fundamental rights

Constitutional complaint of Mr. K- Federal Constitutional Court [1 BvR 479/20]-07/07/2020

Constitutional criminal conviction of incitement to hatred by calling someone “a cheeky Jew” and by calling for a general boycott of a Jewish community

FEDERAL CONSTITUTIONAL COURT GERMANY

Second Chamber of the First Senate
Order of 7 July 2020

1 BvR 479/20

1. The Basic Law contains no general anti-Nazi principle that would permit a ban on the dissemination of right-wing extremist or even Nazi ideas merely on the basis of the beliefs and opinions thus expressed. Rather, Article 5.1 and 5.2 of the Basic Law guarantees the freedom of opinion as freedom of thought, regardless of whether the content of an opinion is correct or dangerous.

2. Restrictions of the freedom of opinion are permissible under constitutional law where statements amount to an infringement or a specific endangerment of legal interests. This can be the case, for example, if they incite hatred against certain persons or groups and thereby violate the peacefulness of public discussion.

Summary:

I.

A TV broadcast had reported that the official gazette of a municipality in North Rhine-Westphalia was published by a publishing house whose owner also distributed publications with a right-wing extremist background through another publishing house. In light of this fact, the chairperson of a Jewish community in the region had requested that the municipality change the publisher of its official gazette. Thereupon, the applicant, who was the leader of a local branch of the party DIE RECHTE at that time, published an article on the party’s website. The article contained derogatory statements on Jewish persons in general and the chairperson of the Jewish community in particular, criticised the alleged influence of Jewish organisations on German politics, and called for a general boycott of the community in question.
Because of these statements, the criminal courts convicted the applicant, who had relevant previous convictions, of incitement to hatred and insult and sentenced him to six months in prison without probation. The applicant challenged the conviction claiming that it violates his freedom of expression under Article 5.1 of the Basic Law.

II.

Based on the considerations below, the Federal Constitutional Court did not admit the constitutional complaint for decision.

The decisions rendered by the criminal courts are not objectionable under constitutional law even though they are based in part on an imprecise understanding of the exception to the requirement of a general law pursuant to Article 5.2 of the Basic Law. This exception was recognised by the Federal Constitutional Court in its Wunsiedel decision; it applies to the glorification of the Nazi reign of violence and terror (§ 130.4 of the Criminal Code).

Contrary to the assumption of the Regional Court, this exception relates solely to the formal requirement that laws inhibiting the freedom of opinion must not be directed against a particular opinion (standpoint neutrality). It allows the legislator to create provisions that are not abstract but directed specifically against the glorification of the Nazi reign of violence and terror. However, this case does not concern a criminal provision that focuses specifically on the Nazi regime, but rather the general offence of incitement of hatred as defined in § 130.1 of the Criminal Code.

Freedom of opinion prohibits state interference with an individual’s beliefs; interferences with this fundamental right can only be permissible where statements no longer merely reflect inner attitudes and beliefs, and instead turn into violations of or dangers to legally protected interests. The latter is the case when statements threaten public peace, specifically the peacefulness of public debate, and thus mark the transition to aggression or a breach of the law.

However, when courts assess statements, their specific effects in the respective context must be taken into account. In this context, the particular and unique experiences of German history – especially the disenfranchisement and systematic murder of the Jewish population of Germany and Europe, which was initiated and accompanied by the targeted and systematic incitement to hatred and calls for boycotts – call for increased sensitivity in dealing with calling someone a “Jew” in a derogatory manner. In this respect, it is relevant whether the statement contains an aggression that goes beyond the limits of peacefulness. Depending on the individual case, especially if the person making the statement is aiming to instigate hatred against the Jewish population or if the statement endorses the Nazi ideology of race, it may be a form of inhuman stigmatisation of Jewish persons and, implicitly, an invitation for others to discriminate against and harass them. However, it is the expression itself and its immediate context that remains decisive, not the inner attitude or the party programme that may form the background for an expression.

In light of these standards, the challenged decisions are not objectionable under constitutional law. In particular, the courts considered the statements to amount to an incitement of hatred against the Jewish population not because of the general ideological orientation of the applicant and his party, but because of the statements themselves. The courts point out that the applicant’s goal of inciting hatred against the Jewish population was made clear in particular by the use of terms used by the Nazi’s anti-Semitic propaganda (“cheeky Jew”), by the positive emphasis on the “men of the Waffen-SS” and by the call to boycott the Jewish community whose chairperson was targeted by the statements. The fact that the statement was aimed at inciting hatred against the Jewish population also becomes clear due to the fact that it is embedded in an accusation of an allegedly particularly pronounced influence of Jewish organisations on German politics, which takes up the theme of an alleged “Jewish world conspiracy”.

Finally, the criminal courts aptly point out that, given its militancy, the announcement that the applicant’s political party wants to “reduce the influence of Jewish organisations on German politics to exactly zero in the shortest possible time” is linked to the Nazi rhetoric of extinction. Given the historical experience and reality of the attempted extinction of the Jewish population of Germany and Europe, making such a verbal statement that draws on Nazi ideology, particularly where it is directed against the Jewish population, constitutes a specific threat, carries the danger of turning the political debate into a hostile one and thus jeopardises its fundamental peacefulness. The offence of incitement under § 130.1 of the Criminal Code serves to protect from this very danger.

FEDERAL CONSTITUTIONAL COURT GERMANY

1 BvR 479/20

In the method above , the constitutional complaint
of Mr. K …,

against

a) the decision of the Hamm Higher Regional Court from January 28, 2020 – III-3 RVs 1/20 -,

b) the judgment of the Bielefeld Regional Court from October 10, 2019 – 011 Ns-216 Js 396 / 16-39 / 18 -,

c) the judgment of the Bielefeld District Court from February 22, 2018 – 39 Ds 216 Js 396/16 – 1027/17 –

 and

Application for a preliminary injunction has passed the 2nd Chamber of the First Senate of the Federal Constitutional Court

The judges– Masing, Paul, Christian

according to § 93b in connection with § 93a BVerfGG in the version of the
announcement of August 11, 1993 (Federal Law Gazette I p. 1473)
decided unanimously on July 7, 2020:

The constitutional complaint is not admitted for decision.

If the constitutional complaint is not accepted, the application for the issuance of an interim order becomes irrelevant (Section 40 (3) GOBVerfG).

Reasons :
I.

The constitutional complaint of the complainant, who had several relevant previous convictions, is directed against a criminal conviction for sedition and insult based on an article published publicly on the Internet in which he described the chairman of a Jewish community as a “cheeky Jewish functionary” and against this with a call for a boycott united Jewish organizations.

1. In August 2016, Westdeutsche Rundfunk published a television report in which it was reported that the municipality P. had its official gazette published by a publisher, the owner of which, as managing director of another publisher, is said to have also published papers with a right-wing extremist background. In view of this, the chairman of the Jewish community H. demanded in the television report that the community should publish its official gazette in another publishing house in future.

Thereupon the complainant, the then chairman of the party DIE RECHTE in area O., published an article under the heading “State radio, left and Jewish community rushing against publishers” on a website of the party for which he was responsible, in which he initially attempted in general “Silencing dissidents …” criticized. This can now also be observed in the case of a “politically non-conforming publisher” in P. The “Deutsche Verlagsgesellschaft”, which he runs, has “various books critical of the zeitgeist”, including one “about exemplary and proven men of the Waffen SS”. “Politically correct morality guardians” in the media, the “naturally pissed off”. The article continues:

“Even more brazen […], chairman of the Jewish community H., resident … The cheeky Jewish functionary smugly urges the city to ‘take immediate action and part with [name of the publisher]’. [… D] a of course the city has to take the necessary steps and immediately look for a new printer – perhaps, as an act of repentance, even a Jewish one?

The article goes on to speak of a “massive smear campaign by the media, the left and the Jewish community”; one should therefore “immediately put an end to all cooperation with the Jewish community H.” and continues:

“DIE RECHTE would reduce the influence of Jewish lobby organizations on German politics to exactly zero in the shortest possible time. Since we are of the opinion that the state has to behave in a strictly religiously neutral manner, we would also cut off all state support for Jewish communities and use the money for the common good. DIE RECHTE – the party for German interests. “

2. Because of these statements, the Bielefeld District Court sentenced the complainant to six months’ imprisonment without parole for sedition and insult.

3. The complainant’s appeal was rejected by the Bielefeld Regional Court, essentially repeating and deepening the grounds of the first instance. The person concerned is addressed by the designation “cheeky Jewish functionary” in his function as a member of the Jewish population group. Such disparaging public addressing using National Socialist terminology should be seen as incitement to hatred within the meaning of Section 130 (1) No. 1 of the Criminal Code. Because this implicitly, but intentionally and unambiguously, gives the person concerned the status that a Jew had under National Socialism, namely as a person without dignity and the right to exist and in so far as someone on whom hatred could and should be discharged. Such a reference to the ideas and methods of National Socialism is also clear from the overall context, in particular the laudatory mention of men of the Waffen SS and the passage that the party DIE RECHTE will reduce the influence of Jewish lobby organizations on German politics to zero in the shortest possible time. For educated readers, in particular the complainant and the person concerned, are aware of how the National Socialists tried to achieve the latter goal, namely by ghettoization and the extermination of persons of Jewish faith. In this extermination rhetoric, ultimately, there is an approval of violence against persons of Jewish faith, but not yet a concrete call for violence and arbitrary measures. The statement is also not covered by freedom of expression. In particular, there is no question here of the extent to which the person concerned would have to accept sharp and polemical criticism because of his previous statement. Rather, the decisive factor is the reference to and positive identification with National Socialism, from which, in particular, an incitement to hatred that is not protected by freedom of expression can be derived. In this regard, the Federal Constitutional Court, in its approval of Section 130 (4) of the Criminal Code, recognized an exception to the requirement of the general public to restrict opinion-restricting laws for provisions aimed at preventing a propagandistic affirmation of the National Socialist tyranny and arbitrary rule.

4. The appellant’s appeal was rejected by the Hamm Higher Regional Court as obviously unfounded, confirming the Regional Court’s decision and additionally referring to the application of the Advocate General.

5. With his constitutional complaint connected with an application for a temporary injunction, the complainant alleges a violation of his freedom of expression under Article 5, Paragraph 1, Sentence 1 of the Basic Law.

II.

The constitutional complaint cannot be accepted for a decision (Section 93a (2) BVerfGG). Regardless of the question of whether it meets the substantiation requirements of Section 23 (1) sentence 2, Section 92 BVerfGG, it is obviously unfounded. The interpretation and application of Section 130 (1) StGB by the specialist courts are within the framework of the specialist courts.

1. The criminal sanctioning of the complainant’s statements, classified as evaluative statements by the specialized courts, encroaches on the complainant’s freedom of expression in accordance with Article 5, Paragraph 1, Sentence 1 of the Basic Law.

2. However, this encroachment on fundamental rights is justified.

a) According to Article 5, Paragraph 2 of the Basic Law, the fundamental right to freedom of expression is subject, in particular, to the barriers that result from general laws. Interventions must then be formally based on a general law that is not directed against a specific opinion, and materially meet the proportionality requirements with regard to freedom of expression as a fundamental right of communication for the democratic order.

What is wrong, however, is that the regional court bases its assessment of the complainant’s statement as incitement to hatred on the fact that the Federal Constitutional Court recognizes an exception to the general requirement of Article 5 (2) of the Basic Law in relation to the glorification of the tyranny of National Socialism. The Federal Constitutional Court does indeed recognize such an exception. However, this exception only concerns the formal requirement of a law based on general criteria, i.e. not formulated in relation to a specific opinion. Accordingly, the Federal Constitutional Court considered Section 130 (4) of the Criminal Code to be constitutional, although this only punishes the glorification of tyranny under National Socialism, but not the abstract glorification of violent regimes in general. In view of German history, the legislature was allowed to criminalize the glorification of violence with reference to National Socialism. Such a penal provision, which is specifically linked to National Socialism, is not in question in the present case from the outset. The procedure concerns a punishment according to § 130 Abs. 1 Nr. 1 StGB, which based on the protected interests mentioned there can concern very different opinions and is a general law within the meaning of Art. 5 Abs. 2 GG.

On the other hand, there is no general and in particular no material exception to the requirements of laws restricting opinion for statements relating to National Socialism. The Basic Law does not recognize any general anti-National Socialist basic principle that would allow a ban on the dissemination of right-wing extremist or even National Socialist ideas with regard to the intellectual impact of their content. Rather, the general requirements for encroaching on freedom of expression apply here. There Article 5 (1) and (2) of the Basic Law guarantees freedom of opinion as freedom of the mind regardless of the content-related evaluation of its correctness or danger. Article 5 (1) and (2) of the Basic Law does not allow the state to gain access to the convictions, but only authorizes intervention when expressions of opinion leave the purely intellectual sphere of being held to be correct and turn into violations of legal interests or recognizably endangered situations (BVerfGE 124, 300 <330>). This is the case if they jeopardize public peace as the peacefulness of public debate and thus mark the transition to aggression or a breach of the law (see BVerfGE 124, 300 <335>).

For the assessment of statements, their concrete effect in the respective context must be taken into account according to general principles. The special experiences of German history, in particular the disenfranchisement and systematic murder of the Jewish population of Germany and Europe, initiated and accompanied by targeted and systematic agitation and calls for boycotts, demand an increased sensitivity in dealing with the derogatory designation of someone else as “Jews”, especially if it is supplemented by further pejorative additions. In this respect, it will usually have to be examined whether this is an aggression that transcends the peaceful limit. Depending on the accompanying circumstances in the individual case, especially if the person making the statement is obviously aiming to create a mood against the Jewish population, identifies with the National Socialist racial ideology in the utterance or the utterances are otherwise directly related to it, this may contain a kind of inhuman stigmatization of Jews and, implicitly, an invitation to others to discriminate and harass them (see BVerfG , Decision of the 1st Chamber of the First Senate of September 6, 2000 – 1 BvR 1056/95 -, Rn. 40; BGHSt 40, 97 <100>). However, what is decisive for the assessment of a statement is the statement itself and its immediate context, not the inner attitude or the partisan agenda that may form the background of a statement (see BVerfG, decision of the 2nd Chamber of the First Senate of May 15, 2019 – 1 BvQ 43/19 -, Rn. 11). This can be a inhuman type of inflammatory stigmatization of Jews and, implicitly, an invitation to others to discriminate and harass them (see BVerfG, decision of the 1st Chamber of the First Senate of September 6, 2000 – 1 BvR 1056 / 95 -, Rn. 40; BGHSt 40, 97 <100>). However, what is decisive for the assessment of an utterance is the utterance itself and its immediate context, not the inner attitude or the partisan program that may form the background of an utterance (see BVerfG, decision of the 2nd Chamber of the First Senate of May 15, 2019 – 1 BvQ 43/19 -, Rn. 11). This can be a inhuman type of inflammatory stigmatization of Jews and, implicitly, an invitation to others to discriminate and harass them (see BVerfG, decision of the 1st Chamber of the First Senate of September 6, 2000 – 1 BvR 1056 / 95 -, Rn. 40; BGHSt 40, 97 <100>). However, what is decisive for the assessment of a statement is the statement itself and its immediate context, not the inner attitude or the partisan agenda that may form the background of a statement (see BVerfG, decision of the 2nd Chamber of the First Senate of May 15, 2019 – 1 BvQ 43/19 -, Rn. 11).

The specialized courts must take these requirements into account when interpreting and applying Section 130 (1) of the Criminal Code, which restricts freedom of expression, so that the value-setting significance of freedom of expression is preserved at the level of application of the law (cf.BVerfGE 7, 198 <208 and 208>; 124, 300 <332, 342>).

b) According to these standards, the challenged decisions do not meet any constitutional concerns, even without resorting to the exception to the general public requirement.

The courts gave a detailed and differentiated justification for their assessment of the punished statements as inciting hatred against the Jewish population. In doing so, they did not rely on the general ideological orientation of the complainant and the party he represented, DIE RECHTE, but on the statement itself. In detail, they made it understandable that the complainant’s aim of inciting hatred by referring to National Socialist ideas and methods directed against the Jewish population, in particular from the use of terms used by National Socialist anti-Semitic propaganda (“cheeky Jew”), from the positive emphasis on the “men of the Waffen-SS” and from the call for a boycott of the Jewish community headed by the person concerned that was directly linked to the statement. The thrust of the statement, inciting hatred of the Jewish population, is also clearly recognizable by the fact that the statement is embedded in the allegation of an allegedly particularly pronounced influence of Jewish organizations on politics in Germany, which is apparently supposed to take up the topos of an alleged Jewish world conspiracy. Finally, the district court correctly points out that the announcement following the statement that the influence of Jewish organizations on German politics “will be reduced to exactly zero in the shortest possible time”, ties in its militancy to National Socialist extermination rhetoric. Such verbal reference may be permissible in other contexts; directed specifically against certain sections of the population, in particular the Jewish population, but based on the historical experience and reality of such an undertaking, it justifies a specifically threatening character, carries the danger of letting the political conflict turn into hostile and unpeaceful and thereby endangered – especially because of the Announcement to an unlimited group of people on the Internet – their fundamental peacefulness. It is precisely against this that the offense of sedition according to Section 130 (1) of the Criminal Code protects. Especially directed towards the Jewish population, however, based on the historical experience and reality of such an undertaking, it justifies a specifically threatening character, carries the danger of letting the political conflict turn into hostile and unpeaceful and thus endangered – especially because of the announcement to an unlimited group of people on the Internet – their basic peacefulness. It is precisely against this that the offense of sedition under Section 130 (1) StGB protects. Especially directed towards the Jewish population, however, based on the historical experience and reality of such an undertaking, it justifies a specifically threatening character, carries the danger of letting the political conflict turn into hostile and unpeaceful and thus endangered – especially because of the announcement to an unlimited group of people on the Internet – their basic peacefulness. It is precisely against this that the offense of sedition according to Section 130 (1) of the Criminal Code protects. to let the political conflict turn into hostile and unpeaceful and thereby endanger – especially because of the announcement to an unlimited group of people on the Internet – their fundamental peacefulness. It is precisely against this that the offense of sedition according to Section 130 (1) of the Criminal Code protects. to let the political conflict turn into hostile and unpeaceful and thereby endanger – especially because of the announcement to an unlimited group of people on the Internet – their fundamental peacefulness. It is precisely against this that the offense of sedition according to Section 130 (1) of the Criminal Code protects.

This decision is final.

Masing

Paul

Christian


1 BvR 479/20