Summary:

I.

The applicant had previous convictions for incitement to hatred under § 130 of the German Criminal Code (hereinafter: the Code) and for using symbols of unconstitutional organisations under § 86a of the Code. In 2005, he was convicted of membership of a right-wing terrorist organisation concurrently with unlawful handling of explosives and carrying a firearm without authorisation, and sentenced to imprisonment. At the beginning of 2008, the Higher Regional Court (Oberlandesgericht), by way of a direction issued in the context of a supervision order, prohibited the applicant for a period of five years from “disseminating in the media right-wing extremist or National Socialist ideology”; the failure to comply with such a direction is punishable under § 145a of the Code. The Higher Regional Court argued that, in view of the earlier convictions, the trigger offences and the fact that during his term of imprisonment he had written articles for right-wing extremist magazines, his unchanged convictions gave rise to concerns that he would in future violate §§ 130, 86a of the Code with similar publications.

In his constitutional complaint, the applicant claims that the publication ban imposed violates his freedom of expression under Article 5.1 sentence 1 of the Basic Law.

II.

The First Chamber of the First Senate of the Federal Constitutional Court accepted the constitutional complaint for decision and reversed the challenged decision insofar as it relates to the publication ban. The ban disproportionately restricts the applicant’s freedom of expression.

In essence, the decision is based on the following considerations:

Freedom of expression generally also protects the dissemination of right-wing extremist opinions. However, this applies only within the scope permitted by Article 5.2 of the Basic Law, that is, its limits can be found in the provisions of the general laws, in the statutory provisions for the protection of young persons and in the right to personal honour. The power to issue directions in connection with a supervision order imposed on convicted offenders under § 68b.1 sentence 1 no. 4 of the Code is subject to the limits in the provisions of the general laws. The instrument of a supervision order generally permits prohibiting convicted offenders, for reasons of prevention, from carrying out particular legal and constitutionally protected practices even after they have served their sentences. In the case of such a state measure serving preventive purposes and which is linked to an expression of opinion it is, however, not only necessary to make a prognosis of future dangerousness based on reasoned actual evidence. Rather, it is also necessary to weigh, in line with the principle of proportionality, the adverse effects that may be brought about by the expression of opinion against the loss of freedom of expression resulting from its restriction.

In this connection, it is not necessary to decide whether the prognosis of future dangerousness undertaken by the Higher Regional Court satisfies the constitutional requirements. For the publication ban at all events disproportionately restricts the applicant’s freedom of expression.

The publication ban is unspecific. The prohibition of the dissemination of “right-wing extremist or National Socialist ideology” – even below the threshold of §§ 130, 86a of the Code – does not reliably distinguish between conduct that is forbidden in future and conduct that will still be permitted. The challenged decision does not indicate whether the prohibition of the dissemination of “National Socialist ideology” is intended to cover every ideology that was advocated under the violent and arbitrary National Socialist regime or only particular parts of National Socialist ideology. If the latter were the case, it is unclear by what criteria these contents may be determined. The prohibition of the dissemination of “right-wing extremist ideology” is even less clearly defined. For categorising a position as “right-wing extremist” is a question for a battle of political opinions and social-sciences debate. It stands in an inescapable reciprocal relationship with changing political and social contexts and subjective assessments which do not sufficiently allow the kinds of delimitation relied on in criminal law.

In addition, the challenged decision lacks the constitutionally required weighing of interests. In the case of interferences by the state for the purpose of protecting against threats and which are connected to the contents of a statement, there must be a careful weighing of interests. In case of a preventive publication ban, the substantive scope and duration of the ban, the spectrum of prohibited media and the criminal penalty under § 145a of the Code must betaken into account. In this connection, the person affected will more often have to accept such an interference if it is restricted, for example to particular situations, to the form and the external circumstances of the expression of opinion. In contrast, the more it results in a substantive suppression of particular opinions, the greater the requirements in terms of the degree of a threat to legal interests.

The applicant is prohibited without restrictions for five years from every dissemination in the media of “right-wing extremist or National Socialist ideology”. In this way, depending on his opinions, it is to a great extent impossible for him to participate in the public development of informed opinion by sharing his political convictions. This, however, virtually amounts to the outright denial of freedom of expression. The state’s interest in the applicant’s resocialisation cannot justify such an extensive prohibition.