Order of 20 October 1992

R e a s o n s :

A.

1

The constitutional complaint is directed against the confiscation of a video cassette containing a horror film, which the complainant had submitted to the self-regulatory body of the film industry (Freiwillige Selbstkontrolle der Filmwirtschaft – FSK) for rating.

I.

2

1. § 131 in conjunction with § 11(3) of the Criminal Code (Strafgesetzbuch – StGB) governs the criminalisation of the distribution of films depicting violence or cruelties. [...]

3-10

[…]

11

Content can be confiscated in accordance with § 74d(1) first sentence of the Criminal Code if its intentional dissemination would amount to a criminal offence according to the law provided that the disseminating person has knowledge of the content.

12

2. Films to be shown in public are rated in accordance with § 6 of the Act for the Protection of Young People in Public (Gesetz zum Schutze der Jugend in der Öffentlichkeit – JÖSchG). The provision reads as follows:

13

(1) Children and adolescents may only be allowed to be present at public film screenings if the respective films have been approved by the highest Land authority for screening in their presence (...)

14

(2) Films that are likely to impair the physical, mental or emotional well-being of children and adolescents may not be approved for screening in their presence.

15

(3) The highest Land authority labels films with the following ratings:

16

1. ‘Suitable without age restriction’

17

2. ‘Suitable for persons over 6 years’

18

3. ‘Suitable for persons over 12 years’

19

4. ‘Suitable for persons over 16 years’

20

5. ‘Restricted, not to be shown to persons under 18 years’

21

If there is a possibility that a film labelled in accordance with no. 5 of the first sentence falls within the scope of the criminal offences pursuant to § 131 or § 184 of the Criminal Code, the competent law enforcement authority shall be informed.

(4) (…)

22-23

(5)-(7) [...]

24

3. The Länder have concluded an agreement on this matter.

25-34

[…]

35

4. This [Länder Agreement makes reference to the] principles of the self-regulatory body of the film industry.

§ 1

36

The associations of film producers, distributors and cinema owners united in the umbrella association of the film industry (Spitzenorganisation der Filmwirtschaft e.V. – SPIO) (…) voluntarily and by way of self-government conduct an assessment of (…) films to be screened publicly (…) in the Federal Republic of Germany.

(…)

§ 2

37

The self-regulatory body of the film industry must observe the values protected under the Basic Law (Grundgesetz – GG), in particular the constitutional order and the moral law (Art. 2(1) of the Basic Law) as well as the fundamental freedom enshrined in Art. 5 of the Basic Law.

38

In this context films or image media may not

39

a) offend moral or religious sentiments or violate human dignity, have a morally corrupting or brutalising impact, or violate the protection afforded to marriage and the family under the Basic Law; in particular, they may not depict brutal or sexual acts in an exaggerated, lurid or obtrusive way for their own sake;

40

b) and c) (…)

§ 24

41

The assessment of films and image media for adults (aged 18 and above) shall be conducted in accordance with the principles of the self-regulatory body of the film industry by the committee members appointed by the umbrella association of the film industry. In the event of a tied vote, the presiding committee member shall have a casting vote.

42-46

[…]

II.

47

1. a) The complainant, a film distributor, had purchased the rights of use for the cinema version of the feature film ‘The Evil Dead’ (German title: ‘Tanz der Teufel’). The film won several awards and received critical acclaim, although the response was mixed.

48

The film depicts the visit of three women and two men to a forest cabin, where they are troubled by inexplicable events. After playing a tape of incantations, all but one of them undergo a transformation, take on features of non-human beings, and pursue each other with the intention of annihilation. The persons who have not yet become thus possessed try to fight off the assaults, eventually killing or annihilating the possessed. This is depicted in a drastic way.

49

The cinema version and the video version of the film, the latter of which was distributed by another company, were confiscated following a judgment of the Munich I Regional Court (Landgericht) of 7 October 1985. According to the judgment, the film violates § 131 of the Criminal Code because it downplays acts of violence and depicts them in a manner which violates human dignity.

50

b) The complainant made cuts to the film on a video cassette equipped with a counting code and submitted the cleaned-up version to the self-regulatory body of the film industry. It requested that this version be rated ‘Restricted, not to be shown to persons under 18 years’ for the purpose of public screenings [...] in accordance with § 6(3) no. 5 of the Act for the Protection of Young People in Public. The competent working committee [...] rejected this request.

51

Having made further cuts, the complainant resubmitted the film for rating. The working committee deemed the third cut version satisfactory for the desired rating. In view of the previous confiscation, the Permanent Representative of the highest Land authority was, however, only prepared to give a rating to the cinema version provided that the public prosecution office’s central office for combatting materials that glorify violence, are pornographic or in other ways harmful to minors no longer had any criminal law concerns. The central office refused [...] to issue a statement because a preventive assessment could be interpreted as pre-censoring [...].

52

The Permanent Representative passed the video cassette [...] on to the competent highest Land authority for the purpose of rating; the authority thereupon involved the public prosecution office’s central office. The latter was now of the opinion that [...] there was no public interest in criminal prosecution. [...] However, it requested that the cassette be confiscated.

53

2. a) Pursuant to §§ 74d, 76a of the Criminal Code, the Local Court (Amtsgericht) granted the request because it considered any intentional dissemination of the film with knowledge of its content to constitute a criminal offence under § 131(1) no. 4 of the Criminal Code. It based this conclusion on the following reasons: The film contains sequences that depict cruel or otherwise inhuman acts of violence against humans and presents the cruel or inhuman aspects of the acts in a manner which violates human dignity:

54

For instance, a close-up shows how the head of a possessed woman catches fire and how her facial skin burns in the process.

55

Another scene shows how one of the men involved is being choked.

56

There is also a close-up of the men using an axe to dismember the body of a possessed woman, whose limbs continue to twitch.

57-59

[…]

60

Another scene shows how a possessed woman is shot in the head, and how the head is partially torn apart.

61

In another close-up, one of the men involved is shown crushing a hand by hitting it with a rifle butt.

62

According to the Local Court, the film is full of brutal, cruel and tasteless scenes. It depicts particular pain and agony being inflicted on people with the protagonists acting with a callous and merciless attitude. The film’s contemptuous, ruthless and indifferent tendency towards humanity finds tangible expression in the depiction of the violent events. The incriminating scenes are hardly linked by the scanty plot. Crude acts of violence are shown in an obtrusive and lurid manner without any socially meaningful motivation, merely for their own sake, for entertainment and the stimulation of emotions. The depiction of excessive violence and cruelty is thus elevated to an end in itself. The film does not critically reflect the meaning and causes of this plot. According to the Local Court, there are no indications that the film constitutes an artistic presentation meriting protection that could outweigh the concerns raised; the film as a whole only serves to depict acts of violence and to achieve horror effects. In particular, it does not provide any food for thought on the problem of the causes of cruel violence. The cuts made in the meantime do nothing to remedy this situation.

63

b) The Regional Court rejected as unfounded the immediate complaint against the order of the Local Court [...]:

64-65

[…]

66

The Regional Court held that even with the cuts, the scenes depicting killings and the infliction of injuries are still fully shown; moreover, it is precisely the stringing together of such scenes [...] in their entirety that gives the film its distinct character. They are the actual core of the film, which relies exclusively on these brutal and cruel scenes of torture, injury and killing.

67

The Regional Court concluded that acts of violence against humanoid beings (so-called zombies) also fall within the scope of § 131 of the Criminal Code if they give the impression of human behaviour; this also encompasses the four possessed persons in the film. At the beginning, these are portrayed as real, completely intact human beings, who change their outward appearance in the course of the plot, but remain the same individuals both from the point of view of the film characters and from that of the viewer. [...] The prohibition of cruel acts of violence against humans must not be circumvented by portraying them as possessed or unreal half-beings. Moreover, the film also contains acts of violence against the persons not yet possessed.

68

In the view of the Regional Court it was not necessary to assess whether the film was to be classified as a work of cinematic art. Freedom of the arts is not guaranteed without limitation; rather, it is limited by the provisions of the Basic Law. The result of the required balancing against other fundamental rights guarantees is that, even if one did consider the film to be predominantly a work of art, freedom of the arts must stand back if it violates another person’s human dignity. [...].

69

According to the Regional Court, less intrusive means are not available as the situation could not be remedied by further cuts.

III.

70

The complainant claimed:

71

1. The challenged orders violate the prohibition of censorship pursuant to Art. 5(1) third sentence of the Basic Law. [...]

72

[…]

73

2. The confiscation violates freedom of the arts as guaranteed in Art. 5(3) first sentence of the Basic Law.

74

According to the complainant, the film is a work of art; the courts did not interpret it in a manner appropriate to the work, but largely misunderstood it. The horror film genre is a traditional cultural asset, obeys its own laws and is received by the viewer in a certain way. This includes, for example, the transformation of the characters, who change their nature in the typical manner of horror films and thus lose their identity. The complainant contends that horror films present established characters as synonymous with certain primal fears of humans in a formulaic manner. The confiscated film corresponds to this formula. It does not depict acts of violence against humans, but only against humanoid beings. There is no violation of a specific person’s human dignity, especially not of the dignity of the viewers who voluntarily watch the film.

75

3. The complainant asserts that § 131 of the Criminal Code, on which the criminal court decisions are based, violates Art. 103(2) of the Basic Law due to its lack of specificity – also with regard to the prohibition against punishment by analogy in criminal law (nulla poena sine lege stricta). The complainant claims that it cannot be inferred with the necessary certainty what conduct is punishable under criminal law.

76

4. […]

77

5. […]

IV.

78

1. The Bavarian Ministry of Justice considers the constitutional complaint to be unfounded.

79-84

[…]

85

2. […]

86

3. The Senate watched the film ‘The Evil Dead’ in the version confiscated by the Local Court.

B.

87

The constitutional complaint is admissible.

88

[…]

C.

89

The constitutional complaint is well-founded. The challenged orders violate the complainant’s fundamental right under Art. 5(1) second sentence and its right under Art. 103(2) of the Basic Law.

90

Where the constituent element ‘in a manner which violates human dignity’ is concerned, § 131(1) no. 4 of the Criminal Code – on which the decisions are based – is only compatible with the Basic Law if interpreted in accordance with the reasons to this order.

I.

91-93

[…]

II.

94

1. Insofar as the complainant asserts a violation of Art. 103(2) of the Basic Law, the subject of review is § 131(1) no. 4 of the Criminal Code to the extent that the Local Court and the Regional Court relied on this provision in their decisions. They based their decision on the presumption that the film submitted by the complainant to the self-regulatory body of the film industry was intended for dissemination and depicts inhuman acts of violence against humans in a way which presents the cruel or inhuman aspects of such acts in a manner which violates human dignity.

95

2. Art. 103(2) of the Basic Law obligates the legislator to define the elements of a criminal offence with sufficient specificity so that the scope and limits of the acts covered by the criminal law provision can be recognised and determined by interpretation. This obligation serves a dual purpose. On the one hand, it is about protecting the persons addressed by the provision as required under the rule of law: everyone should be able to foresee what conduct is prohibited and punishable. On the other hand, it is supposed to ensure that only the legislator decides what constitutes a criminal offence (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 71, 108 <114>). In this respect, Art. 103(2) of the Basic Law contains a strict requirement that interferences be based on a statutory provision, which prevents the executive and the judiciary from deciding on the requirements for a punishment themselves (Federal Constitutional Court, loc. cit.).

96

This does not preclude the legislator from using terms that are particularly reliant on judicial interpretation. In criminal law, like in other areas of law, the legislator is faced with the necessity of taking into account the diversity of situations that occur in everyday life. Due to the general and abstract nature of criminal law provisions, it is also unavoidable that in borderline cases it may be doubtful whether specific conduct already or still falls within the ambit of the statutory offence. As a general rule, the persons addressed by a provision must be able to foresee from the provision’s wording whether specific conduct is punishable. In borderline cases, this ensures that they will at least be able to discern whether there is a risk of criminal punishment. In light of this, whether a criminal law provision meets the specificity requirements is primarily determined by the wording of the statutory requirements as it is recognisable and comprehensible to the persons addressed by the provision and which defines the absolute outer limits of permissible judicial interpretation (cf. BVerfGE 75, 329 <341>; 85, 69 <73>).

97

3. Measured against these principles, the challenged criminal law provision is still sufficiently specific with regard to the constituent element ‘in a manner which violates human dignity’ when interpreted in conformity with the Constitution. [...] However, the interpretation and application of § 131(1) no. 4 of the Criminal Code by the Local and Regional Court that confiscated the edited version of the film submitted by the complainant violates Art. 103(2) of the Basic Law because they extended the wording of the provision in a constitutionally impermissible manner.

98

a) § 131 of the Criminal Code does not lack specificity simply because of an excessive accumulation of constituent elements that require interpretation [...].

99

Terms requiring interpretation in view of the question of whether the criminal provision is sufficiently specific in light of Art. 103(2) of the Basic Law include ‘human’, ‘cruel’, ‘inhuman’, ‘act of violence’, ‘depict’ and ‘in a manner which violates human dignity’. This is a manageable number of normative terms, the content of which – with the exception of the last-mentioned term – can easily be determined by means of conventional application of the law.

100

aa) The constituent element ‘human’ is sufficiently specific because it is unequivocally linked to the biological concept of a human being. By contrast, the term cannot be understood to encompass humanoid beings that are the product of a person’s imagination as has been advocated during the deliberations on the Act on the Revision of the Protection of Young People in Public ([…]). The literal meaning itself rules out such an understanding. A different interpretation of the term ‘human’ would violate the prohibition against punishment by analogy in criminal law (nulla poena sine lege stricta) pursuant to Art. 103(2) of the Basic Law ([...]). If the legislator had wanted to criminalise the cinematic depiction of violence against humanoid beings (in particular so-called zombies), this should have been expressed in the wording of the provision.

101

The necessary distinction between humans and humanoid beings does not exclude the possibility that there may be doubts as to whether the victims of violent acts shown in a film are human or humanoid beings in the individual case. This does, however, not mean the provision in itself lacks specificity. It is for the criminal courts to apply the law to a specific case. If they in this case came to the conclusion that the beings depicted in the film, who are at first clearly human and then become possessed in the course of the plot, nevertheless remain human beings from the perspective of the viewer and according to the film’s meaning, this is an assessment under ordinary law which is generally excluded from review by the Constitutional Court (cf. BVerfGE 18, 85 <92>).

102

bb) It is true that the constituent element ‘cruel’ in § 131 of the Criminal Code is not as clearly definable as the term ‘human’ based on its wording. However, this does not mean that this constituent element lacks the specificity required by Art. 103(2) of the Basic Law. This term is also listed in § 211 of the Criminal Code as one of the alternative constituent elements of murder under specific aggravating circumstances, and – according to prevailing opinion – is to be interpreted in the same way as in § 211 ([...]). According to this definition, an act is cruel if particular pain or agony of a physical or mental nature is inflicted and it reveals a brutal, merciless attitude on the part of the person committing it ([...]).

103

cc) The constituent element ‘inhuman’ is intended to express that the offender acts with a contemptuous, ruthless, crude or merciless attitude ([...]), for example because it gives the offender pleasure to mistreat or kill people in a completely unscrupulous and cold-blooded manner. With regard to this definition, too, there is broad agreement in legal scholarship ([…]).

104

dd) To be sure, the term ‘act of violence’ in § 131(1) of the Criminal Code has been described as elusive ([...]). In respect of the specificity of the provision, there are, however, no objections to understanding the term to mean an aggressive, active action which, by using or setting in motion physical force, directly or indirectly affects the body of a person in a way that impairs or specifically endangers their physical or mental integrity ([...]).

105

ee) Given the wording, the interpretation of the constituent element ‘to depict’ does not present any constitutional difficulties.

106

b) The situation is different with regard to the ‘human dignity’ alternative, which was introduced by the Act on the Revision of the Protection of Young People in Public of 25 February 1985 [...]. This constituent element of the offence is described as problematic not only because of its lack of specificity, but also because the violation of human dignity is hardly suitable for differentiation when it comes to depictions of violence ([...]). [It is assumed that this is] a questionable borderline case of a legal provision being legitimate in itself but so ‘blurry’ that it is hardly manageable [...]. Despite this, the provision is sufficiently specific when interpreted in conformity with the Constitution.

107

aa) By using the term human dignity, the provision recognisably links to the substance of Art. 1(1) first sentence of the Basic Law. The Federal Constitutional Court sees human dignity as the supreme constitutive principle within the system of fundamental rights (cf. BVerfGE 6, 32 <36, 41>; 45, 187 <227>). Human dignity entails a right to be valued and respected as a person in society (sozialer Wert- und Achtungsanspruch); this right precludes turning a person into a mere object of state action or exposing them to treatment which generally calls into question their quality as a conscious subject. Human dignity in this sense not only means the dignity of the individual, but also the dignity of human beings as a species. Every person possesses human dignity, regardless of their characteristics, accomplishments or social status, even if they cannot act sensibly due to their physical or mental state. Even ‘undignified’ behaviour does not result in the forfeiture of human dignity. No one can be deprived of it. A violation of the right to be respected as a person deriving from human dignity, however, is possible.

108

bb) The specificity of the constituent element relating to human dignity in § 131(1) of the Criminal Code is unproblematic insofar as it covers cases in which the cinematic depiction violates the dignity of specific persons.

109

However, the provision’s purpose is not limited to that scenario. Rather, it follows from its wording and systematic context that the provision is intended above all to cover cases in which the depiction of the cruel or inhuman aspects of an act is designed to create or reinforce an attitude in the viewer that denies the right to be valued and respected as a person that is accorded to all human beings. This happens in particular when cruel or otherwise inhuman acts are shown in order to give the viewer a sadistic pleasure in the events or to make people or groups of people appear worthless. Such a tendency includes the idea of human beings as mere objects that are at someone else’s disposal and can be (mis)treated at will. Therefore, an inhuman depiction of purely fictional events can also violate the requirement to respect human dignity. It is also likely to encourage a general brutalisation, reduce the viewer's respect for the dignity of fellow human beings and thus also increase the risk of specific violations of this guarantee. The legislative materials confirm that such depictions are to be covered by the constituent elements of the offence as well. For example, the report of the responsible committee [of the German Bundestag] cites the lingering on an inhuman act for ‘pleasure’ as an example of the provision’s scope of application ([...]).

110

c) However, the Local and Regional Court based their decisions on an interpretation of § 131(1) of the Criminal Code that is no longer compatible with the principle of specificity following from Art. 103(2) of the Basic Law. Their view that the depiction violates human dignity is essentially based on the fact that crude acts of violence are shown in an obtrusive and lurid manner without any socially meaningful motivation, merely for their own sake. They thereby interpret the constituent element ‘in a manner which violates human dignity’ in a way that blurs the provision’s scope of application. Acts of violence in films do not per se violate human dignity. This follows from the fact that the depiction of events in a manner which violates human dignity is mentioned in the offence as a distinct constituent element that must be fulfilled in addition to the depiction of violence. For this reason, neither the accumulation nor the obtrusive and lurid depiction of acts of violence can in themselves fulfil the constituent elements of the offence. In any case, if these criteria were decisive, the acts prohibited by § 131(1) of the Criminal Code could not be distinguished clearly enough from depictions of violence in adventure or crime films, for example, which are regarded as permissible.

111

[...] Moreover, the application of the law to the specific case shows that the courts based their decisions on an impermissibly broad understanding of the criminal provision. There are no findings substantiating the fact that the viewer is encouraged to approve of the scenes of horror. Rather, it is likely that the viewer will not identify with the violent possessed, but with the untransformed people fighting against them. From the overall impression of the film, it is quite possible that viewers will indeed regard the events as ridiculous and grotesque due to their bizarre exaggeration. Such forms of entertainment also exist – albeit to a lesser extent – in other products from the fantasy genre such as horror or ghost stories. If these were to be covered by the human dignity alternative as well, this constituent element would no longer be suitable for defining what amounts to criminal behaviour.

III.

112

The challenged decisions violate Art. 5(1) third sentence of the Basic Law and thereby violate the complainant’s fundamental right under Art. 5(1) second sentence of the Basic Law.

113

1. The Constitution only prohibits pre-censoring, i.e. a preventive procedure before the conclusion of which a work may not be published (cf. BVerfGE 33, 52 <71 ff.>; 73, 118 <166>; 83, 130 <155>).

114

2. Such a procedure is not required by law.

115

a) Film distributors are under no obligation to undergo an approval procedure before a public screening. § 6 of the Act for the Protection of Young People in Public does not prohibit the dissemination of unrated films. Rather, the [...] prohibition is only directed against the presence of children and adolescents at public screenings if the film has not been approved for screening in their presence. Film distributors can refrain from undergoing the rating procedure if they only want to screen the film in the presence of adults.

116

b) However, § 6(3) no. 5 of the Act for the Protection of Young People in Public also provides for the rating ‘Restricted, not to be shown to persons under 18 years’, which is not necessary for the purpose of the protection of minors, because the absence of a rating would already indicate that the film may not be screened in the presence of minors. In practice, this statutory provision has led to film distributors also requesting a rating if they only intend to screen the film in the presence of adults. This is because through the rating procedure distributors obtain, according to the practice of the competent bodies, an assessment of the film under criminal law and thus considerably reduce the risk of exposing themselves to criminal prosecution. This simultaneously facilitates the distribution of films because the owners of cinemas can also assume that there is a smaller risk of criminal prosecution if the film has been rated.

117-120

[…]

121

c) There is no need to decide on the question of whether [this] procedure violates the prohibition of censorship, taking into account its practical effect, or whether it is to be regarded as unobjectionable because everyone is free to distribute a film without rating. Likewise, there is no need to assess whether the legal bases of the procedure meet constitutional requirements. In any case, the rating procedure must not be conducted in a way that prevents the applicant from freely deciding whether or not to distribute the film submitted for rating. If applicants request the rating ‘Restricted, not to be shown to persons under 18 years’ because they only want to distribute a film that has been rated, this does not yet amount to a decision on whether to distribute the film. If, in such a case, the confiscation of the film prevents its distribution without the applicant having first been given the opportunity to refrain from distributing it due to the criminal law concerns that have become apparent in the rating procedure, this measure is tantamount to censorship and violates Art. 5(1) third sentence of the Basic Law.

122

The Local and Regional Court failed to recognise this by confiscating the film even though the complainant was still trying to have it rated and had not yet decided to distribute it. [...]

123

If the state provides a procedure, as is the case for the rating of films, whose actual effect is to make a ‘preliminary assessment of criminal liability’, it may in any case not use it to prevent the distribution of the film at this stage already. Otherwise, the applicant [...] is deprived of the freedom to decide to distribute the film despite the risk of punishment under §§ 131, 184 of the Criminal Code.

IV.

124

As the constitutional complaint is successful for the reasons set out above, it is not necessary to decide whether the challenged orders also violate the complainant’s fundamental right to freedom of the arts under Art. 5(3) first sentence of the Basic Law.