Headnotes (non-official):
1.The first sentence of Article 5.1 of the Basic Law also protects statements of fact, with the exception of statements that are deliberately, or proven to be, untrue. Where it is not possible to separate the evaluative elements of a statement from its factual elements without altering its meaning, the statement as a whole must be regarded as an expression of opinion.
2.Pursuant to the second sentence of Article 5.2 of the Basic Law, the fundamental right to freedom of expression finds its limits in the restrictions imposed by the general laws. An exception to the requirement that laws restricting the expression of opinions be general in nature applies to legal provisions aimed at preventing any propagandistic approval of the National Socialist rule of violence and arbitrary force that took place from 1933 to 1945.
3. When interpreting and applying laws that limit the freedom of expression, regular courts must take due account of the fundamental right thus restricted. Even though the text of the Constitution states that the fundamental right is subject to restricting limits, such limits themselves are not without reservation, which follows from recognizing the paramount significance of said fundamental right for the free and democratic state order.
4. Article 5.1 of the Basic Law is violated where, in the case of ambiguous statements, an interpretation resulting in a criminal conviction was chosen without providing compelling reasons as to why other possible interpretations were disregarded. In particular, courts must take the context and other relevant circumstances into consideration. In this regard, the findings of the regular courts are not binding for the constitutional review proceedings.
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Summary:
I.
The applicant is a free-lance publicist. On his website, he had published an article entitled “Conspiracy”, an excerpt of which read as follows:
“The state itself is not above using means of conspiracy in order to oppress undesirable opinions. Under false pretences, an overt call to “fight against right-wing extremism” is made. Strange as it may seem, but since 1944 not a single Jew was deported to Auschwitz. And since the Allied Forces stopped the bombardments of German cities, synagogues were no longer destroyed, but built. The horrifying anti-Semitism that the “fight against right-wing extremism” so determinedly targets these days refers to nothing but WORDS that – according to those in charge of controlling opinions (“Meinungskontrolleure”) – could possibly displease the Jews.”
In proceedings before the criminal courts, the applicant was convicted for aiding and abetting the incitement to hatred against segments of the population (Volksverhetzung) pursuant to § 130.3 second alternative and § 27 of the Criminal Code, by way of denying the Holocaust committed by the Nationalist Socialist regime; the applicant was sentenced to a fine. Appeals on points of fact and law lodged by the applicant were ultimately unsuccessful. With his constitutional complaint, the applicant challenged the decisions of the criminal courts, claiming inter alia a violation of his freedom of expression (first sentence of Article 5.1 of the Basic Law).
II.
The Federal Constitutional Court (hereinafter, the “Court”) admitted the constitutional complaint for decision to the extent that it was directed against the judgment of the Regional Court (Landgericht) in the appeal on points of fact and law proceedings, and against the order of the Higher Regional Court (Oberlandesgericht) in the appeal on points of law proceedings. The Court granted the relief sought and remanded the matter to the Regional Court for a new decision.
The decision is based on the following key considerations:
The judgment of the Regional Court and the order of the Higher Regional Court violate the applicant’s freedom of expression. The determination whether a statement is protected under the freedom of expression requires that the specific meaning of the statement in question has been accurately established. A criminal conviction in relation to the expression of a statement already violates the first sentence of Article 5.1 of the Basic Law, if as the basis for the conviction, courts rely on an understanding of the statement that is no longer covered by its objective meaning; such violation also occurs where, in the case of ambiguous statements, the interpretation resulting in the conviction was chosen without providing compelling reasons as to why other possible interpretations were disregarded. On the basis of the statement’s wording, courts must give particular consideration to the context and other relevant circumstances of the matter.
The decisions under review do not meet these standards.
Both challenged decisions are based on the assumption that the sentence “Strange as it may seem, but since 1944 not a single Jew was deported to Auschwitz” can only be understood to mean that throughout the entire year of 1944 not a single person of Jewish faith had been deported to the Auschwitz concentration camp. The challenged decisions adopted this interpretation solely based on the argument that the applicant chose to start the sentence in question with the words “Strange as it may seem”. Already with regard to the wording of the relevant statement, the regular courts failed to provide compelling arguments substantiating why a different yet equally plausible interpretation was disregarded, namely that the year 1944 – specifically the month of November – saw the final deportations of Jewish persons to the Auschwitz concentration camp at the hands of the National Socialist dictatorship. The wording by itself allows for both meanings to be attributed to the applicant’s written statement, as “1944” does not refer to a definite point in time, but rather describes a period of time. The beginning of the sentence with the words “Strange as it may seem” alone does not constitute a viable basis for attributing to the applicant’s statement the meaning ascribed to it by the regular courts.
To comprehensibly capture the meaning of the applicant’s statement, it would have been necessary to take the context of the statement into account. The criminal courts would have been required to set out the arguments which, based on a reasonable assessment of all relevant circumstances, support the specific interpretation that would ultimately lead to a criminal conviction. In any case, a mere reference to the applicant’s political views, which seem discernible from the published text as a whole, does not provide a sufficient basis for such an interpretation.
Even though the applicant’s statement was linked to an expression of opinion in quite an apparent manner, the judgment handed down by the Regional Court completely lacks any critical consideration addressing the significance of the fundamental right to freedom of expression in relation to the matter before the criminal courts. In the case at hand, the Regional Court did not merely determine the scope of freedom of expression incorrectly, it disregarded this fundamental right entirely. As the criminal courts have yet to conduct the necessary weighing of interests, the criminal conviction is to be set aside and the matter is remanded for a new decision.
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