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Case:
BVerfGE 93, 266 - 312 I. Senate Soldiers-murderers 1 BvR 1476, 1980/91 and 102,221/92
Date:
10 October 1995
Note:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mr. Raymond Youngs
Copyright:
Professor B. S. Markesinis

Facts:

These constitutional complaints are about criminal court convictions for “insult” [in the sense of the Criminal Code] of the Federal Army and individual soldiers by statements like "Soldiers are murderers" or "Soldiers are potential murderers".

The first complainant (1 BvR 1476/91) displayed a blanket with the words (in English) "A SOLDIER IS A MURDER" written on it in red at a cross roads where NATO manoeuvres were taking place.

The second complainant (Case 1 BvR 1980/91) distributed a leaflet written by him at an exhibition by the Federal Army at a college in his hometown. It stated as follows:
"Are soldiers potential murderers?
One thing is clear:
Soldiers are trained to be murderers. "Thou shall not kill" is changed to "Thou shall kill". World wide. And in the Federal Army too.
Mass extermination, murder, destruction, brutality, torture, mercilessness, terror, threats, inhumanity, revenge, retaliation...
...practiced in peace,
...perfected in war.
That is the trade of soldiers.
World wide. And in the Federal Army too.
If soldiers carry out "their duty", give commands and obey commands, then civilians are in for it.
Militarism kills, even without weapons and even without war.
There is only one answer to this:
For peace, disarmament and humanity - refuse military service!
Resistance against militarism!"

A soldier R, and the Federal Defence Minister, started criminal proceedings in respect of this.

The Amtsgericht fined the complainant for insult of soldiers and the Federal Army. An appeal and a further appeal in law against this were unsuccessful.

The third complainant (Case 1 BvR 102/92) wrote a letter, which was published in a newspaper after Dr. A was acquitted in the "Frankfurt soldiers trial". The letter repeated the "soldiers-are-murderers" quote from Kurt Tucholsky in 1931. The third complainant then argued that a decision in favour of military defence and an army always includes readiness for war and for mass murder legitimated by the state. He concluded with a declaration of complete solidarity with Dr. A and stated "All soldiers are potential murderers!". The Amtsgericht and the Landgericht fined the third complainant in several criminal prosecutions by members of the Federal Army, for insult of every member of the Federal Army (and therefore of the prosecutors). The Oberlandesgericht rejected his appeal in law.

The fourth complainant (Case 1 BvR 221/92) appeared with five other people at a Federal Army information stand at a motorbike show. Some of them distributed leaflets; the fourth complainant and another person held up a banner on which were the words: "Soldiers are potential MURDERERS". The lower third of the word murderers had "conscientious objectors" written across it. The leaflet lamented the fact that the Federal Army only presented the fascination of technology but was silent about the reality of war. The other side of the leaflet consisted of pictures of weapons and the victims of war.

The Federal Constitutional Court quashed the criminal convictions and referred the cases back to the criminal courts. The grounds for the decision are given only insofar as they relate to the second and third complainants. Part of the dissenting judgment by Judge Haas is also given.

Reasons:

The constitutional complaints are, insofar as they are permissible, well founded. The decisions challenged did not have sufficient regard to the basic right of the complainants under Art 5 (1) sentence 1 GG. [Constitution of 1949].

I.

1. The statements for which the complainants have been punished for insult enjoy the protection of Art 5 (1) sentence 1 GG.

This constitutional norm gives everyone the right to express and disseminate his opinion freely in word, writing, and picture. In contrast to assertions of fact, opinions are characterised by the subjective attitude of the person expressing himself to the object of the statement [reference omitted]. They contain his judgement about facts, ideas or persons. The protection of the basic right relates to this personal attitude. It therefore exists independently of whether the statement is rational or emotional, well founded or groundless, or regarded by others as useful or harmful, valuable or valueless [references omitted]. The protection does not only relate to the content of the statement, but also to its form. The fact that a statement is formulated in a polemical or hurtful way does not remove it from the area of protection of the basic right [references omitted]. Further, the choice of the place and time of a statement is protected. The person making the statement does not only have the right in general to make his opinion known. He may also choose for it those circumstances from which he expects the widest dissemination or the strongest effect of making it known.

The statements for which the complainants have been punished for insult are opinions in this sense, which are always covered by the protection of the basic right. The complainants in their statements that soldiers are murderers or potential murderers did not claim that, particular soldiers had committed a murder in the past. They were instead expressing a judgement about soldiers and about the profession of soldier which under certain circumstances compels the killing of other human beings. The criminal courts also proceeded on the basis that it was a value judgement, not an assertion about facts.

2. Punishment for these statements is an intrusion into the protected area of the basic right to freedom of opinion.

3. The basic right to freedom of opinion is certainly not guaranteed without reservation. According to Art 5 (2) GG it is limited by the provisions of general statutes, the statutory provisions for the protection of young people, and the right to personal honour. § 185 StGB, which forms the basis of the decisions that are being challenged, belongs to this category. In order to be able to support the conviction, the provision must agree with the Basic Law and besides this be interpreted and applied in a constitutional manner (see BVerfGE 7, 198 [208f.]; constant case law).

II.

No effective constitutional law objections exist against § 185 StGB.

1. The criminal provision is reconcilable with Art 5 (1) sentence 1 GG.

a) The provision primarily protects personal honour. Within the framework of the general right of personality derived from Art 2 (1) in combination with Art 1 (1) GG honour, itself, enjoys basic right protection [reference omitted]. It can primarily be harmed by expressions of opinion. Therefore it is expressly recognised in Art 5 (2) GG as a ground justifying limitations on the freedom of opinion. It certainly does not follow from this that the legislature could limit freedom of opinion in the interest of personal honour as it pleases (see BVerfGE 7, 198 [208]). It should instead, when making use of the authorisation in Art 5 (2) GG, keep in mind the restricted basic right, and avoid excessive limitations of freedom of opinion. However, § 193 StGB takes account of this requirement in that it excludes punishment for a statement that has been made for the protection of justified interests. This provision, which is to be taken into consideration before any conviction under § 185 StGB, is widely formulated. It is therefore open to the influence of freedom of opinion in a special way, and permits a careful adjustment of the conflicting legal interests [reference omitted].

b) As may be deduced from § 194, III, sentence 2, StGB, the protection of § 185 StGB does not only apply to persons. It also applies to authorities or other offices, which look after tasks of public administration. The norm cannot be justified here from the point of view of personal honour, because state institutions have no personal honour, nor can they have the general right of personality. § 185 StGB as a protective norm in favour of state institutions ranks however with the general laws in the sense of Art 5 (2) GG. This is to be understood as including all laws which do not forbid an opinion as such and are not directed against the expression of the opinion as such, but serve to protect a legal interest which is simply to be protected, without regard to any particular opinion. (See BVerfGE 7, 198 [209]; constant case law). That is the case with § 185 StGB. State institutions cannot fulfil their function without a minimum degree of social acceptance. They ought, therefore, in principle to be protected from verbal onslaughts which threaten to undermine this prerequisite [reference omitted]. The criminal law protection ought not however to lead to state institutions being shielded from public criticism, even if it takes a harsh form. This should be guaranteed in a special way by the basic right of freedom of opinion [reference omitted]. But § 193 StGB again takes sufficient account of this requirement, as it gives room for the influence of Art 5 (1) sentence 1 GG. It acquires increased significance if § 185 StGB is used for the protection of public institutions and not for the protection of personal honour.

2. § 185 StGB is also not too uncertain and therefore does not violate Art 103 (2) GG. [Details follow].

III.

The interpretation and application of criminal statutes are matters for the criminal courts. But for statutes which limit the freedom of opinion, according to a constant case law of the Federal Constitutional Court, the restricted basic right is at the same time to be taken into account so that its significance in setting values remains intact even at the level of application of the law (see BVerfGE 7, 198 [208f.]).

1. At the level of interpretation of the norm, Art 5 (1) sentence 1 GG requires a balancing operation, between the importance on the one hand of freedom of opinion and on the other hand of the legal interest for the benefit of which it has been limited. This is to be undertaken within the framework of the features of the definition of the statutes concerned. An interpretation of § 185 StGB would therefore be incompatible if it extends the concept of insult so widely that it exceeds the requirements of the protection of honour or protection of institutions [reference omitted] or leaves no more room for taking freedom of opinion into consideration [reference omitted]. Likewise Art 5 (1) sentence 1 GG forbids an interpretation of §§ 185 ff. StGB by which people would be deterred from the use of the basic right, which would lead to even permissible criticism remaining unspoken through fear of sanctions [reference omitted].

Especially in relation to the interpretation of § 193 StGB, weight must be given to the fact that freedom of opinion is simply constitutive for the free democratic order (see BVerfGE 7, 198 [208]). A justified interest can therefore exist not only when the person affected has himself given cause for the statement or when someone defends himself against personal attacks, but also if he participates in a public debate about questions which are socially or politically relevant [reference omitted]. Special account must be taken of this if the provisions for the protection of honour in §§ 185 ff. StGB are applied not to persons but to state institutions. They do not then serve the protection of personal honour, but seek to guarantee the public recognition needed by state institutions to fulfil their function. If this protective aim comes into conflict with the freedom of opinion, the importance of that freedom is to be rated particularly highly because the basic right has grown from the special need for protecting the criticism of authority and invariably is of importance here.

2. At the level of application of §§ 185 ff. StGB in the individual case, Art 5 (1) sentence 1 GG requires weighing of the injury threatened to personal honour on the one hand and to freedom of opinion on the other. In this connection all the material circumstances are to be considered (see BVerfGE 7, 198 [212]; constant case law). The result of this balancing operation cannot be determined in advance in a general and abstract manner, because of its relationship to the facts of the individual case. But in the case law a series of approaches have been developed which provide criteria for the actual balancing operation.

Freedom of opinion must always take second place if the statement violates the human dignity of another. This principle, stated in relation to artistic freedom [reference omitted], is valid for freedom of opinion as well, because human dignity, as the root of all the basic rights, is not capable of being weighed against any individual basic right. But as not merely the individual basic rights but also the basic rights as a whole are concrete manifestations of the principle of human dignity, it always needs careful reasoning if it is to be assumed that the use of a basic right affects inviolable human dignity.

Likewise, where disparaging statements are concerned which appear to be insult in the formal sense or abuse, freedom of opinion as a rule takes second place to protection of honour [reference omitted]. But because of its effect in suppressing freedom of opinion, the Federal Constitutional Court has defined narrowly the concept of abusive criticism developed in the specialist courts. According to this, an exaggerated or even rude criticism does not of itself turn a statement into abuse. Instead, the prominent feature about the statement should be defamation of the person rather than debate about the issue. It must be personal disparagement beyond even polemical and overstated criticism [reference omitted]. On this basis abusive criticism will only exceptionally be present in statements about a question materially affecting the public and incidentally will more be limited to the so-called private feud [reference omitted]. If a court incorrectly holds a statement to be insult in the formal sense or abuse the result will be to dispense with an actual balancing exercise taking into account all the circumstances of the individual case. There will then be a material error in constitutional law here, which will lead to the quashing of the decision if this is based on it [reference omitted].

If the statement can be classified neither as an attack on human dignity nor as insult in the formal sense nor abuse then, for the purposes of the balancing exercise, it is a question of the seriousness of the interference with the legal interests affected. But here, in contrast to the case of assertions of facts, whether the criticism is justified or the value judgement is "right" plays in principle no role [references omitted]. On the other hand, weight must be given to the question of whether use is being made of the basic right of freedom of opinion, within the framework of a private dispute, for the pursuit of personal interests or in connection with a question materially affecting the public. If the statement in question represents a contribution to formation of public opinion, according to constant case law of the Federal Constitutional Court, there is a presumption in favour of the freedom of speech (see BVerfGE 7, 198 [208, 212]; reference omitted]. Deviations from this consequently need a basis that takes account of the constitutive importance of freedom of opinion for democracy, in which the presumption is rooted.

3. A prerequisite of every legal assessment of a statement is that its sense has been understood accurately. If this is absent in a conviction for a crime relating to a statement, this can lead to suppression of a permissible statement. Besides this, the danger exists that such a conviction would operate disadvantageously for the exercise of the basic right of freedom of opinion in general, because those wishing to make statements would risk punishment because of remote or untenable meanings of their statements [reference omitted]. Under these circumstances preliminary decisions are made at the level of meaning about the permissibility or impermissibility of statements. Art 5 (1) sentence 1 GG therefore generates requirements not only about the interpretation and application of statutes restricting the basic right, but also requirements about the meaning of the statements in question.

The purpose of the meaning is the communication of the objective sense of a statement. Neither the subjective intention of the person making the statement nor the subjective understanding of the person affected by the statement is therefore decisive. It is instead the sense that the statement has according to the understanding of an unprejudiced and sensible public. In this connection, the starting point is always the literal meaning of the statement. But this does not establish its sense conclusively. It is also determined from the linguistic context of the statement in question and the accompanying circumstances in which it is made, insofar as these can be known to the recipient. The isolated study of a disputed part of a statement does not therefore as a rule fulfil the requirement for reliably deducing its sense [reference omitted].

Judgments that clearly overlook the sense of the statement in dispute and base their legal assessment upon this violate the basic right of freedom of opinion. The same applies if a court faced with statements with more than one meaning takes as a basis the meaning leading to the conviction without having previously excluded the other possible meanings on conclusive grounds [reference omitted]. In this connection the court does not of course need to go into remote alternatives supported neither by the literal meaning nor by the circumstances of the statement. Nor does it have to develop abstractly possible meanings for which there are no grounds of any kind in the actual circumstances. If, however, the wording or the circumstances permit a meaning that is not defamatory, a criminal conviction which ignores this violates Art 5 (1) sentence 1 GG. It must also be taken into consideration here that many words or concepts can have different meanings in different communication contexts. This is amongst other situations the case with concepts that are used in legal specialist terminology in a different sense than in colloquial speech. It is therefore also an error of substance in constitutional law if the sense specific to a specialism is taken as the basis of the conviction even though the statement was made in a colloquial context (see BVerfGE 7, 198 [227]; [reference omitted]).

The requirements which Art 5 (1) sentence 1 GG makes for deducing the sense of statements are subject to examination by the Federal Constitutional Court and especially when, as with criminal decisions, it is a matter of an intensive invasion of a basic right. The Federal Constitutional Court has always emphasised this [references omitted]. There is no deviation in this from the constant case law on the extent of the authority of the Federal Constitutional Court to carry out an examination [references omitted]. This is because even in the case of conviction for crimes relating to statements, the Federal Constitutional Court only examines whether the courts have misunderstood the meaning and scope of the basic right of freedom of opinion. Otherwise it remains a matter for the sole competence of the specialist courts. In connection with crimes relating to statements, the enquiry focuses on whether the statement was in fact made. It also looks at what literal meaning it had, from whom the statement originated, and under what circumstances was it made - especially if the findings are based on the totality of the impression given at the oral hearing [reference omitted]. The contents of the minority judgment which deviate from this constant case law provide no cause for the giving up what has been the practice so far and for the restriction of the basic right protection for statements of opinion.

IV.

The decisions under challenge do not completely fulfil these requirements.

1. It certainly meets with no objection that the courts saw in the description of a soldier as a murderer a grave attack on his honour. Even if this description is not accompanied by an accusation that the person concerned actually committed murders, rating him on a level with a murderer still remains a deep insult. This weighs particularly heavily if the expression is used in the criminal law sense by incorporating the subjective characteristics of murder of § 211 StGB. But it is also so if it is used in the colloquial sense, because in this case, also, it describes a person who contributes (or is ready to do so) to the destruction of human life in a morally unjustifiable manner. In this there is likewise a condemnation of such a nature as appreciably to disparage the person affected in the eyes of those around him. That applies especially if the accusation refers not to occasional behaviour but to the totality of vocational activity.

But the courts have not sufficiently ensured that the statements for which punishment was imposed also really did have this sense. They ought to have investigated alternative meanings insofar as these would have been assessed more leniently in criminal law. Otherwise the danger exists that the person making the statement will be punished for a statement which does not contain the assumed insult. The courts ought not to have closed their eyes to such alternatives by an isolated consideration of the criminalised part of the statement. Consideration must, instead, be given to the context insofar as this was perceivable by the addressees of the statement. That applies first to the linguistic context of the statement in dispute, but can also include circumstances external to the statement.

In the present cases, there were alternatives to the meaning assumed by the courts that the soldiers in the Federal Army were equated to murderers in the criminal law or in the colloquial sense (implying that they were capable of committing especially despicable behaviour against other human beings). That arises principally from two circumstances.

Firstly the statements of the complainants according to their literal meaning refer to soldiers in general, without exception, but not to individual soldiers or specially to those of the Federal Army. If the Federal Army is also occasionally mentioned, that only occurs in order to confirm that the statement about all soldiers also applies to the soldiers of the Federal Army. This circumstance had to give cause to reflect whether the statement might not simply be directed against soldiery and soldiering; and that this was condemned because it was connected with the killing of other human beings which may take place in a cruel way and also affects the civil population. The fact that the complainants predominantly did not speak impersonally of "murder" but personally of "murderer" is, taken on its own, not sufficient to exclude this meaning. This is because an accusation against the individual soldier of seriously criminal conduct or a seriously criminal attitude need not necessarily be contained even in the use of the word "murderer". The person making the statement may instead be drawing attention in an especially challenging form to the fact that killing in war is not an impersonal event but is effected by a human hand. It should not therefore be excluded from the outset that the phraseology was to awaken consciousness of personal responsibility with those carrying out military service and those in a soldier's vocation for the totality of the events condemned and thus foster preparedness to become conscientious objectors.

Secondly, the statements that soldiers are murderers or potential murderers are, as to the second, third, and fourth complainants, in a wider linguistic context. This was as to the second complainant in the form of a leaflet, as to the third complainant in the form of a reader's letter, and as to the fourth complainant in the form of leaflet used together with the banner and distributed simultaneously at the Federal Army stand. It was predominantly concerned with the destruction of human life, amongst soldiers as well as in the civil population, as an accepted consequence of the maintenance of armies and the associated readiness to carry on war, whether for the purposes of attack or defence. On the other hand it was not a question of criticism of especially reprehensible individual behaviour or even of character defects of soldiers. From the context of the criminalised statements, there are no grounds at all for equating soldiers with murderers in the sense of fulfilling the subjective characteristics of murder of § 211 StGB.

2. Further, it is not open to objection constitutionally that the courts in certain circumstances see an attack on the personal honour of the members of a collective in a disparaging statement which neither names nor recognisably refers to certain persons, but covers the collective without any individual classification of it.

The personal honour of a human being, which should be protected from attacks by the threat of punishment under § 185 StGB, cannot be regarded in a purely individual way, removed from the collective relationships in which he stands. The individual moves in numerous interrelations, which transcend his individuality, some of which he chooses freely and some of which he must accept without any involvement by him. On the basis of these he is subject to expectations about roles and behaviour. He is also more or less identified by those around him with the collectives to which he belongs and the social roles that he plays. His reputation in society depends in these circumstances not only on his individual qualities and behaviour but also on the characteristics and activities of the groups to which he belongs, or of the institutions in which he is active. In this respect disparaging statements about collectives can also adversely affect the honour of their members.

In the case of disparaging statements based on a collective term, the boundary certainly cannot be precisely drawn between two things. One is an attack on personal honour, which is protected by Art 2 (1) in combination with Art 1 (1) GG and which according to Art 5 (2) GG justifies restrictions on freedom of opinion. The other is criticism of social phenomena, institutions of state or society or social roles and role expectations for which Art 5 (1) sentence 1 GG guarantees free scope. The danger of excessive limitations on freedom of opinion is therefore always inherent in punishment for statements of this kind. Certain foreign legal systems, in particular those of the Anglo-Saxon legal family, do not therefore recognise collective insult at all and only punish injury to honour which expressly or recognisably refers to individuals. (See, for instance, Robertson / Nicol, Media Law, 3rd edition (1992), 57.)

Whether § 185 StGB could also be interpreted in this way is not for decision here. The Basic Law does not in any case demand such a restrictive interpretation of the provisions for the protection of honour. But when § 185 StGB is applied to disparaging statements related to a collective name, it is always necessary to examine whether they really impugn the "personal" honour of the individual members of the group. Above all it must be taken into account that it ought not to extend to the suppression of critical statements about political and social phenomena or institutions for which the protection of freedom of opinion applies in a special way. Criminal jurisprudence also emphasises this [reference omitted].

The courts have in this connection relied on a decision of the Bundesgerichtshof which was in fact made because of disparaging statements about soldiers [reference omitted]. The Bundesgerichtshof proceeds in this decision on the basis that the requirements which the Reichsgericht had placed on the criminality of collective insults, namely that the group must be delimitable and easily comprehensible, did not satisfy the demands of the rule of law as to the limiting of definitions of criminal acts. The Bundesgerichtshof, therefore, requires additionally that the disparaging statement should be linked to a characteristic, which is present with all members of the collective. A link to characteristics, which certainly apply to some but obviously not to all members, does not, according to this case law, diminish the personal honour of each individual member. As it would be clear to every addressee of such a statement that every individual cannot be intended, and particular persons are not named no one is insulted by such a statement.

The Bundesgerichtshof obviously proceeds on the basis that even after this delimitation, very large collectives still remain whose members would have to be treated as personally insulted by disparaging statements related to a collective description. In order to avoid this, it adheres to the view that disparaging statements about groups so large as not to be easily comprehensible (like all Catholics or Protestants, all trade union members, or all women) do not affect the personal honour of every individual member of the group. Criminal jurisprudence also accepts that otherwise the limiting of the definition of the criminal act that is held to be necessary would again be sacrificed [references omitted].

This interpretation takes account of the point of view of freedom of opinion. Art 2 (1) in combination with Art 1 (1) GG as well as Art 5 (2) GG serve to protect personal honour. The larger the collective to which a disparaging statement refers, the weaker the extent to which an individual member can be personally affected. This is because with accusations against large groups, it is mostly not a question of individual inappropriate behaviour or individual characteristics of the members, but of the demerits, as they exist in the view of the speaker, of the group and of its social function, as well as the requirements for the behaviour of the members connected with this. Thus, on the one end of the scale we find the insult of a single person described by name or otherwise rendered identifiable, and on the other pejorative statements about human qualities or the criticism of social institutions or phenomena that are not, as such, able to affect the personal honour of an individual.

These considerations also apply to disparaging statements about soldiers, so far as they refer to all soldiers in the world. On the other hand, the criminal courts are not prevented on constitutional grounds from seeing in the (active) soldiers of the Federal Army a group that is sufficiently easily comprehensible. Therefore a statement which refers to them can also insult every individual member of the Federal Army if it is linked to a characteristic which obviously or at least typically applies to all members of the collective.

It is inconsistent to apply specifically to soldiers of the Federal Army a disparaging statement, which without closer delimitation has all soldiers as its object, just because these soldiers are part of soldiers as a whole. As all large collectives divide into smaller sub-groups, even an entirely non-specific and therefore innocent statement changes by the application of it to any of them into a personal and therefore criminal insult. The limiting of the definition of the criminal act undertaken by the Bundesgerichtshof on the grounds of the rule of law is thereby in effect removed again.

This inconsistency is also pertinent in constitutional law. Freedom of opinion may only be limited to the extent that is necessary for the protection of personal honour, and this is not affected by disparaging statements about large collectives which are not easily comprehensible. Therefore according to the view of the criminal courts which is not open to objection on constitutional law grounds, punishment for statements of this kind represents an impermissible restriction of Art 5 (1) sentence 1 GG. If someone who has made a disparaging statement about soldiers in general is punished for insult of soldiers of the Federal Army, it does not therefore suffice to show that the soldiers of the Federal Army form a sub-group of all soldiers. It must, instead, be demonstrated that it is the soldiers of the Federal Army that are meant, even though the statement refers simply to soldiers. Such a divergence of linguistic form and objective sense is not by any means impossible. But the courts must then identify the circumstances from which the understanding arises, even though it is not discernible from the literal meaning of the statement alone. If there are none, a violation of Art 5 (1) sentence 1 GG is present.

3. Finally there is no constitutional law objection to the courts balancing freedom of opinion and protection of honour and giving preference to the latter when there is no wider contribution to discussion about the issue in the statement in dispute, defamation of the person being the dominant feature. That corresponds to the case law of the Federal Constitutional Court on abusive criticism.

But it is a prerequisite that the statement in question really amounts to abusive criticism. The courts have assumed this predominantly with reference to the decision of the Bavarian Obersten Landesgericht referred to [reference omitted], which concerned a very similar statement about soldiers. It is true that this decision reproduces accurately the principles on abusive criticism developed in the constitutional case law; but it does not orientate the application of the law to this sufficiently. The narrow concept of abuse developed in the constitutional case law taking freedom of opinion into consideration does not form the basis of the minority judgment either.

The characteristic of abuse is personal insult forcing the objective issue completely into the background. For the complainants, however, it was obviously a question of a debate about the issue, in fact about the question of whether war and military service and the killing of human beings connected with it are morally justified or not. That arises for the second, third and fourth complainants from the context of the criminalised statement which the courts had to consider under the label of abusive criticism. As to the first complainant, the choice of the word "murder" instead of "murderer" as well as the situational context at least point in this direction. The conflict between preparedness for defence and pacifism is a question substantially affecting the public as to which there is a presumption in favour of freedom of speech. In the face of this the courts would have had to demonstrate that in the actual statements, even taking into consideration their context, debate about the issue had been forced into the background by defamation of people.

But there are no doubts about this, for the very reason that the statements according to their literal meaning did not refer to particular persons but covered all soldiers without distinction. It is certainly not impossible that even with disparaging statements about large collectives, defamation of the persons belonging to them is the dominant feature. That applies especially if the statements are connected to ethnic, racial, physical or intellectual characteristics from which the inferiority of a whole group of persons and therefore at the same time every individual member is deduced. But as a rule only statements about definite persons or associations of persons will come to be considered as abusive criticism. The concept has only been used in this sense so far in the case law of the Federal Constitutional Court and the Bundesgerichtshof [references omitted]. If, on the other hand, it is a question of groups of persons that are united by a definite social function, it is rather to be presumed that the statement is not characterised by defamation of persons but is linked to the activity undertaken by them. The statement can then nevertheless be injurious to honour. But it no longer falls within the concept of abusive criticism, which makes superfluous an actual balancing exercise with the interests of freedom of opinion, taking into consideration all the circumstances of the case.

Contrary to the minority judgment, no different assessment is required just because the statement affects soldiers. In particular, the circumstance that soldiers carry out armed service, are called up for this purpose by the state as conscripts and in this connection must show obedience does not make their personal honour more worthy of protection than that of members of groups of the civil population. A constitutional law principle according to which certain duties of obedience are to be compensated by increased protection of honour does not exist. The fact that someone who is abused has a claim to state protection of his honour is rather the product of the constitutional law protection of the personality, which is the right of all human beings in the same way. The protection does not of course make the proof that the statement in dispute is injurious to honour or even abusive unnecessary, but makes it a prerequisite.

V.

For the individual decisions which have been the subject of a permissible challenge, the following applies: ...
2. Case 1 BvR 1980/91

a) According to the opinion of the Amtsgericht, the statement of the complainant gives expression to the view "that every soldier at the end of his training is a murderer, someone who kills out of a reprehensible state of mind". The court has no more explained what this interpretation is based on than it has considered alternative possible interpretations of the leaflet. It has instead described the interpretation presented by the complainant as "insignificant", because the statement could have no other sense than the one assumed. However the leaflet itself as composed by the complainant would have offered clues for other interpretations. It is true that it uses the noun "murderer" in connection with the training goal of the military, but in characterising a soldier's activity reverts immediately to the verb "killing" for which in the German language there is no corresponding noun. For this reason the concept of the murderer is common in colloquial speech even for persons who have killed without fulfilling the characteristics of murder in § 211 StGB. The text which follows, with its allusion to "soldier's trade" and "militarism", also makes it appear possible that the complainant did not make the accusation against soldiers of killing out of a reprehensible state of mind, but indicated the possible consequences of soldiers' training and the conduct of war.

The court has not explained to what extent the statement referred to the soldier R (who laid the criminal charge) as a member of the Federal Army (rather than as a statement about all soldiers - a group not easily comprehensible - leaving his personal honour unaffected).

The protection of justified interests has been denied to the complainant by the assertion that his text debased human dignity, and overstepped the boundary between sharp criticism and polemical defamation. A reason is lacking for both these claims. The court has thereby evaded the necessity for a balancing between freedom of opinion and protection of honour.

For the further assumption that the statement insulted not only individual soldiers but also the Federal Army as a whole the court limited itself to the comment that the capacity of the Federal Army to be insulted was recognised. But it neither explained how far the Federal Army had in fact been insulted, nor set out why the disparagement of its reputation is of greater weight than the interference with freedom of opinion.

b) The Landgericht also did not concern itself with an interpretation of the statement, but contented itself with the finding that the complainant had answered the question put by himself as to whether soldiers were potential murderers in the affirmative. It certainly reproduced in detail the complainant's understanding associated with his statement, but did not investigate it.

In contrast to the Amtsgericht, the Landgericht did explain how the disparaging statement referred to soldiers of the Federal Army and thereby also to the soldier R who laid the criminal charge. That is inferred from the fact that in the text of the leaflet the Federal Army had been "twice mentioned expressly by the phrase 'in the Federal Army'". But the text of the leaflet does not support this meaning. The Landgericht ignored the fact that in both cases general statements were made about soldiers as well as about soldiers' trade. The universal validity of these statements was expressed by the complainant by the word "world wide" immediately preceding the words "in the Federal Army as well" on two occasions. Grounds were therefore needed for saying why the statement nevertheless referred not to all the soldiers in the world but to those of the Federal Army.

The Landgericht denied that justified interests were being protected because it regarded the statement as abuse for which freedom of opinion always takes second place to protection of the personality. It gave as its reasoning that the disparagement of the reputation of soldiers played a dominant role because murder was to be regarded as killing due to a reprehensible state of mind. In its view, equating soldiers with murderers was not substantially mitigated by the "supposed" extension of the statement to cover all soldiers of the world and by the addition of the word "potential". However, the whole content of the leaflet, as well as the cause for its distribution, should have given grounds for considering whether it contained in substance a defamation of persons or whether it was merely a contribution to a wider public debate which, as a rule, excludes the assumption of abusive criticism.

The judgment lacks a basis for saying that the Federal Army has been insulted as a whole.

c) The decision of the court hearing the appeal in law suffers from the same defects as the judgment of the appeal court.

3. Case 1 BvR 102/92

a) The judgment of the Landgericht contains no explanations about the meaning of the statement in dispute. The Landgericht proceeded instead simply on the basis that it was a question of an insult to honour.

On the other hand it obviously gave legal significance to and investigated the objection of the complainant that his statement referred to all soldiers of the world and thereby to a group which was not capable of being insulted because it was not easily comprehensible. It sought, however, to refute this with the argument that the complainant had in his reader's letter declared solidarity with Dr A, the accused in the so-called Frankfurt soldiers trial, whose statement that every soldier was a potential murderer also referred to Captain W (who was present) because he was likewise a soldier. Apart from the fact that the conclusion that the complainant had thereby directed his statement at the soldiers of the Federal Army does not follow from this, the reasoning in other respects also does not stand up to examination. If a disparaging statement refers to all soldiers in the world and thereby to individual soldiers only insofar as these form a part of the totality of all soldiers, then those soldiers are not more precisely identified. The assumption that, contrary to the text of the reader's letter, the statement does not cover all the soldiers of the world but specially the soldiers of the Federal Army, would therefore have required further findings.

The Landgericht omitted to carry out a balancing between freedom of opinion and the protection of honour, indicating that it was a question of abusive criticism. The judgment does not contain a separate reason for this. Instead it reproduces the considerations of the Bavarian Obersten Landegericht in the decision mentioned and explains that nothing is to be added to this. No subsuming under the principles developed there is undertaken. But the assumption that it is a question of abusive criticism is prevented in the present case because of the context in which the statement in dispute stood. This made clear that for the author it was a question of the problematic issue of the support of the military and the readiness to kill in war connected with this. Whether he had expressed that in a way which takes account of the requirements of the protection of honour must therefore be elucidated by a balancing exercise based on the actual case.

The decision of the Oberlandesgericht shows the same defects as the appeal judgment...

VI.

It is possible that in any of the four cases the courts would have come to other conclusions if they had considered the other possible and natural interpretations of the statements; taken account of the difference between a disparaging statement about all soldiers of the world and the soldiers of the Federal Army; and applied the concept of abusive criticism in a constitutional manner. The decisions under challenge must therefore be quashed and the cases referred back. But this does amount to an acquittal of the complainants nor to a declaration that insults of individual soldiers or of the members of specific armed forces by statements like "soldiers are murderers" are permissible. Rather the actual statements must be assessed afresh taking into consideration the requirements of Art 5 (1) sentence 1 GG which have been explained.

This decision is made in respect of the first, third and fourth constitutional complaints by a majority of five votes to three, and in respect of the outcome of the second constitutional complaint unanimously.

Dissenting opinion of Judge Dr Haas on the decision of the First Senate on 10 October 1995 - 1 BvR 1476/91 and 102, 221/92 - I do not share the opinion of the majority of the Senate that the decisions of the Bavarian Obersten Landesgericht and the Oberlandesgericht of Koblenz as well as the Landgericht judgments (as the courts of last instance for the finding of facts) are unconstitutional. The basic right of the complainant under Art 5 (1) GG is not violated. The freedom of expression of opinion is limited by the right to personal honour.

1. The courts in the initial proceedings have made a correct legal assessment of the facts, on the basis of the findings made by them. This is to the effect that the statement "soldiers are murderers" or "soldiers are potential murderers" contains a negative value judgement about soldiers of the Federal Army, which is not open to another interpretation, taking into consideration the content of the expression in colloquial speech, than that which they gave it. This is not open to objection in constitutional law.

In principle the position is as follows: the elucidation and assessment of the facts of a case are a matter for the specialist courts. The Federal Constitutional Court in constant case law proceeds on the basis that court decisions can only be examined within narrow boundaries under the constitutional complaints procedure. In particular it considers that the establishment and assessment of the facts of a case and the interpretation of ordinary law and its application to the individual case are matters for the courts which have general jurisdiction for this and are removed from the scope of examination undertaken by the Federal Constitutional Court. [references omitted]. The Federal Constitutional Court has stressed its special function and position in relation to other holders of judicial power. It has therefore always emphasised that it could not put its own assessment of the circumstances of the individual case in the manner of a court of appeal [reference omitted] in place of that of the competent judge where the assessment of the established circumstances is decisive for the constitutional law judgement [reference omitted].

I cannot subscribe to the laying down by the Senate of another yardstick for testing the interpretation of statements, nor its application sometimes of the "full" constitutional law examination [reference omitted]. Nor can I accept it requiring that the judge of fact must, from several possible interpretations, choose one which has a "convicting" [references omitted] or "conclusive" [reference omitted] basis. "Conviction" (whose?) is not a constitutional law yardstick; "conclusiveness" cannot be required in the assessment of statements, because understanding follows its own laws, not simply those of logic [reference omitted]. Finally, the wider yardstick for examination has led to the Federal Constitutional Court claiming for itself extensively the interpretation competence of a judge of fact. It has also resulted in it interfering in areas of decision-making which are reserved to the specialist jurisdiction which is closer to the case with its specific opportunities for elucidation and especially investigation in the oral hearing. This is meeting with increasing criticism [references omitted]. It is not clear which special features could justify or even require a more thorough examination here. The fact that the constitutional law assessment under Art 5 (1) GG depends upon the outcome of the assessment of the facts of the case does not suffice for this purpose; it applies to other basic rights in the same manner. Here, as there, the constitutional court control must limit itself to violations of specific constitutional law. It is true that the constitutional complaint opens up to examination by the Federal Constitutional Court the question of whether the circumstances which are important for interpretation purposes have been taken note of by the court, and considered and weighed bearing constitutional law guidelines in mind. Whether the specialist judge has interpreted the sense of an ambiguous statement with accuracy in every respect is however not a question of constitutional law. I cannot therefore share the opinion of the majority of the Senate that the Federal Constitutional Court can nevertheless examine whether all possible interpretations which it recognises as conceivable have been considered by the specialist court.

2. It is quite understandable that the specialist courts, taking into consideration the findings of fact that they have made, should attribute to the concept "murderer" the sense of a negative value judgement of substantial weight. Even on the basis of the view of the majority of the Senate, this interpretation is not open to objection. In colloquial speech, the word "murderer" is associated with a type of criminal who stands out as having a particularly negative profile. Murderers form the most abhorrent category of criminals. There is no evident alternative interpretation that could take away the deep injury to honour from the accusation of being a murderer. Even the majority of the Senate did not produce such an alternative interpretation that could impress the mind of the objective unprejudiced observer. That the word "murder" in case 1 BvR 1476/91 conveys the message that the soldier is at the same time the perpetrator and the victim seems scarcely probable; it would however be unimportant anyway because this interpretation still equates soldiers with murderers [reference omitted]. Finally, the total context of the statement on each occasion also allows no other interpretation. Thus in the case of the complainant in case 1 BvR 221/92 the discriminatory message of the banner which was widely visible was not toned down for individual readers of the leaflet. Regardless of this, an interpretation, which takes into account the text of the leaflet, should not be considered here anyway. This is simply because the specialist court did not establish (and according to all experience of life cannot establish) that all readers of the banner would also have become aware of the content of the leaflet. The specialist court cannot avail itself of an alternative interpretation based on facts not established by it.

What the maker of the statement intended to say is in the end unimportant for interpreting the concept "murderer", if it found no expression in the statement. At first, only what he actually said is in question; the decisive thing is then the objective sense: how the statement was to be understood by the average observer in the position of the recipient of the statement at the point in time when it was communicated. Therefore a possible intention by the complainant to awaken, by the choice of words, consciousness of personal responsibility with those concerned cannot, contrary to the view of the majority of the Senate [reference omitted], influence the truth content of the statement. This is because such an intention changes nothing in the content and sense of the words chosen. Besides this, consideration of such an intention would depend on the specialist court having made appropriate findings; this is lacking, for instance, in case 1 BvR 102/92.

3. The courts established as a fact that the statement which was injurious to honour referred expressly (or obviously, from the total context) to soldiers of the Federal Army. On this basis, the courts could also affirm that the soldiers of the Federal Army (and therefore every single member of the armed forces) was an addressee of the statement. To what extent the arguments of the majority of the Senate on defamation of collectives can be followed can be left undecided here. There are doubts anyway about the majority of the Senate understanding the decision of the Bundesgerichtshof (which was quoted with approval [reference omitted]) as meaning that a characteristic present with all members of the group must be added, besides the criterion of the group being easily comprehensible.

4. The statements of opinion by the complainants are not covered by the right to free expression of opinion (Art 5 (1) GG) which is subject to the reservation of the right to personal honour. It is not evident that the decisions which are under challenge had in this respect misjudged the meaning and scope of the basic right.

The specialist courts have assessed the disparaging comparison of soldiers with murderers as violation of the general right of personality (Art 1 (1) in combination with Art 2 (1) GG) but not as violation of human dignity (Art 1 (1) GG). It might need to be considered whether the accusation of being a murderer does not put in question the moral value of the individual and therefore really affects the essence of the person thus addressed. In any case, the specialist courts have resolved the tension between freedom of opinion and protection of honour in a manner not open to objection in constitutional law. According to the case law of the Federal Constitutional Court, in cases of abusive criticism freedom of opinion regularly takes second place to protection of honour [reference omitted]. Abusive criticism is always to be assumed if the disparaging statement predominates. Accordingly, the mere presence of a reference to an issue insofar as it is discernible as such by persons to whom the statement is communicated does not get rid of the charge of abusive criticism [reference omitted]. The specialist courts, in balancing all the factual circumstances of the individual case, which is a matter for them, came to the conclusion that abusing soldiers dominated the rest of what happened in such a way that the possible expression at the same time of concern about an objective issue takes second place. If - as in the case of the complainant in case 1 BvR 1476/91 - in default of any additional factor going beyond the literal defamatory meaning of the banner an ascertained or even only ascertainable concern with an objective issue is not discernible by the passing observer, this is obvious and needs no special reasoning to support it. In the two other cases as well, the balancing exercise undertaken by the specialist courts is not open to objection from this point of view.

It is not by chance that the Basic Law has expressly named the right to personal honour as a limitation of freedom of opinion. Even without this special emphasis, the right to personal honour as an expression of the personality and as a result of human dignity (which it is the responsibility of all state power to protect and to respect: Art 1 (1) GG) would acquire importance of such a nature as to set limits, especially with public statements. This was not sufficient for the author of the Constitution. He wanted, by the limiting of freedom of opinion which is anchored in the Basic Law, emphatically to counteract any spilling over of the conflict of political opinions into the personal realm. Because the protection of honour until then was, against the background of experiences principally in the time of the Weimar Republic [reference omitted], seen on all sides as insufficient, the right to personal honour was taken into the Basic Law in 1949 as an express limitation of freedom of opinion. A basis for the protection of honour which deserves the name was thereby laid [reference omitted]. This protection of honour was not contested in the deliberations of the Parliamentary Council from beginning to end [reference omitted]. What was self-evident at the time still deserves attention even today. Renunciation of personal defamation in the process of formation of political opinion can only promote this, in that it elevates the culture of political argument.

For public statements with reference to members of the German armed forces this must apply so much the more since these soldiers are under a duty to fulfil the task of defence provided for in constitutional law to the best of their powers. They risk their lives in order to keep the horror of war from the civil population and to protect the lives of that population - and not least the lives of those who disparage their activities and make them contemptible in the eyes of the public. A legal order which obliges young men to carry out armed service and requires obedience from them must guarantee protection to those who fulfil these duties when they are abused because of this service as soldiers and publicly described as murderers. It is not a question here of the construction of a special "soldier's honour". It is a question of the simple self-evident fact that the Constitution, if it does not want to lose its credibility, ought not to leave without protection those who follow its commands and (exclusively) for that very reason are attacked. The correlation between protection and obedience belongs to the elementary principles of a legal order. This cannot be and ought not to be left out of consideration.

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