Balancing of legally protected interests in Criminal Law

The balancing of different colliding, legally protected interests is a main challenge of criminal law. Austria has numerous of criminal law norms expressing the legislator`s value- and interest-based decisions on the weighing of such protected and colliding interests. Under the topic "Balancing of legally protected interests (`Abwägung`) in Criminal Law focussing on Austrian and European Laws of the Media and Human Rights", the present project wants to analyse such weighing processes by especially focussing on the law of the media and human rights. The decision to concentrate on media criminal law as defined autonomously in the project stems from the consideration that in this research field typically at least one fundamental right such as the freedom of expression or of arts is involved in the balancing process, as the criminally prosecuted or convicted person or e.g. in the framework of media coverage also the mass media will have their fundamental rights affected. These fundamental rights have to be weighed against other fundamental rights of another protect-worthy person or legal goods of the common or (other) state interests. The main purpose of the project is to find out if, on the main basis of a detailed analysis of provisions of media criminal law, but also their application in the legal practice, common fundamental guidelines and principles of legislative and judicial value- and interest-based decisions for conflicting fundamental rights and other legally protected interests can be identified. These common fundamentals, which lead legislation and jurisdiction when creating and interpreting media-relevant norms of criminal law, shall be described. The project primarily concentrates on the level of prohibition and the abstract decisions of the legislator on the weighing of colliding interests and fundamental rights, as in civil law-systems such as Austria, jurisdiction is usually based on already existing legislative norms. The primary responsibility to ensure fundamental rights and the protection of (other) legal goods and interests consequently lies at the national legislator. Moreover, also when focussing jurisdiction and its possibilities to interpret law or to carry out a further developing of law in the light of constitution ("verfassungskonforme Rechtsfortbildung"), benchmark and limit of this is always the legislator`s will. Of course, besides also this level of jurisdiction shall be duly considered in the project. The central research question, after all, is: As far as norms of Austrian media criminal law deal with colliding interests or legal values and especially fundamental rights (especially the "right to free expression" and the "right to privacy"), are there any common basic guidelines and principles of fundamental rights protection through criminal law deriving from these norms and their application in the practice, which express the legislative and judicial interest- and value-based decisions on weighing processes?

The project dealt with questions of balancing of colliding interests concrete in that field of criminal law that prohibits certain contents of communication processes in order to protect other interests (especially everyones right to honour). Those criminal law provisions typically interfere into the fundamental right of the freedom of communication and need therefore a certain justification. The prior responsibility for such a justification in criminal law lies at the legislator, as the legislator is strictly bound to the principle of certainty. According to this fundamental principle of criminal law, every single criminal law rule must be formulated so clearly and unambiguously that every addressee can adjust ones behaviour along those rules. Moreover, a complete delegation of balancing processes to the jurisdiction is also inadmissible. Basically, criminal law provisions therefore also must clearly communicate the result of a balancing process done by the legislator and the legislator has to make decisions on interest collisions transparently, comprehensibly and methodically. Therefore, during the project a 6-step-model of balancing interests as methodical fundament was developed. To give criminal law provisions nevertheless a certain flexibility and timeless nature, the legislator can, under narrow prerequisites, alternatively reduce their certainty. Compensating the reduced certainty, the legislator in these cases and thats another central thesis of the project has to disclose the principles and guidelines which have induced him to a criminal law provision in its specific form. As especially provisions of criminal law restricting the freedom of communication are often composed of very vague and ambiguous formulations with wide margins of appreciations, the essential source to find such recitals are the legislative materials (preparatory works) as different enclosures to newly enacted legislative acts. In these materials, the legislator has the possibility to make its considerations, motives and understandings in connection with new law accessible for the public. Another aim of the project therefore was to analyse in detail such preparatory works to discover exactly those legislative aspects of balancing interests to increase the certainty of criminal law provisions restricting the right to communicate. They can arise from the formulation of the need or goal of the provision, from an impact assessment or the discussion of possible obstacles, and especially from the formulation and discussion of the balancing problem in the narrower sense. The used method was the so-called content analysis as mainly used in the research field of journalism and communication sciences. Answering research questions of legal studies by this method seems to be a novelty of this project. The outcomes of the analysis put forth that the legislator constantly articulates the main needs and goals of a new criminal law provision and sometimes also concretises vague formulations by giving definitions and examples. This can, of course, help in practice to interpret a vague norm. In contrast, only a few considerations of balancing of interests in the narrower sense are explicitly formulated.