FEDERAL CONSTITUTIONAL COURT

– 1 BvR 444/13 –

– 1 BvR 527/13 –

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaint

– 1 BvR 444/13 –,

– 1 BvR 527/13 –

the Third Chamber of the First Senate of the Federal Constitutional Court with the participation of Justices

Vice-President Kirchhof,

Masing,

Baer

unanimously held on 24 July 2013:

1. The Judgment of the Potsdam Local Court of 26 March 2012 – 82 Ds 1958 Js 23018/10 (213/11) – and the Order of the Potsdam Regional Court of 8 January 2013 – 26 Ns 95/12 – violate each complainant’s fundamental right under Article 5(1) first sentence of the Basic Law (Grundgesetz – GG).

2. The decisions are reversed. The matters are remanded to the Potsdam Local Court for a new decision.

3. The application for a preliminary injunction in the proceedings 1 BvR 444/13 has thus become moot.

4. The Land of Brandenburg shall reimburse the complainants for their necessary expenses.

5. The value of the matter in terms of lawyers’ fees for each of the two constitutional complaint proceedings is set at EUR 25,000 (in words: twenty-five thousand euros).

R e a s o n s :

I.

The constitutional complaints concern the complainants’ convictions for defamation offences.

1. In 2010, the complainants worked at the B. Refugee Council, which considers itself to be a lobby organisation for refugees and as such is active in combating conditions and practices that it deems to be discriminatory against refugees. Since 1997, the B. Refugee Council “awarded” an annual “Denkzettel in matters of structural and systemic racism” (“Denkzettel für strukturellen und systeminternen Rassismus ”) [translator’s note: “Denkzettel” refers to a warning or a reprimand and sometimes also an exemplary punishment. Its purpose is to make somebody think about their actions or behaviour or to teach them a lesson ]. The complainants were jointly responsible for the 2010 Denkzettel , which was also published online.

The online version of this Denkzettel reads as follows:

(…) This year, on the occasion of the Anti-Racism Day 2010, the Denkzettel in matters of structural and systemic racism goes to the Legal Office of the City of B.

In a legal opinion, the Legal Office accuses the deaf refugee Mr C. (abbreviation in the original) of having feigned his deafness for years, even though this condition has been certified by a medical specialist. To justify the allegation of feigned deafness, the Legal Office additionally refers to Mr C’s longstanding sporting activities with the B. Sports Club. (…). This legal opinion deliberately and wilfully ignores available facts in order to be able to bring forward arguments substantiating the refusal of a residence permit.

Background:

Mr C., who is deaf, fled Sierra Leone for Germany in 1999 (…). In B. he quickly found support from members of the local deaf association, who helped him learn German sign language. By now, he can read and write several words in German as well. He has been playing football with the B. Sports Club for several years. (…) Now, in January 2010, in court proceedings for obtaining a residence permit, the Legal Office of the City of B. accuses him of being quite capable of hearing: “Yet his many sporting activities make it clear that he is certainly able to make himself understood and most definitely capable of understanding what is being said to him at a certain volume level.”

It is completely incomprehensible how such an insinuation can still be brought up after ten years, especially since expert medical statements, attesting to Mr C.’s complete deafness, have been provided to the Local Immigration Authority (Ausländerbehörde ); in any case, the Legal Office’s argumentation defies all logic. The Legal Office also alleges that Mr C. has writing knowledge of his native language, which is deduced from the fact that he was able to learn German letters.

The B. Refugee Council has no sympathy at all for how such utterly unrealistic und illogical conclusions can be drawn based on a desk-review of files, and then used to assess the case of a human person.

Due to this inhumane and discriminatory treatment of the refugee Mr C, which disregards any facts whatsoever, this year’s Denkzettel in matters of structural and systemic racism is awarded to the Legal Office of B., and specifically to the responsible desk officer Ms B. (full surname given in the original).

2. These statements led to the complainants’ defamation conviction under §§ 186 and 194 of the Criminal Code (Strafgesetzbuch - StGB). In the challenged judgment of the Local Court, they were sentenced to a fine of 15 daily units of EUR 60 each. In the challenged order, the Regional Court did not admit the complainants’ respective appeals on points of fact and law against this judgment for decision, and dismissed them as inadmissible on the grounds that they were manifestly unfounded under § 313(2) of the Code of Criminal Procedure (Strafprozessordnung - StPO).

a) The reasons for the Local Court’s judgment may be summed up as follows:

The Denkzettel alleges that the Legal Office deliberately and wilfully ignored available facts in order to be able to bring forward arguments substantiating the refusal of a residence permit. This alleged inhumane and discriminatory treatment of the refugee Mr C. is said to disregard any facts whatsoever, and is cited as the reason why that year’s Denkzettel in matters of structural and systemic racism was awarded to the Legal Office of the City of B., and specifically to the responsible desk officer, Ms B. The statements comprised in the Denkzettel contain the assertion of facts, the veracity of which is open to proof, that the desk officer Ms B., in her capacity as an employee of the Legal Office of the City of B., knowingly concealed facts when giving evidence to the administrative court, and that she did that in order to be able to bring forward arguments for the refusal of a residence permit. According to the Denkzettel , these actions promote structural and systemic racism.

In the opinion of the Local Court, this assertion of facts is not demonstrably true. The claim by the Local Immigration Authority that Mr C. was able to perceive speech when spoken at high volume was contradicted by two expert medical statements which attested to Mr. C.’s profound deafness in both ears and, among other things, found that Mr C. was able to perceive sounds by bone conduction in the 45 to 60 kHz range. However, these expert medical statements had not been available to the responsible desk officer when she was preparing her opinion for the Legal Office. The Local Court further found that the desk officer’s implausibly reasoned conclusion, namely that Mr C. was allegedly able to read and write in his native language and would thus be able to obtain from his embassy a document stating his origin, did not justify the assumption that the desk officer deliberately concealed facts in order to have the residence permit refused, as she expressly described her conclusion as an “allegation”.

The Local Court found that the statements in question were not justified. The complainants had indeed attacked what they saw as racism demonstrated by a public authority and its employees and thus addressed fundamental interests that concern everyone in a democratic state under the rule of law. However, the defamatory statements had not been a suitable means to defend these legitimate interests, because there was no opportunity to advance the legitimate interests and the statements did nothing to change the Legal Office’s conduct in the court proceedings. The Local Court also found that the defamatory statements had not been necessary, as criticism of the Legal Office’s conduct did not require resorting to a defamatory statement. Moreover, the statements by the complainants had given the impression that the desk officer was pursuing personal and unjustified objectives. Although their statements were not entirely without factual basis or made up out of thin air, ultimately, the complainants should have known that important parts of the files had not been available to the desk officer when she was processing the matter and that she had not deliberately and wilfully ignored facts, if they had researched the matter thoroughly. In the opinion of the Local Court the complainants had been under a particular obligation to carry out thorough research in the present case, especially given their intention to publish the statement on the Internet.

b) The Regional Court supplemented the findings of the Local Court to the effect that even though the statements in question may also comprise evaluative elements, the assertion of the fact that the desk officer had deliberately and wilfully given a false statement stands out. In all matters of public interest and in the competition of political opinions, the Regional Court found, there is indeed a presumption in favour of freedom of expression; most notably, it should be taken into account that the right to criticise - including in a scathing manner - measures taken by public authorities without fear of sanctions is one of the core elements of the freedom of expression. According to the Regional Court, however, this precedence of the freedom of expression is subject to restrictions if the statements in question primarily aim at personal defamation, or if assertions of facts are not suitable to make a legitimate contribution to the formation of opinions. In the present case, according to the Regional Court, the desk officer had been personally targeted, and the complainant together with the person jointly accused had demonstrated a high level of intentional and culpable carelessness in dealing with the truth. Their defamatory statements were not suitable to make a legitimate contribution to the formation of opinions. Moreover, the defamation was not an appropriate means for defending the interests of others. In the opinion of the Regional Court, in the exchange of opinions on topics of public interest, even people working in positions of responsibility for the public community are entitled to protection against being bombarded with indiscriminate insults, existence-threatening public allegations or arbitrary devaluations, or against being silenced.

3. In their constitutional complaint, substantiated in detail, the complainants claim a violation of their fundamental right to freedom of expression under Art. 5(1) first sentence GG.

The complainant in the proceedings 1 BvR 444/13 has deferred his application for a preliminary injunction, lodged at the same time, pending the decision in the principal proceedings.

4. The Ministry of Justice of the Land of Brandenburg has been given the opportunity to submit a statement. It has declined to do so. The files of the initial proceedings have been submitted to the Federal Constitutional Court for decision.

II.

The constitutional complaints are admitted for decision pursuant to § 93c(1) first sentence in conjunction with § 93a(2) letter b BVerfGG).

1. The constitutional issues determining the outcome of the constitutional complaints have already been decided by the Federal Constitutional Court (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 61, 1 <7 et seq.>; 90, 241 <246 et seq.>; 93, 266 <292 et seq.>). Specifically, this concerns the impact of the fundamental right to freedom of expression on the interpretation and application of the provisions of §§ 185 et seq. StGB (cf. BVerfGE 82, 43 <50 et seq.>; 85, 23 <30 et seq.>; 93, 266 <292 et seq.>).

2. Accordingly, the constitutional complaint is admissible and manifestly well-founded within the meaning of § 93c(1) first sentence BVerfGG. The challenged decisions violate the complainants’ fundamental right under Art. 5(1) first sentence GG.

a) By assuming in a manner that is untenable under the Constitution that assertions of facts within the meaning of § 186 StGB are involved and not value judgments which are predominantly characterised by the element of taking a position or of holding a view, and are thus deemed to be opinions in the narrow sense, the courts are curtailing the scope of protection guaranteed by the fundamental right with regard to the statements in question, which are supposedly defamatory and not demonstrably true (cf. BVerfGE 61, 1 <7 et seq.>; 90, 241 <247 et seq.>).

The question as to whether a statement should be seen predominantly as a statement of opinion or a statement of facts crucially depends on the overall context in which the statement in question was made. Looking at one disputed part of a statement in isolation generally does not meet the requirements of a reliable determination of meaning (cf. BVerfGE 93, 266 <295>). Separating the factual and evaluative elements of a statement is only permissible in an individual case if this does not distort the meaning. If it is not possible to separate these elements, the statement as a whole must be regarded as a statement of opinion for the purpose of effective protection of fundamental rights; otherwise there is a risk of significant limitation of the protection of fundamental rights (cf. BVerfGE 61, 1 <9>; 90, 241 <248>). In the case of opinions in the narrow sense, there is a presumption in favour of free speech when balancing the freedom of expression and the legal good in whose interests freedom of expression may be restricted by a general law such as §§ 185 et seq. StGB, particularly in the competition of public opinions. This, however, does not apply to statements of facts to the same degree (cf. BVerfGE 54, 208 <219>; 61, 1 <8 et seq.>; 90, 241 <248>).

In light of its purpose and systematic context, the statement that the Legal Office was deliberately and wilfully ignoring facts in order to be able to bring forward arguments for the refusal of a residence permit is a value judgment summarising the background events. The expressions “deliberately” and “wilfully” are as such complex legal terms which require an evaluative consideration and imply a value-based use when applied in a non-legal text. Moreover, the subsequent – and essentially accurate – description of the background context includes not only an account of what actually happened but also terms such as “completely incomprehensible”, “defy[ing] all logic” and “inhumane and discriminatory”. When assessed with the necessary degree of objectivity, the introductory sentence, which was deemed punishable, is connected to these expressions in a primarily content-related context. The courts fail to recognise this aspect. Initially they consider the introductory sentence in isolation from the overall context, then link it to the identification by name of the desk officer at the end of the text, before finally drawing the conclusion that the complainants were primarily making an assertion of facts the veracity of which is open to proof, stating that the official in question deliberately and wilfully concealed facts from the administrative court or made a false statement, respectively. This constitutes a selective and distorting interpretation of the text, and thus does not meet the constitutional requirements.

b) Moreover, by unequivocally qualifying the statements in question as abusive criticism, the Regional Court has curtailed the scope of protection under the freedom of expression. In this regard, it has overstretched the concept of abusive criticism in a manner which is impermissible under the Constitution. Consequently, the Regional Court failed, at least to the extent required, to balance the protection of reputation on the one hand and the freedom of expression on the other hand, in a manner that gives due consideration to all aspects of the specific case. This, too, constitutes a serious deficit under constitutional law (cf. BVerfGE 93, 266 <294>).

Abusive criticism has to be defined narrowly. In the event of conflicting fundamental rights, the system of constitutional law requires that these be balanced with each other, taking into consideration all the essential aspects of the case. Excessive or even aggressive criticism alone does not render a statement abusive. In addition, the primary intention of the statement must be aimed at personal defamation rather than at promoting a discussion on the subject matter. The statement must be characterised by a level of personal devaluation that goes beyond even polemical or scathing criticism. Therefore, a crucial element of defamation is a personal insult which completely eclipses any discussion of the matter in hand. A balancing in light of all aspects of the specific case may not be foregone on the basis of a legal presumption but in exceptional cases. This exception will mostly be limited to cases involving so-called private feuds, but will rarely apply to statements concerning questions of public interest (cf. BVerfGE 82, 272 <283 and 284>; 93, 266 <294, 303>; BVerfG, Order of the First Chamber of the First Senate of 12 May 2009 – 1 BvR 2272/04 –, Neue Juristische Wochenschrift - NJW 2009, p. 3016 <3018>).

There is no doubt that the Denkzettel in dispute deals with a matter of public interest. The focus of criticism is not Ms. B as a person, but the Legal Office of the City of B.; Ms B is addressed solely in her capacity as a desk officer of the relevant Legal Office. The specific statements that were considered punishable – however scathing and excessive they may be and however inappropriate it may seem to identify a desk officer by name – are not devoid of any objective relationship to the events being criticised.

c) The deliberations of the Local Court, which balanced the interests taking all the aspects of the specific case into consideration under § 193 StGB, do not accord sufficient weight to the freedom of expression, even in light of the – incorrect – assumption that the statement constitutes an assertion of facts. This also applies to the Regional Court’s alternative and brief considerations regarding proportionality. It must be taken into consideration that the right to express even scathing criticism of measures taken by public authorities, without fearing state sanctions, is a core element of the freedom of expression and thus great importance has to be attached to it (cf. BVerfGE 93, 266 <293>). Moreover, in view of the factual circumstances established by the courts, in particular regarding the background events, the degree to which the desk officer has been defamed is not so severe that it would outweigh the freedom of expression in the case at hand. In particular, it would violate the freedom of expression to restrict the complainants in their criticism to what is deemed necessary for criticising a state under the rule of law, and thus deprive them of the right of polemical intensification., The Regional Court essentially based its decision on the fact that the desk officer concerned was supposedly bombarded with indiscriminate insults, existence-threatening allegations or arbitrary devaluations, or even silenced. This result cannot be inferred from the facts established by the courts as a basis for the challenged decisions or from the assessment of those facts.

d) The challenged court decisions are based on a misapprehension of the significance and scope of the fundamental right to freedom of expression under Art. 5(1) first sentence GG. It cannot be ruled out that the Local Court and the Regional Court would have reached different conclusions had they taken the constitutional requirements into consideration in their balancing of interests within the scope of §§ 185 and 193 StGB on the basis of the above deliberations.

3. The decision on the refund of necessary expenses follows from § 34a(2) BVerfGG. The value of the matter in dispute is determined on the basis of § 37(2) second sentence in conjunction with § 14(1) of the Law on the Remuneration of Attorneys (Gesetz über die Vergütung der Rechtsanwältinnen und Rechtsanwälte – RVG) (cf. BVerfGE 79, 365 <366 et seq.>). The decision in the main proceedings has at the same time rendered moot the application for a preliminary injunction.