Federal Constitutional Court - Press office -
Press release no. 129/2009 of 17 November 2009
Order of 4 November 2009 – 1 BvR 2150/08 –
§ 130.4 of the Criminal Code is compatible with
Article 5.1 and 5.2 of the Basic Law
The complainant gave notice, in advance, of his intention to organise an
open-air event under the motto “In Commemoration of Rudolf Hess” (Adolf
Hitler’s deputy in matters of the National Socialist German Workers’
Party between 1933 and 1941) in the town of Wunsiedel once a year until
the year 2010; the event was to take place also on the 20th of August
2005. The planned assembly was banned due to a danger to public security
on the basis of § 15.1 of the Assembly Act (Versammlungsgesetz – VersG)
in conjunction with § 130.4 of the Criminal Code (Strafgesetzbuch –
StGB) and the immediate enforcement of the ban was ordered. § 130.4 StGB
reads as follows: Any person who, publicly or in an assembly, disturbs
the public peace by approving, glorifying or justifying the National
Socialist rule of violence and arbitrariness in a manner violating the
dignity of the victims shall be punished with imprisonment for up to
three years or a fine. The applications for temporary relief and the
action brought thereupon were unsuccessful in all instances.
In his constitutional complaint, the complainant, who died on 29 October
2009, contested § 130.4 StGB itself as well as the interpretation given
to it by the Federal Administrative Court (Bundesverwaltungsgericht) in
the concrete case and challenged among other things a violation of his
fundamental rights of freedom of assembly and freedom of opinion as well
as an infringement of the principle of clarity and definiteness of
statutes.
The First Senate of the Federal Constitutional Court rejected the
constitutional complaint as unfounded inter alia with a view to Article
8.1 of the Basic Law (Grundgesetz – GG) in conjunction with Article 5.1
and 5.2 GG as well as with a view to Article 103.2 GG.
In essence, the decision is based on the following considerations:
On account of the objective function of the constitutional complaint to
safeguard, interpret and further develop constitutional law, the
constitutional complaint can be decided upon in spite of the
complainant’s death. Beyond the complainant’s being personally affected,
the decision aimed for by the Court is intended to clarify the legal
situation concerning expressions of opinion in a large number of future
assemblies and public appearances; apart from this, it is of general
constitutional importance. Moreover, the matter was ripe for decision at
the time of the complainant’s death, the Senate had deliberated it, and
the proceedings had almost been completed.
§ 130.4 StGB encroaches on the area of protection of the freedom of
opinion because the provision makes reference to expressions of opinion
which approve of, glorify and justify the National Socialist rule of
arbitrary force and makes them punishable under certain other
preconditions.
In principle, encroachments on the freedom of opinion are only
permissible on the basis of a general law pursuant to Article 5.2
alternative 1 GG. A law that restricts opinions is deemed impermissible
“special legislation” (Sonderrecht) if it is not drafted in a
sufficiently open manner and if it is from the outset only directed
against certain convictions, attitudes or ideologies. This also applies
to provisions for the protection of young persons and for the protection
of personal honour pursuant to Article 5.2 alternatives 2 and 3 GG. As
regards encroachments on the freedom of opinion, the general nature of
the law hence guarantees, in compliance with the ban on unfavourable
treatment due to political opinions pursuant to Article 3.3 sentence 1
alternative 9 GG, a specific and strict ban on discrimination with
regard to certain opinions.
The Basic Law trusts the power of free discussion as the most effective
weapon also against the dissemination of totalitarian ideologies that
show contempt for humanity. Accordingly, even the dissemination of
National Socialist ideas, which radically call into question the
existing order, does not from the outset fall outside the area of
protection of the freedom of opinion. The free order of the Basic Law
primarily assigns the task of counteracting the associated dangers to
civic commitment in free political discourse.
Thus, it is true that the provision of § 130.4 StGB is not a general law
within the meaning of Article 5.2 alternative 1 GG because it does not
serve the protection of victims of force and arbitrariness in general
and because it deliberately does not focus on the approval,
glorification and justification of the rule of arbitrary force of
totalitarian regimes in general but is limited to positive expressions
of opinion solely with regard to National Socialism.
Even though it is not a general law, § 130.4 StGB is, by way of
exception, compatible with Article 5.1 and 5.2 GG. With a view to the
injustice and terror caused by the National Socialist rule, an exception
to the ban on special legislation is inherent in Article 5.1 and 5.2 GG
for provisions that set limits to the propagandistic approval of the
historical National Socialist rule of arbitrary force. To a large extent
the Basic Law can virtually be regarded as a counter-concept to the
totalitarianism of the National Socialist regime. The experience gained
from the destruction of all achievements of civilisation by the National
Socialist rule of arbitrary force has had a lasting and decisive effect
on the entire post-war order and the integration of the Federal Republic
of Germany into the international community.
This exception, however, does not take back any of the substance of
freedom of opinion. Freedom of opinion guarantees that laws are not
directed against purely intellectual effects of expressions of opinion.
The objective of hindering statements on account of their
incompatibility with social or ethical views eliminates the very
principle of freedom of opinion and is illegitimate. Therefore the Basic
Law does not justify a general ban on the dissemination of right-wing
extremist or National Socialist thought already with regard to the
intellectual effect of its content.
§ 130.4 StGB meets the requirements of the principle of proportionality.
With the protection of public peace, the provision pursues a legitimate
objective. In this context, the protection of public peace is to be
understood, in a restricted sense, as the protection of the peacefulness
of public debate and not as protection against a “poisoning of the
intellectual climate” or against an insult, constituted by totalitarian
ideologies or an obviously erroneous interpretation of history, of the
population’s ability to know right from wrong. Public peace is aimed at
a protection of legal interests at a very early stage which makes
reference to emerging dangers. In this context, it is a constitutionally
viable assessment by the legislature that approving the rule of
arbitrary force of this period will as a general rule appear to today’s
population as an aggression and an attack on those who again see their
worth and their rights called into question, and which, with a view to
historic reality, has a stronger effect than a mere confrontation with
an ideology that is hostile towards democracy and freedom. As regards
its drafting, § 130.4 StGB is also suitable, necessary and proportionate
in the narrower sense. It neither generally bans an approving assessment
of measures taken by the National Socialist regime nor a positive
reference to days, places or forms which are reminiscent of this time
and have a highly symbolic value. Instead, its realisation presupposes
the approval of National Socialism as a rule of arbitrary force in the
shape in which it has become a historical reality. The approval can also
take the shape of a glorifying tribute to a historical person if it
emerges from the concrete circumstances that this person stands for the
National Socialist rule of arbitrary force as such.
Apart from this, § 130.4 StGB is also in harmony with Article 103.2 GG.
It is true that doubts may arise about whether “disturbance of public
peace” as an element of criminal offences that justifies punishment is
compatible with Article 103.2 GG because this concept is open towards
many interpretations and is susceptible to an understanding that does
not take due account of the fundamental significance of the liberty
rights in the order of the Basic Law. However, the element of
“disturbance of public peace” in a criminal law provision does not meet
with objections according to the principle of definiteness under Article
103 GG if it is lent concrete shape by the other elements of the
criminal offence which by themselves can carry the threat of punishment.
In this sense, it has the effect of a corrective element which makes it
possible to enforce fundamental rights assessments in the individual
case. To this extent the legislature was allowed to regard the approval,
glorification or justification of the historical National Socialist rule
of arbitrary force, expressed in public or in an assembly, by itself, at
any rate in principle, as punishable and sufficiently definite.
The confirmation of the ban on an assembly for the “commemoration of
Rudolf Hess” by the challenged decision of the Federal Administrative
Court keeps within the boundaries of evaluation of the
non-constitutional courts. In particular, the assessment of the concrete
case, according to which the assembly for the “commemoration of Rudolf
Hess” would have been tantamount to approving the historical National
Socialist rule of arbitrary force, does not meet with constitutional
reservations.
This press release is also available in the original german version.
|
