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§ 130.4 of the Criminal Code is compatible with Article 5.1 and 5.2 of the Basic Law

Press Release No. 129/2009 of 17 November 2009

Order of 04 November 2009
1 BvR 2150/08

The complainant gave notice, in advance, of his intention to organise an open-air event under the motto "In Commemoration of Rudolf Hess" (Adolf Hitler's deputy in matters of the National Socialist German Workers' Party between 1933 and 1941) in the town of Wunsiedel once a year until the year 2010; the event was to take place also on the 20th of August 2005. The planned assembly was banned due to a danger to public security on the basis of § 15.1 of the Assembly Act (Versammlungsgesetz - VersG) in conjunction with § 130.4 of the Criminal Code (Strafgesetzbuch - StGB) and the immediate enforcement of the ban was ordered. § 130.4 StGB reads as follows: Any person who, publicly or in an assembly, disturbs the public peace by approving, glorifying or justifying the National Socialist rule of violence and arbitrariness in a manner violating the dignity of the victims shall be punished with imprisonment for up to three years or a fine. The applications for temporary relief and the action brought thereupon were unsuccessful in all instances.

In his constitutional complaint, the complainant, who died on 29 October 2009, contested § 130.4 StGB itself as well as the interpretation given to it by the Federal Administrative Court (Bundesverwaltungsgericht) in the concrete case and challenged among other things a violation of his fundamental rights of freedom of assembly and freedom of opinion as well as an infringement of the principle of clarity and definiteness of statutes.

The First Senate of the Federal Constitutional Court rejected the constitutional complaint as unfounded inter alia with a view to Article 8.1 of the Basic Law (Grundgesetz - GG) in conjunction with Article 5.1 and 5.2 GG as well as with a view to Article 103.2 GG.

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

On account of the objective function of the constitutional complaint to safeguard, interpret and further develop constitutional law, the constitutional complaint can be decided upon in spite of the complainant's death. Beyond the complainant's being personally affected, the decision aimed for by the Court is intended to clarify the legal situation concerning expressions of opinion in a large number of future assemblies and public appearances; apart from this, it is of general constitutional importance. Moreover, the matter was ripe for decision at the time of the complainant's death, the Senate had deliberated it, and the proceedings had almost been completed.

§ 130.4 StGB encroaches on the area of protection of the freedom of opinion because the provision makes reference to expressions of opinion which approve of, glorify and justify the National Socialist rule of arbitrary force and makes them punishable under certain other preconditions.

In principle, encroachments on the freedom of opinion are only permissible on the basis of a general law pursuant to Article 5.2 alternative 1 GG. A law that restricts opinions is deemed impermissible "special legislation" (Sonderrecht) if it is not drafted in a sufficiently open manner and if it is from the outset only directed against certain convictions, attitudes or ideologies. This also applies to provisions for the protection of young persons and for the protection of personal honour pursuant to Article 5.2 alternatives 2 and 3 GG. As regards encroachments on the freedom of opinion, the general nature of the law hence guarantees, in compliance with the ban on unfavourable treatment due to political opinions pursuant to Article 3.3 sentence 1 alternative 9 GG, a specific and strict ban on discrimination with regard to certain opinions.

The Basic Law trusts the power of free discussion as the most effective weapon also against the dissemination of totalitarian ideologies that show contempt for humanity. Accordingly, even the dissemination of National Socialist ideas, which radically call into question the existing order, does not from the outset fall outside the area of protection of the freedom of opinion. The free order of the Basic Law primarily assigns the task of counteracting the associated dangers to civic commitment in free political discourse.

Thus, it is true that the provision of § 130.4 StGB is not a general law within the meaning of Article 5.2 alternative 1 GG because it does not serve the protection of victims of force and arbitrariness in general and because it deliberately does not focus on the approval, glorification and justification of the rule of arbitrary force of totalitarian regimes in general but is limited to positive expressions of opinion solely with regard to National Socialism.

Even though it is not a general law, § 130.4 StGB is, by way of exception, compatible with Article 5.1 and 5.2 GG. With a view to the injustice and terror caused by the National Socialist rule, an exception to the ban on special legislation is inherent in Article 5.1 and 5.2 GG for provisions that set limits to the propagandistic approval of the historical National Socialist rule of arbitrary force. To a large extent the Basic Law can virtually be regarded as a counter-concept to the totalitarianism of the National Socialist regime. The experience gained from the destruction of all achievements of civilisation by the National Socialist rule of arbitrary force has had a lasting and decisive effect on the entire post-war order and the integration of the Federal Republic of Germany into the international community.

This exception, however, does not take back any of the substance of freedom of opinion. Freedom of opinion guarantees that laws are not directed against purely intellectual effects of expressions of opinion. The objective of hindering statements on account of their incompatibility with social or ethical views eliminates the very principle of freedom of opinion and is illegitimate. Therefore the Basic Law does not justify a general ban on the dissemination of right-wing extremist or National Socialist thought already with regard to the intellectual effect of its content.

§ 130.4 StGB meets the requirements of the principle of proportionality. With the protection of public peace, the provision pursues a legitimate objective. In this context, the protection of public peace is to be understood, in a restricted sense, as the protection of the peacefulness of public debate and not as protection against a "poisoning of the intellectual climate" or against an insult, constituted by totalitarian ideologies or an obviously erroneous interpretation of history, of the population's ability to know right from wrong. Public peace is aimed at a protection of legal interests at a very early stage which makes reference to emerging dangers. In this context, it is a constitutionally viable assessment by the legislature that approving the rule of arbitrary force of this period will as a general rule appear to today's population as an aggression and an attack on those who again see their worth and their rights called into question, and which, with a view to historic reality, has a stronger effect than a mere confrontation with an ideology that is hostile towards democracy and freedom. As regards its drafting, § 130.4 StGB is also suitable, necessary and proportionate in the narrower sense. It neither generally bans an approving assessment of measures taken by the National Socialist regime nor a positive reference to days, places or forms which are reminiscent of this time and have a highly symbolic value. Instead, its realisation presupposes the approval of National Socialism as a rule of arbitrary force in the shape in which it has become a historical reality. The approval can also take the shape of a glorifying tribute to a historical person if it emerges from the concrete circumstances that this person stands for the National Socialist rule of arbitrary force as such.

Apart from this, § 130.4 StGB is also in harmony with Article 103.2 GG.

It is true that doubts may arise about whether "disturbance of public peace" as an element of criminal offences that justifies punishment is compatible with Article 103.2 GG because this concept is open towards many interpretations and is susceptible to an understanding that does not take due account of the fundamental significance of the liberty rights in the order of the Basic Law. However, the element of "disturbance of public peace" in a criminal law provision does not meet with objections according to the principle of definiteness under Article 103 GG if it is lent concrete shape by the other elements of the criminal offence which by themselves can carry the threat of punishment. In this sense, it has the effect of a corrective element which makes it possible to enforce fundamental rights assessments in the individual case. To this extent the legislature was allowed to regard the approval, glorification or justification of the historical National Socialist rule of arbitrary force, expressed in public or in an assembly, by itself, at any rate in principle, as punishable and sufficiently definite.

The confirmation of the ban on an assembly for the "commemoration of Rudolf Hess" by the challenged decision of the Federal Administrative Court keeps within the boundaries of evaluation of the non-constitutional courts. In particular, the assessment of the concrete case, according to which the assembly for the "commemoration of Rudolf Hess" would have been tantamount to approving the historical National Socialist rule of arbitrary force, does not meet with constitutional reservations.