Irrespective of their motivation, their intrinsic value and correctness, opinions are protected by freedom of expression. Thus, within the limits of Article 5.2 of the Basic Law, extreme right-wing opinions are also protected.
In their legal assessment of an expression of opinion, the courts have to determine its objective meaning, taking into account the circumstances of the individual case from the perspective of an unbiased and reasonable average audience
Furthermore, freedom of expression must generally be balanced against the respective legal interest it affects. If, however, the expressed opinion encroaches upon another person’s human dignity, freedom of expression cannot prevail.
In criminal proceedings, misinterpretations of a statement or of the statutory law at issue can have serious consequences. For that reason, more stringent control by the Federal Constitutional Court is unavoidable in that respect. Considering the potentially intimidating effect of state interferences, particularly effective control under constitutional law is required in order to avoid that the freedom to make such statements is affected in its substance.
In their capacity as members of the association “Augsburg Alliance – National Opposition” (Augsburger Bündnis – Nationale Opposition), the complainants had designed and prepared large-format posters for a campaign week; these posters read as follows:
Repatriation of foreigners
Action weeks 3 June – 17 June 2002
For a liveable German city of Augsburg
Augsburg Alliance – National Opposition.
Subsequently, the Local Court (Amtsgericht) Augsburg sentenced the applicants to fines by pursuant to § 130.2.1.b of the Criminal Code (Strafgesetzbuch), for incitement to hatred. It was held that they had publicly displayed writings which attacked the human dignity of other persons by insulting and maliciously maligning segments of the population, namely foreigners living here.
§ 130.2.1.b of the Criminal Code reads as follows:
1. with respect to written materials […] which incite hatred against an aforementioned group [i.e. a national, racial or religious group, or a group defined by their ethnic origins], segments of the population or individuals because of their belonging to one of the aforementioned groups or segments of the population which call for violent or arbitrary measures against them, or which assault the human dignity by insulting, maliciously maligning or defaming them:
b) publicly displays, posts, presents, or otherwise makes them accessible;
2. […] ,
shall be liable to imprisonment not exceeding three years or a fine.”
The legal remedies lodged by the applicants against the judgments before the Regional Court (Landgericht) and the Bavarian Highest Regional Court (Bayerisches Oberstes Landesgericht) remained unsuccessful. With their constitutional complaints, the complainants claim that the challenged judgments violate their fundamental right to freedom of expression.
The First Chamber of the First Senate of the Federal Constitutional Court set aside the criminal courts’ judgments handed down for inciting hatred against segments of the population pursuant to § 130.2.1.b of the Criminal Code (Strafgesetzbuch), and remanded the case to the original court.
The decision was based on the following key considerations:
The criminal sentences violate the freedom of expression (Article 5.1.1 of the Basic Law).
Criminal courts have to correctly determine the meaning of the expressed opinion that is subject to review. In their interpretation of the opinion, freedom of expression must generally be balanced against the respective legal interest it affects. Admittedly, human dignity will always prevail over the fundamental right of freedom of expression. However, insofar as it is assumed that the exercise of a fundamental right impairs human dignity, the reasons for this assumption have to be set out with particular accuracy. The requirements for an attack on human dignity are met if the person under attack is denied his or her right to live as an equal human being within the public community and if he or she is treated as an inferior being. Accordingly, criminal courts only assume that human dignity is under attack if the slogan “foreigners out” is accompanied by additional circumstances.
The criminal courts’ judgments do not satisfy these constitutional requirements.
The Local Court’s judgment neither meets the requirements for the interpretation of expressions of opinion nor those for the interpretation of the criminal law provision of § 130.2.1.b of the Criminal Code that limits the freedom of expression. In its legal assessment, the Local Court failed to address the fundamental right of freedom of expression entirely.
The judgment of the Regional Court does not meet the requirements under constitutional law either. The Regional Court attributed a meaning to the message on the poster which the poster as such did not have. Neither is such a meaning plausibly substantiated elsewhere within the other findings of the Regional Court in a constitutionally sound manner. The poster designed by the complainants does not, e.g. through the sweeping attribution of socially unacceptable conduct or characteristics, suggest that foreigners are inferior. Nor is such an attribution implied by the use of the word “foreigners” as part of the phrase “repatriation of foreigners” alongside the phrases “German city of Augsburg” and “liveable.” The words “campaign for repatriation of foreigners” does not contain such an attribution either. Indeed, the poster makes it completely clear that the complainants’ initiative intends to “repatriate” foreigners. However, the scope of the advocated repatriation and the means by which the applicants want it to be effected, e.g. whether by providing incentives or by the use of coercive measures, are not indicated. Thus it is not possible to deduce from the poster that foreigners are to be or are to be considered disenfranchised or as objects. In order to arrive at such an interpretation of the poster, the Regional Court would have had to name specific accompanying circumstances according to which it was sufficiently justified to assume that this was the only reasonable interpretation. The Regional Court’s findings do not set out any such accompanying circumstances.
In addition, the Regional Court did not balance the conflicting interests against one another and did not state the grounds for this omission either. Insofar, the judgment rests on the statement that the text of the poster amounted to more than an expression of mere emotional rejection. It is also based on the assumption that the attack was not only directed against certain aspects of the right of personality but was also so undifferentiated in that it related to all foreigners living in Augsburg. These findings, however, do not support the classification of the poster text as a violation of human dignity. The assumption of a violation of human dignity has to be set out with particular accuracy. Therefore, the sweeping nature of a verbal attack does not automatically justify the conclusion that it implies a disparagement denying those concerned their recognition as persons.
The judgment of the Bavarian Highest Regional Court, which essentially merely confirmed the judgment of the Regional Court, does not satisfy the requirements of Article 5.1 of the Basic Law, for it is confined to the finding, expressed in one single sentence only and without providing further grounds to that end, that there was an attack on human dignity.