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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 24 January 2018, 1 BvR 2465/13 [CODICES]
Abstract

Third Chamber of the First Senate

Order of 24 January 2018

1 BvR 2465/13


Headnotes (non-official):

1. When the fundamental right to freedom of expression is exercised primarily as a contribution to the formation of public opinion, rather than in private discussion, then the effects of this expression on the rights of others are an inevitable consequence, but not its actual aim. The more a statement affecting the legal interest of another is made in contribution to an issue that concerns the public – rather than privately in pursuit of self-serving goals –, the less the affected legal interest deserves protection.

2. In the context of criminal speech, the violation of specific constitutional law can also be substantiated on the grounds that the purpose of the statement at issue was not accurately assessed.

3. Irrespective of the specific extent of a deceased person’s right to be respected in an individual case, it does not extend farther in any case than the protection of a living person’s honour.



Summary:

I.

By way of constitutional complaint, the applicant challenged his criminal conviction on the basis that it violated his freedom of expression (first sentence of Article 5.1 of the Basic Law).

 

The applicant had been convicted for disparaging the memory of a deceased person in a statement on a website where he regularly publishes articles on the alleged shortcomings of the historical reappraisal of the dictatorship of the German Democratic Republic (GDR). In October 2005, the applicant published a piece on B., a man who, in 1952, was accused of distributing “inflammatory writing”, industrial espionage, dropping “caltrops” on streets around Berlin, throwing “stink bombs” into crowds, as well as participation in the planning of attacks involving explosives. That same year, B. was sentenced to death by the GDR’s highest court for – among other things – “incitement to boycott”, and later executed. The occasion for the applicant’s 2005 piece on B. was a rehabilitation order by the Berlin Regional Court in September 2005 declaring the judgment against B. to violate the rule of law and setting it aside.

The applicant’s online piece began as follows:

               “Food for thought on the subject of terrorism.

    The Federal Republic of Germany’s contribution to the United Nations’ efforts to ban terrorism worldwide: the legalisation of terror against the GDR by means of the rehabilitation of the […] bandit B.

    More on the case of B.

    Order of the Berlin Regional Court of 02.09.2005 on the rehabilitation of the leader of a terrorist organisation, B. …

Further paragraphs containing links to other articles followed, one of which contained excerpts from the 1952 judgment of the GDR’s highest court.

 

Based on this text, the applicant was convicted of disparaging the memory of a deceased person, pursuant to § 189 of the German Criminal Code, and was fined 40 daily rates of EUR 30 by the Berlin Local Court. His appeals on questions of law were rejected.

 

II.

 

The Third Chamber of the First Senate of the Federal Constitutional Court admitted the constitutional complaint for decision, holding it to be manifestly well-founded: the applicant’s criminal conviction violates the his fundamental right to the freedom of expression under the first sentence of Article 5.1 of the Basic Law.

 

The decision is based on the following considerations:

 

The statement in question falls within the scope of protection of the freedom of expression. It is marked by opinion and point of view and must therefore be considered as a value judgment. The scope of protection of the first sentence of Article 5.1 of the Basic Law does not depend on whether the expression is true or false, well-founded or baseless, emotional or rational.

The fundamental right to the freedom of expression does not apply unconditionally, and can be limited in statutory law, such as § 189 of the German Criminal Code in this case which prohibits the disparagement of the memory of deceased persons. However, any limitation to this freedom must be weighed against the legal interest being protected. In the context of the application of criminal law, the Federal Constitutional Court examines whether the balancing between the limitation of the freedom of expression and a conflicting protected legal interest was done in accordance with constitutional standards, taking into account the importance of the right protected by Article 5.1 of the Basic Law. In cases where the statement at issue was made primarily to form public opinion and to contribute to public discussion, it must be recognised that the primary aim of the statement was not the interference with a protected legal interest. The statement must be interpreted carefully, taking into particular account the context in which it was made. The need for protection of the honour of deceased persons decreases over time, and can never be greater than the need for protection of the honour of living persons.

In the case at hand, the courts did not sufficiently take into account the political context of the statement made by the applicant, and attributed too much weight to the opposing right of personality of the deceased. The purpose of the applicant’s publication was not to disparage the person of the deceased, but rather to deplore the political bias and hypocrisy he perceived in the historical reappraisal of the GDR. This type of expression is, in principle, protected under the first sentence of Article 5.1 of the Basic Law, regardless of the veracity or tenability of the statement. The applicant is not under any obligation to recognise B.’s rehabilitation as appropriate, nor to view B.’s actions as contributing to the resistance against dictatorship. The protection of the general right of personality seeks to protect a person’s continuing right to be respected, but does not insist upon a balanced political assessment of historical actions. Finally, 60 years after his death, it was not shown that B. is still generally perceived as an individualised person, instead of as an historical figure.

The applicant’s criminal conviction was set aside, and the case remanded to the Berlin Regional Court.

 

Languages available

Additional Information

ECLI:DE:BVerfG:2018:rk20180124.1bvr246513

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