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The relationship of freedom of expression and protection of honour when making collective judgments about soldiers

Press Release No. 45/1995 of 02 November 1995

Reference: 1 BvR 1476/91, 1 BvR 1980/91, 1 BvR 102/92, 1 BvR 221/92

The Federal Constitutional Court again reviewed the criminal convictions based on insults to the Bundeswehr (German Federal Armed Forces) or to individual soldiers through statements like “soldiers are murderers” or “soldiers are potential murderers”. The decision will be announced on Tuesday, 7 November 1995.

An order in a similar matter, which was issued by a Chamber of the First Senate last year (Order of 25 August 1994 – 1 BvR 1423/92), sparked major public controversy. Therefore, the Senate considered it appropriate to decide the pending constitutional complaints by way of an order issued by the Senate. 

The decision concerns the four following cases: 

1. In 1988, the complainant witnessed a large NATO manoeuvre for the first time and was deeply dismayed by it. American troops took position in close proximity to the place he was visiting. In reaction to this manoeuvre, he wrote “A soldier is a murder” [in English; instead of “murderer”] on a bed sheet and hung it up at a road junction on the edge of town. A passing Bundeswehr officer lodged an application for prosecution. The complainant was convicted of insulting this officer. 

2. On the occasion of an exhibition organised by the Office of the Armed Forces in 1989, the complainant produced an illustrated pamphlet in which he asked the question: “Are soldiers potential murderers?” giving among other things the following answer: “One thing is certain: Soldiers are trained to be murderers. ‘Thou shalt not kill’ is turned into ‘Thou must kill’. Worldwide. In the Bundeswehr, too…” A Bundeswehr soldier and the Federal Ministry of Defence lodged applications for prosecution. The complainant was convicted of insulting the soldier and the Bundeswehr as a whole. 

3. In 1989, on the occasion of the acquittal of physician Dr A in the so-called “Frankfurt soldier trial” (Frankfurter Soldatenprozess), the complainant wrote a reader’s letter, which was published. He introduced his letter with the following Tucholsky quote “Over there, for four years, there were whole square miles of country where murder was mandatory, while half an hour away it was just as strictly forbidden. Did I say murder? Of course, murder. Soldiers are murderers.” He continued: “Conscientious objectors are recognised in our country only if they reject war service (an expression actually still in the Basic Law) for themselves as despicable, as murder.” (…) He concluded his letter with the phrase: “I declare myself in full solidarity with Mr A and hereby publicly declare: ‘All soldiers are potential murderers!’” One active and two former professional soldiers, a reserve officer and a soldier doing basic military service lodged applications for prosecution. The complainant was convicted of insulting these persons. 

4. In 1989, the complainant, together with another person, displayed a banner in front of a Bundeswehr information stand at a motorcycle exhibition. The banner read “Soldiers Are Potential Murderers”. The bottom third of the word “murderers” had the term “conscientious objectors” written beneath or over it. Four other people took part in the campaign by handing out leaflets criticising that the Bundeswehr presented only the fascination of technology, while saying nothing about the reality of war. Three of the four soldiers working at the information stand lodged applications for prosecution. The complainant was convicted of insulting these soldiers. 

Other proceedings concerning statements of this nature are not pending with the Federal Constitutional Court.