of the general public does not mean that every person who is not a participant may stay without further examination.

Under section 229(4) StPO, the judgment must always be pronounced in a public sitting. This also applies where the public was excluded for individual parts or for the remainder of the trial. The judgment is therefore pronounced during a public part of the sitting.

The exclusion order itself is also announced publicly together with its reasons. The audience must then leave unless a person is legally protected or a trusted person is admitted under section 230(2) StPO. The public decision and the non-public discussion of protected content are kept separate in this way.

Exclusion changes access to the main trial. It does not decide whether the accused is personally present. For that separate procedural issue, see the post on a trial in the absence of the accused. The general course of the main trial is explained in the post on the main trial in criminal proceedings.