The individual constitutional complaint is directed against a civilian court conviction with which the applicant was prohibited, literally from a lawyer's letter to quote.
The complainant operates a website on which he "N. Published online newspaper. In 2006 he proposed, where an article to publish the R. He had written a book about a bank and was therefore taken to cease to deliver. The article dealt with that case, in particular the behavior of the person authorized by the applicant bank attorney H. a court date. As the complainant wished to illustrate the article, he asked in writing to the pillion on the S. of H. if he could use an existing law firm on its home page photo for publication. The request was in a partly hostile and ironic Ton held. It began with the salutation "Dear Mr. S." and contained the announcement that the complainant "in the future can not be intimidated" and you might meet again before the constitutional court would. Next it was
then says, "One more question: Since I will publish in the next issue an article on N. Rs appointment in Berlin, where your colleague H. was involved so beautiful, I would be grateful if you would would allow to use the photo of your site for it. Tell me please is also in tandem, to see at what point Mr. H.. That you are in the middle, should clearly yes be. Then our readers know well how to present you and your colleagues in public ... "
The S. replied with an e-mail dated 12.09.2006, in which he challenged the use of images of him and his pillion H. and threatened with legal action. Literally, it was said :"... we expressly reject any use of images of Mr. H. and myself. If you are here to offend, we will take independent legal action. We point out that we recently also other media companies to publish a portrait of our part, have banned. "
The same day, the article on the website of the complainant. It reported over the course of a hearing, the occurrence and the appearance of H which were derogatory comments. The text was accompanied by an editor's note that tells the framework that was on the page request "an impressive picture of his home page, law firm 'to Rs gloss" did not want to release. In addition, the content of the e-mail of the S. and a further e-mail with which the H. was also in no uncertain terms the publication of a portrait was challenged, reproduced verbatim. The S.
took the complainant then at the regional court in Berlin for an injunction literal quotations from lawyers' letters claim.
The Judgement of 05.06.2007 was the Berlin court allowed the claim against the complainant in full. The plaintiff had an injunction from S. § 823 I, II BGB in conjunction with § 1004 I 2 BGB because of a violation of his personal rights under Article 2 I GG in conjunction with Article 1 I GG. Although the complainant had mentioned certainly must, that the plaintiffs protest against the publication of his portrait, as if it were a statement, which concerns the privacy of the plaintiff, but only the social sphere. Account will be however, that it was the perfect right of the plaintiff, the question regarding the publication of the picture to deny. As he did so with harsh words and immediately threatened with legal action, he will by the public of his words presented as someone who once threatened with a lawsuit if only a public photo to be published by him. There is thus a reduction in the general personal rights of the plaintiff. In contrast, weigh the public interest, the exact wording of the response of the applicant's experience, only small.
here also with the challenged order of 19.05.2008 rejected the Court of Appeal dismissed the appeal of the complainant. The appellant is the alleged failure to claim from § 823 I, II BGB in conjunction with § 1004 I 2 BGB, because his general right to the information outweighs the public interest here. True, the Berlin court had assumed that the interest was limited to the exact wording. Also, in the opinion of the Court of Appeal to be perceived by the publication of the incorrect impression that the applicant responds to simple questions with dire threats.
the complainant, now his freedom violated fundamental right under Article 5 I GG and his fundamental rights equal justice under Article 103 I GG.
By the Court of Appeal dismissed the appeal without hearing the complainant, it had the right to a fair Hearing, under Article 103 I GG, injured. It took the complainant the opportunity to present its arguments in a hearing orally.
These are the challenged decisions of the Berlin court and the Court of Appeal in error by a breach of the general right to assume the plaintiff and thus had the freedom of the complainant, under Article 5 I GG, injured. The page was must have been clear due to the request of the complainant's intention to publish it. As he had answered yet, without noting that he is not a distribution of his response was in agreement, it was not evident which could have affected the accurate reproduction of the same personality issues. Even if EXIST but an invasion of personal rights protected by the interests of the applicant should fail then the required balance in favor of freedom of the complainant. In this case would affect in particular that the challenged injunction develops an intimidating effect on the use of the fundamental right under Article 5 I GG.
According to the Federal Constitutional Court, the constitutional complaint is only partially acceptable. That the complainant alleged violation hearing is not attacked with the appeal of a § 321 ZPO has, however, is the admissibility of the constitutional complaint does not prevent. The extent of its admissibility, the constitutional complaint (relating to the violation of Article 5 I GG) is obviously justified.
a violation of his right to be heard, to be present here, however. From the § 23 I 2, § 92 BVerfGG sufficient requirement to state reasons is not the complainant's allegations. He has argued that the requirements of § 522 II ZPO contrary to the opinion of the Court of Appeal had not been met. About his appointment would not have so may be decided without a hearing. This is the opinion of the Constitutional Court, however, still not even the possibility of the material breach hearing conclusively established. Article 103 GG I give no right to a hearing. The complainant has also stated that the Supreme Court has taken into account be all the pleadings, evidence and arguments at a hearing he his argument "again" could have imposed. Against this background, there is evidence not seen that it would have been due to a hearing to a different decision. The conviction is based not on the alleged violation of Article 103 I GG.
question is remains whether the constitutional complaint in respect of a breach of Article 5 I GG is well founded. Here, the standard of review of the court is complied with. The Constitutional Court examines only originary constitution, because it is not super appeal instance. The decisions would be disproportionate to the complainant's fundamental right under Article 5 I GG injured.
The conviction for failure literal quotations from the plaintiff lawyer's letter could violate the complainant's fundamental right to engage here in the scope of Article 5 I GG is given. In the scope of non-value judgments also include statements of fact, they contribute to the formation of opinions can help. This is a quote such as the one at issue you can be the case. The reproduction of the negative response was clearly capable of contributing to an assessment of the applicant. The decisions of the courts to say directly in the access granted by Article 5 I GG scope of the complainant.
The fundamental right under Article 5 I 1 Basic Law is not guaranteed without reservation, but is acc. Article 5 II GG under the limits of general laws. Among these laws are understood to be directed not against the expression of the opinion itself, but serve to protect an absolutely without regard to a certain opinion to be protected legal interest. The general laws are also used here, the provisions of § § 823, 1004 BGB.
The Berlin court and the Court of Appeal in this case have not denied that the statement falls within the scope of Article 5 I 1 Basic Law. Its view that it violated the general right of the plaintiff and the fundamental right simply get the priority over the freedom of expression is constitutionally unsustainable.
The fundamental right under Article 2 in conjunction with Article I 1 I GG mediated by the case law of the Constitutional Court to its bearer is not entitled to be shown publicly only as to how he is even acceptable. Even the adoption of the courts that the publication the quote the general right to affect the plaintiff met this considerable concern. As far as the Berlin court focussed objective of that the plaintiff "presented to the public 'will, this may be understood as referring to the legal concept of the pillory effect. This can lead to condemnation, that the regular expression is allowed to prevent a true fact from the social sphere in the individual case with regard to the overriding interests of the person concerned.
This law is not constitutionally objectionable, but not its application to this case to understand. The Judgement of reasons can be not realize that by quoting the applicant could take a serious condemnation of the average audience for itself, as the adoption of a shaming is provided.
The additional consideration of the Court of Appeal, the expression of total call forth a false impression, since it is the plaintiff as someone responds to a "simple request" with dire threats, the Federal Constitutional Court is not convinced. The text, the significance which the quoted mail in general is a "simple request" preceded not be given. As far as the Supreme Court wants the silence of the text refer to the statement that the request no significant Special features have been reported, this is not objectionable in the legal starting point. However, the court has not established such a case in a manner complying with the constitutional requirements.
It also has not considered whether or not the most remarkable in its view field of the e-mail on the assumption that a "simple request" had been preceded, appear far-fetched for the average reader could not. Nor has it acknowledged that the spread of the complainant article contains a variety of critical and disparaging remarks about the Neck, which the reader is also a reference to a "corresponding to the question tabled" must understand. Finally, the Supreme Court not enter and that is expressly stated in the text, the "request" was based on the use of the image for a "gloss" which was written by the defendant and thus do not expect any positive representation of the plaintiff was . The Court did not therefore within the text sufficiently appreciated, and thus the constitutional standards for interpretation in the scope of Article 5 I missed GG falling utterances. Thus, here there is a deficit of the court application.
are also the following considerations on which the courts of their balance between the general have supported the applicant's right to privacy and freedom of expression of the complainant, ie the so-called constitutional in the strict sense, constitutionally unobjectionable. The decisions represent primarily to ensure that the public interest in information is small in the disputed statement. This consideration raises concerns already that the courts have ignored the protection of a fundamental right under Article 5 I GG fundamentally. It may thus also have come to a deficit application of the courts. Although it is in the public interest in information about a major consideration factor in cases of conflict between the constitutionally protected expression of interests on the one hand and personality aspects of the other part of the statement concerned. In the cases of this so-called basic law collision, the production of a practical Konkurdanz is desirable. This does not mean that freedom of expression is protected only under the condition of public interest and may be exercised only support the fundamental right as it were in trust for the democratically constituted community.
"Instead, guarantees the fundamental right under Article 5 I GG primarily self-determination of the individual fundamental right to support the development of his personality in communication with others."
Already from this relates to the fundamental right to be in a trade with the general right to be set weight that can be a potential public interest in information only increased. Given this, it is a constitutionally questionable shortening, if the courts the plaintiff for the sole reason have granted injunctive relief because the general right to the information outweighs the public interest.
The decisions are based on the demonstrated constitutional errors, so the application deficiencies of the courts. It is possible that the courts again been referred to another Decision will come into the matter. Here, they will need to be considered that the expression of true facts, especially those from the realm of social sphere, to be accepted at regular intervals.
Conclusion: The decision of the Constitutional Court deserves special attention. It confirms the superior rank of the constitutional fundamental right under Article 5 I GG. The fundamental right to have a special weight in the interest against the general right of personality. So there is a constitutionally questionable shortening of Article 5 I GG is, if an omission of a statement of fact which contributes to the formation of opinions, only by the preponderance of the general Personal rights over information to the public interest is justified. A little public interest in a factual statement can thus never engaged in the scope of Article 5 I justify the Basic Law.
for legal education, the decisions of the Constitutional Court concerning Article 5 I GG is of particular importance and relevance of high degree. The decision of the First Division of 04.11.2009 on the compatibility of § 130 of the Criminal Code as a non-IV general law with Article 5 I, II GG (1 BvR 2150/08) was processed in April 2010 as part of a degree examination in NRW. Even the decision of the First Division from 04.02.2010, it was decided in which the convictions for incitement to Article 5 paragraph 1 sentence 1 GG violated if they are not a violation of human dignity of the victim and could create (1 BvR 369/04), could easily be the subject of an examination exam. The decision of 18/02/2010, this study also joins seamlessly with the list of exam-relevant decisions of the Constitutional Court to Article 5 of the Basic Law.
found in the practice of the present decision already respect for the Berlin court. In a ruling of 27.04.2010 (27 0 66/10), it lifted a temporary injunction from the Court of Appeal on 25.03.2010. The preliminary injunction forbidding it to the applicant to submit observations to the media to private matters between him and his celebrity son. The Berlin court explicitly referred in its reasoning to the present decision of the Constitutional Court.
The decision of the Berlin court will also discuss the course in this blog.
BVerfG v. 18.02.2010 - 1 BvR 2477/08
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