In principle, the question of whether a statement should be punished as an insult or protected by freedom of expression must be decided by means of a balance. On the other hand, when a statement is grouped as a criticism of invective, freedom of expression resigns from the outset; exceptionally, there is no need to weigh up the case on a case-by-case basis. Therefore, strict standards must be applied with regard to the existence of criticism of invective. The decisive factor for this is not simply an overall assessment of value, but the question of whether the statement has a factual reference. Only if, on the merits of the case, a statement is aimed solely at the defamation of a person as such, for example in the context of a private feud, can an assessment be considered an insult; in that regard, the reason and context of the statement must be determined. If, on the other hand, the statement is, as is usually the case, in the context of a substantive dispute, a balance is needed which takes into consideration the importance of the statement in the specific circumstances of the individual case.

Against this background, the 2nd Chamber of the First Senate of the Federal Constitutional Court, with a decision published today, upheld the constitutional complaint of a convicted of insulting a judge who Nazi special courts and witch trials. This had been incorrectly classified by the specialised courts as a criticism of invective, even though it was not a mere reduction of the persons concerned, but a factual reference to the civil proceedings conducted by the complainant.


The complainant was the plaintiff in a civil court case. In the grounds of a refusal application, he described in detail his impression that the judge had unilaterally heard a witness appointed by the defendant at his detriment and, as it were, put the answers she wanted in his mouth. He went on to say that “the manner in which the judge influenced the witnesses and conducted the proceedings, as well as the attempt to exclude the plaintiff from the trial”, were strongly reminiscent of “relevant court proceedings before former Nazi nationals.” Special Courts”. The entire conduct of the judge’s trial was “more reminiscent of a medieval witch trial than of a trial conducted in accordance with the rule of law.” Because of these statements, the district court sentenced the complainant to a total fine of 30 daily rates for insulting him. The complainant’s appeal, review and hearing allege were unsuccessful.

The Board’s main considerations are:

The decisions of the courts infringe the complainant’s fundamental right to freedom of expression under Article 5(5) of the Court of Justice. 1 set 1 GG.

  1. The statements fall within the scope of the fundamental right to freedom of expression, since the polemical or infringing wording of a statement does not, in principle, deprive it of the scope of the protection of the fundamental right.
  2. The fundamental right under Article 5(5) 1 Sentence 1 GG does not apply without reservation, but takes place in accordance with Art. 2 GG sets its limits in the provisions of the general laws, in particular in the underlying paragraph 185 of the StGB on which the conviction is challenged here. If an offence of expression is in question, Article 5(4) requires: 1 Sentence 1 GG is, in principle, a weighting of the impairment which threatens the freedom of expression of the person expressing himself on the one hand and the personal honour of the person affected by the statement on the other. The right to sharply criticise measures by public authorities without fear of state sanctions is at the heart of freedom of expression, which is why its weight is particularly high. In particular, it does not allow the complainant to be limited to what is necessary to criticise the rule of law and thus deny him a right to polemical intensification.

A special case in the interpretation and application of Section 185 et seq. StGB form derogatory statements that present themselves as formal insults or insults. In that case, for once, no balance is necessary between freedom of expression and the right to personality, because freedom of expression will regularly fall behind the protection of honour. However, this consequence, which is incisive for freedom of expression, requires the application of strict and independent standards with regard to the existence of formal insults and criticism of insults. The qualification of an honourable statement as a criticism of invective and the reasoned renunciation of a balance between freedom of expression and honour are based on the criterion of objective reference. As long as there is a link to a substantive dispute and the statements are not limited to a mere personal defamation or reduction of those affected by the statement, as in the case of the private feud, as in the case of the private feud, they shall not be classified as an insult, but they can only be punished as an insult on the basis of a comprehensive and case-by-case balance with freedom of expression. Whether such a factual reference exists must be determined taking into account the reason and context of the statement.

  1. Decisions do not meet these standards. The meaning and scope of freedom of expression are misunderstood even if a statement is incorrectly classified as a formal insult or criticism of insults, with the result that it does not participate to the same extent in the protection of the fundamental right as statements which are regarded as a value judgment. without an insulting or insulting character. That is the case here; the incriminated statements do not constitute a criticism of invective. By his settlements, the complainant directed against the judge’s conduct of proceedings in the civil proceedings he was conducting. This was the reason for the statements made in the context of the extensive justification of a request for partiality. The statements are therefore not without any factual reference in that regard. They cannot be resolved from that context in a meaningful way because of the wording directed towards the conduct of the proceedings and not on the judge as a person, and therefore do not appear to be merely a reduction of the persons concerned. Historical comparisons with National Socialism or accusations of a “medieval” attitude may have special weight in the context of the weighing up, but do not justify the assumption of the existence of insult criticism in itself.

The statements by which the Landgericht denies the exercise of legitimate interests under Paragraph 193 of the Criminal Code do not take back the incorrect classification of the statement as an insult, but build on it. Admittedly, in that regard, the Landgericht correctly emphasises the complainant’s particular interest in defending his legal views in the ‘fight for justice’ and takes into account, in his favour, that the statements to third parties were not made public. On the other hand, by claiming that the wording semantised was not necessary for the defence of legal views, it links to its inaccurate understanding of the concept of ‘shame’ as an impairment of honour, which is and fails to recognise that, taking into account his freedom of expression, the complainant must not be limited to what is necessary to justify his legal opinion.

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