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The relationship of freedom of expression and protection of honour when making collective judgments about soldiers
Press Release No. 46/1995 of 07 November 1995
Order of 10 October 1995
1 BvR 1476/91, 1 BvR 221/92, 1 BvR 102/92, 1 BvR 1980/91
In the four constitutional complaint proceedings concerning statements such as “soldiers are murderers” or “soldiers are potential murderers”, the Federal Constitutional Court – First Senate – reversed the complainants’ convictions. However, the complainants are neither acquitted nor did the Federal Constitutional Court declare that it was admissible to equate soldiers with murderers. Rather, the convictions were reversed because the criminal courts had in part based these on considerations incompatible with the fundamental right to freedom of expression according to the established case-law of the Federal Constitutional Court. The matters were remanded to the competent criminal courts. They must decide anew, taking into account the requirements of Art. 5(1) first sentence of the Basic Law (Grundgesetz – GG). In doing so, no particular outcome is required. In the case of complainant no. 2, the decision is unanimous; in the other cases, the decision is based on a 5 to 3 majority.
The decision of the Federal Constitutional Court is primarily based on the three following considerations:
1. Similarly to the criminal courts, the Federal Constitutional Court considers the value judgment equating soldiers with murderers a serious insult.
However, the courts did not sufficiently ascertain that the controversial statements really had that meaning. In all four cases, the context or circumstances of the statements provided indications which at least made another interpretation possible. According to this alternative interpretation, the purpose of the statements may not have been to degrade soldiers as persons, but to condemn the military and warfare, since they are associated with killing other people when it comes down to it. Pursuant to the established case-law of the Federal Constitutional Court, courts may only base their decisions on an interpretation resulting in punishment if they have conclusively excluded other possible interpretations beforehand. The criminal courts involved failed to do so, and they must now do so.
2. Art. 5(2) GG allows restrictions on the freedom of expression in order to protect personal honour. Thus, the derogatory statements must concern individual persons. This was open to doubt in this case, since all statements concerned soldiers per se, not individual soldiers or soldiers of a certain state.
However, the Federal Constitutional Court concurred with the Federal Court of Justice (Bundesgerichtshof – BGH), to which the challenged decisions made reference, on the point that statements concerning a collective may also possibly constitute an attack on the personal honour of its members. At the same time, it pointed out that the Federal Court of Justice, in the interest of limiting its penal provisions in accordance with the rule of law, considers that there is no personal insult if the collectives are very large and not defined in detail (e.g. all Catholics, all women, all trade unionists), because the insult is, to all intents and purposes, lost in the large number of people and does not affect the individual group members.
The Federal Constitutional Court further endorsed the view of the criminal courts that the (active) soldiers of the Bundeswehr (German Federal Armed Forces) form a sufficiently defined group. However, the statements must then refer to Bundeswehr soldiers in particular, not to all soldiers in the world. Otherwise the limitation of the constituent element of the offence, which the Federal Court of Justice deemed necessary for reasons of the rule of law, would be undone.
3. If a conflict arises between the freedom of expression and the protection of honour, the seriousness of the interferences with each of the legal interests must be balanced against each other according to the established case-law of the Federal Constitutional Court. In this, all circumstances of the case at hand must be considered. However, such a balancing may be dispensed with if the statement is abusive criticism (Schmähkritik). In these cases, according to the case-law of the Federal Constitutional Court, the protection of honour regularly outweighs the freedom of expression. However, according to the case-law of the Federal Constitutional Court, an exaggerated or abusive statement does not automatically constitute abusive criticism, which would make balancing the interferences against one another unnecessary. Rather, it is only considered abusive criticism if its aim is not to debate an issue, but to defame a person.
By contrast, the controversial statements aimed at debating the military and warfare and committing to pacifism. Therefore the criminal courts could not dispense with a specific balancing of the affected legal interests of freedom of expression and honour and must now do so.
Justice Haas attached a separate opinion for cases 1, 3 and 4, declaring that it is not for the Federal Constitutional Court to review the criminal courts’ interpretation of the statements, that the statements have the meaning assumed by the criminal courts and that they have correctly been labelled as abusive criticism. She holds that a legal system obliging young men to military service and requiring them to obey must protect those who fulfil these obligations if they are abused by reason of their military service or if they are publicly labelled as murderers.