The first Senate of the Federal Constitutional Court has criminal court in three related procedures for joint decision Convictions for sedition under § 130 II No. 1 b) of the Criminal Code be repealed and remanded the case back to the main court.
The complainants were members of the "Augsburg Alliance - National Opposition". In the period from 03.06. 17/06/2002 led to the association "theme weeks" with, under which the complainant large-scale posters designed and decorated, which were set up at 06.05.2002 in Augsburg, and carried the inscription: "Action: Re-implementing foreigners. Action Week 3 June - 17 June 2002. For a life worth German Augsburg. Augsburg Alliance - National Opposition "The action aliens return. of the "Augsburg Alliance - National Opposition" had been previously announced in the May issue of the magazine "New Swabia. This ten reasons against immigration and for the repatriation were listed.
With Judgement of 20/01/2003 ordered the AG of Augsburg, the complainants for sedition under § 130 II No. 1 b) of the Criminal Code in fines. The complainant had writings which attacked the human dignity of others in that the foreigners living here, insulted and maliciously would contemptuously, posted publicly. Also, the LG Augsburg rejected the appeals of the complainants. This would Writings posted publicly that the human dignity of others attacked the fact that the foreigners living in Augsburg, insulted and maliciously would contemptuously. This is in accordance. § 130 II No. 1 b) of the Criminal Code punishable. This also represents an attack on human dignity by malicious slandering Its content consists of the posters not only from statements that merely expressing emotional rejection. These writings are not from the right to freedom of expression, acc. 5 I GG, covered. The fact that there was no illegality not in relation to the right of freedom of expression. The LG Augsburg also noted that the basic rights of its border find in the general law, and therefore in the Penal Code § 130. An attack of such intensity was not covered more by the freedom of expression. With the text "livable German Augsburg" the complainant had consciously accepted that Augsburg is not worth living, as not "German" is what should be read in conjunction with the previously written word "foreigner-back leadership." Even the Bavarian State Supreme Court rejected the revisions to the complainant as unfounded. The Trial Chamber was correct in law, that by linking the words "foreigner Re-leadership" and "For a life worth German Augsburg "the human dignity of foreigners living in Augsburg is contested. Although it had examined the fundamental right of free expression only with respect to the question of illegality, but the verdict is based not on this. The weight of the fundamental right under Article 5 I GG is in the design of the incriminating statement to take account. Had violated human dignity, is this legal right to freedom of expression not amenable to weighing. The complainants allege
now a violation of the equal fundamental right under Article 3 III GG, their fundamental right to liberty under Article 5 I 1 Basic Law and the fundamental right of equal rights under Article 103 l of the Basic Law by the criminal court Decisions.
The Constitutional Court accepts the constitutional complaint pursuant to § 93a I, II b) Federal Constitutional Court for decision, because this is necessary to enforce the fundamental rights of the complainant is displayed. The question is whether the present constitutional complaint is admissible. The constitutional complaint is considered by the Constitutional Court only partially compatible. As far as the plaintiffs allege a violation of Article 3 and Article III GG 103 I GG, the lack of substantiation does not satisfy constitutional complaints arising under § 23 I 2, § 92 Law on the FCC requirement to state reasons and are not allowed. But otherwise the Constitution complaints on violations of Article 5 I GG allowed.
question now is whether the constitutional complaint 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 question is whether it is to make an exception when it comes to the application of ordinary law, in connection with basic communication rights, are concerned. The constitutional complaint would therefore be justified if challenged decisions violate the plaintiffs their fundamental right of freedom of expression under Article 5 I 1 Basic Law.
First, however, would have the protection under Article 5 I GG be opened. Opinions enjoy the protection of freedom of expression without it were up here on the merits, value or accuracy. They lose that protection, not when they are expressed sharp and exaggerated. Thus protected are also right-wing opinions. The statements on the poster "Action foreigners return - for a life worth German Augsburg" fall within the scope of Article 5 I 1 Basic Law. In punishment for this statement is a direct engagement in front of this fundamental right.
The fundamental right of freedom of expression, however, is not guaranteed without reservation. Under Article 5 II GG it finds its limits, including in the provisions of general laws, which include 130 II No. 1 b) of the Criminal Code could. Here is the introduction
BVerfG clear that citizens are entitled in principle to provide basic assessments of the Constitution in question or to request the amendment supporting principles. Continue to run the translated value of the importance of freedom of expression at the level of interpretation is to be taken into account. The preservation of this value-setting significance, it always requires that a balance between freedom of expression and freedom of speech affected by the legal interest takes place (in the narrow sense).
"Freedom of expression must resign but always when the expression of an opinion, the human dignity of another touches. Because human dignity is at the root of all fundamental rights balancing capability with any individual fundamental right. "
However, as not only individual, but all fundamental rights are concretions of human dignity, it always requires careful reasoning, if it should be assumed that the use of a fundamental right to, by proposing to Article 1 I GG, inviolable human dignity. With the concept of human dignity, social claim to respect human is connected, which prohibits the making man a mere object of the State or subject it to treatment that makes its subject quality in principle. Attacks on human dignity in a humiliation, a branding, to persecution or ostracism, and thus exist in all practices, which deny the victim's claim to respect as a person. The Supreme Court is in this context assumes that the mere violation of the honor of a person is not classified as an attack on human dignity. After that rather requires that the challenged person denied their right to live as equal citizens of a State personality and it is treated as being under-valued. The attack must be against their human dignity, therefore making up the core of the personality, not only against individual privacy rights, judge.
As mentioned above, Federal Constitutional Court is the only responsible for auditing the original constitutional law (no Super appeal instance). But it makes an exception in this case. The Court can executes the application of ordinary law of the specialized courts, in connection with the communication fundamental rights, non-negligible impact on the constitutionally protected positions have. Even individual errors of interpretation of the utterance and may in the interpretation of ordinary law lead to an incorrect weighting of the basic law. Given the severe consequences that can draw such errors in the criminal proceedings, at least in a more intensive review by the Constitutional Court is inevitable.
Below reviewed the Federal Constitutional Court, the judgments of the district court, the District Court and of the Bavarian Supreme Court for errors in the interpretation of the utterance or in the interpretation of § 130 II No. 1 b) of the Criminal Code.
meets The ruling of the district court, according to the Federal Constitutional Court, neither the requirements for the interpretation of expressions of opinion nor those on the interpretation of the criminal provision of § 130 II No. 1 b) of the Criminal Code, as the district court in its legal analysis on the fundamental right of Freedom of speech is not addressed at all. So here there is a so-called deficit application of the district court.
The verdict of the District Court is the constitutional requirements for the interpretation of expressions of opinion not fair. It is doubtful whether the district court of the fundamental right of freedom of expression has recognized as independent to be considered standard of interpretation. The reasons for the decision can not recognize that the district court, designed by the complainants as a poster paper has considered the public opinion battle and that it has the constitutionally-approved for the following demands on the interpretation of opinions. From the testimony of the District Court that the conduct of the complainant is not covered by the basic right of freedom of expression, the result only a flat fee without properly considered reasons that the behavior as either already not the protection of the fundamental right includes viewing is, or that the fundamental right of Article 5 I GG in conflict with other constitutional goods have been found to be subordinated. The thing to deny it to another account of the needs of Article 5 I GG for further interpretation and application of § 130 of the Penal Code and fails to recognize that the constitutional requirements for the application of restrictive laws have already basically opinion. So here is a deficit before the application of the District Court.
The decision of the Bavarian Supreme Court, meets the requirements of Article 5 § 1 does not GG. It has, however, the introduction of its reasoning, stressing the constitutional standards for the interpretation of expressions of opinion and also recognized that an affirmative answer to an attack can not be more on the human dignity concerns of freedom of expression considered or weighed in the proportionality. However, it has mentioned the Federal Constitutional Court developed principles for the interpretation of the penal provisions restricting freedom of expression, which in fact require a violation of human dignity, "the not yet considered the matter after. The criminal courts but must indicate the interest of substantive protection of fundamental rights by disclosing the relevant reasons for the outcome of the assessment in an accessible way of constitutional review, that in the consideration of the for the relevant circumstances have been set, or why there was no room for a balance in individual cases for reasons such as a curtailment of human dignity. The Bavarian State Supreme Court had, however satisfied in a single sentence noting that an attack are present on human dignity, not substantiated in more detail then. The strict requirements of the Federal Constitutional Court, in a particularly careful examination of the human dignity of injury, is not enough that. So all the contested decisions are based on the fundamental right of each identified violation.
The constitutional complaints are (partly) admissibility and the merits and thus have success. Decisions are repealed. The case is remanded to the AG of Augsburg and the Free State of Bavaria has to reimburse the complainants for the necessary expenses.
Conclusion: Since in the present decision to the individual application of the penal provision is, problematizes the Constitutional Court not to § 130 of the Criminal Code as a general law not with 5 I and II of the Basic Law is compatible. Since a criminal offense may violate the freedom of expression under Article 5 of the Basic Law, must make the relevant specialized court a detailed case examination.
BVerfG v. 04.02.2010 - 1 BvR 369/04
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