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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.
Please cite the abstract as follows:
Abstract of the Federal Constitutional Court’s Order of 26 February 2015, 1 BvR 1036/14 [CODICES]
Abstract

Third Chamber of the First Senate

Order of 26 February 2015

1 BvR 1036/14

Headnotes (non-official):

For being compatible with the freedom of expression, a conviction for insult to a group under § 185 of the Criminal Code (hereinafter: the Code) presupposes that the relevant expression of opinion made in the public sphere refers to a determinable and definite group of people. Otherwise, the interference with the freedom of expression is not justified.

Summary:

I.

The police intercepted the complainant when wearing a button marked with “FCK CPS”. A Local Court convicted her for insult under § 185 of the Code. The court argued that “FCK CPS” was an abbreviation for “Fuck Cops” and constituted an expression of disdain that referred to the social value attached to that public office and was aimed at depreciating it. The appeal by the complainant to the Higher Regional Court was unsuccessful.

II.

The Federal Constitutional Court held that the court decisions violated the complainant’s freedom of expression under Article 5.1 of the Basic Law. The decision is based on the following considerations:

1. Wearing a button with the print “FCK CPS” constitutes an expression of opinion that, inter alia, shows a general disapprobation vis-à-vis the police. It also qualifies as an expression of opinion under Article 5.1 of the Basic Law. The criminal conviction based on that fact interferes with the freedom of expression.

2. While § 185 of the Code is an adequate legal basis for an interference that meets the requirement of a general provision set by Article 5.2 of the Basic Law, the courts have not adhered to the constitutional standards of interpreting and applying the law. They wrongly considered the expressed opinion as sufficiently individualised.

a) A depreciating expression of opinion that neither names a specific person nor obviously refers to specific persons, but that encompasses a whole group, might constitute an insult to individual members of the group. The bigger the group concerned, the smaller the personal impact on an individual member, the more additional indications for an individualisation are necessary. Under constitutional law it is not permissible to treat an opinion expressed about a group in general as an opinion expressed about a determinable and definite group of people solely based on the fact that the latter is a subgroup of the former.

b) The Local Court did not adhere to these standards. It did not mention the facts necessary to find that the opinion was addressed to a sufficiently determinable and definite group of people. Solely relying on the fact that the local police officers formed a subgroup of the police as whole was not sufficient. The necessary individualisation was not established through the mere encounter between the complainant and the police officers. Simply being present in the public sphere does not suffice to individualise an opinion that, from its wording, is only directed at a group was a whole.

3. As the Higher Regional Court considered the appeal to be manifestly unfounded, its decision is based upon the same mistakes made by the Local Court. Therefore, the court decisions were reversed and the case remitted to the Local Court.

Languages available

Additional Information

ECLI:DE:BVerfG:2015:rk20150226.1bvr103614

Please note that only the German version is authoritative. Translations are generally abriged.