Summary:

I.

In her constitutional complaint, the applicant is objecting to the criminal court’s sentencing her to a fine for being an accessory to defamation of the State. This element of the offence is regulated as follows in the Criminal Code (Strafgesetzbuch):

Ҥ 90a
Defamation of the state and its symbols

(1) Whosoever publicly, in a meeting or through the dissemination of written materials (…)

shall be liable to up to three years’ imprisonment or a fine.

(2)…

(3)…”

The subject-matter of the criminal proceedings was a flyer. As a member of the board of a district association of the (right-wing extremist) NPD party, the applicant had taken on external responsibility for the flyer under the law on the press. It had been distributed by persons who remained unknown following the premiere of the play entitled “Georg Elser – allein gegen Hitler” (Georg Elser – alone against Hitler). Entitled “Georg Elser – a hero or a murderer?”, the first two paragraphs of the text are about the “militant Communist” Georg Elser and his attempted assassination of Hitler in the Munich Bürgerbräukeller in 1939, accusing him of having “caused the deaths of eight innocent people”. The text goes on to state:

“How degenerate has this FRG system become to need such a model for its frantic fight against what is right-wing (and therefore against everything that is German!)? It acclaims him in films and plays and forces school pupils to worship him … ? How long will it be until the Communist RAF terrorists are honoured in the same way and their victims are ridiculed? Murderers of innocent people cannot be role models!”

II.

The Federal Constitutional Court has quashed the criminal-court rulings because they violate the applicant’s freedom of expression as guaranteed by fundamental rights, and has remitted the case to the Local Court for a renewed ruling.

In essence, the decision is based on the following considerations:

The constitutional complaint is well founded. The text of the flyer forming the subject-matter of the dispute, which largely contains expressions of opinion, is covered by the protective area of freedom of expression. The latter is not granted without reservation, but finds its limits inter alia in the general laws. In application of the criminal provision that is material here, the impugned rulings do not however do justice to the significance of freedom of expression because they have neglected the fact that the threshold to a violation of the legal interest protected by § 90a of the Criminal Code has not yet been overstepped by the distribution of the flyer.

When interpreting and applying a provision restricting freedom of expression in an individual case, in order to do justice to the significance of the fundamental right in defining values, the content of an opinion as such may not be prohibited. It is only the nature and manner of the communication that may be prohibited if it oversteps the threshold to an imminent violation of legal interests. Unlike the individual citizen, no protection of honour accrues to the State that is guaranteed by fundamental rights. Hence, in a case under § 90a of the Criminal Code, the threshold to a violation of fundamental rights is not overstepped until, because of the concrete nature and manner of the expression of opinion, the State is defamed to a degree that appears to be, at least indirectly, likely to endanger the existence of the Federal Republic of Germany, the functioning of its state institutions or the peacefulness of life in the Federal Republic of Germany. This is not so in the case at hand. On the occasion of the premiere of the play, the flyer forming the subject-matter of the dispute deals with the underlying historical events concerning Georg Elser, and in the context of the public political clash of opinions, puts forward its own evaluation in contrast to the play’s valuation of the “FRG system”, presumed to be different. In a context-related objectifying view, the core statement of the flyer is the sentence “Murderers of innocent people cannot be role models!”. The portrayal of the degeneration of the “FRG system”, by contrast, is not the topical focus of the flyer with regard to either its content or its scope. It also does not relate, for instance, to the constitutional order, but only to one individual political aspect, with the “frantic fight against what is right-wing”. The statements here remain within the arena of mere polemics, so that even an indirect likelihood of the flyer endangering the existence of the State and its institutions or the peacefulness of life in the Federal Republic of Germany appears to be ruled out.