HEADNOTES:

1.__Art. 5 (3) first sentence GG does not generally rule out punishment under § 90a(1) no.2 of the Criminal Code [StGB] for disparaging the anthem of the Federal Republic of Germany.

2.__Only the third verse of the Deutschland Song is protected as a state symbol.

Order of the First Panel of 7 March 1990 – 1 BvR 1215/87 –
_in the proceedings of the constitutional complaint ... - against the decision of the Bavarian Higher Court of 31 August 1987 - RReg. 5 St 153/87 -.

DECISION:

The decision of the Bavarian Higher Court of 31 August 1987 - RReg. 5 St 153/87 - infringes the complainant's fundamental rights under article 5(3), first sentence, of the Basic Law. Over and above that, it violates his right under article 103(2) of the Basic law in so far as the conviction concerns the first two verses of the Deutschland Song. The decision is reversed. The matter is referred back to the Bavarian Higher Court.

The Free State of Bavaria has to reimburse the complainant for the necessary expenses.

EXTRACT FROM GROUNDS:

A.

The complainant objects to his punishment for disparaging the anthem of the Federal Republic of Germany (§ 90a(1) no.2 StGB).

I.

In the city-magazine "Howler", published in Nürnberg, whose responsible editor was the complainant, the following text was published at the end of 1986:

Deutschland Song '86
Lyrics: anonymous/ Music: Joseph Haydn
Deutschland, Deutschland over allos
Money laying in the street
If against the hooliganos
sticks together brutally
From Beethoven to Bergen Belsen
From Wackersdorf to refugees
Deutschland, Deutschland, hyper alles
The world's most beautiful biotope
German Turks and German Pershings
German big mac, German punk
Should retain their beautiful sound,
Good old sound throughout the world
German "cola" German "peepshow"
The German mark and German sperm bank
Should inspire us to do noble
Deeds our entire lifetimes long
Sliminess and frustration and
Unleaded gas for the tartans
Let us go and drink to these things
Up ahead and in the rear
bat free, lubricant and cancer
Germany swells with its luck
Copulate in German stables
Mother and German shepherd

Next to this text was printed an article under the headline "Tomayer's German hit-parade, today: the Deutschland Song 1986" in which satirical explanations were given of the content and the possible uses of the song.

Based on this publication, the local court confiscated this issue of the magazine. The complainant used this as an opportunity to have a press release printed, which was laid out in Nurnberg book stores. He described and commented therein on the confiscation and on the underlying facts of the case underneath a word-for-word reproduction of the song.

The local court sentenced the complainant to a term of imprisonment totalling four months for two factually coinciding offenses of disparaging the symbol of the state. The regional court rejected the complainant's appeal as unfounded. It found: in the "Deutschland Song '86", words and expressions were consciously and deliberately used which should raise the impression that the Federal Republic of Germany is a state whose essential characteristics are governmental power, sickness and primitive sexuality. The conglomeration of negative concepts is no accident; rather, it is methodical. The lyrics of the anthem reveal that the purpose of their use is to attack and drag through the mud the anthem of the Federal Republic of Germany and thereby the Federal Republic of Germany itself. Artistic freedom does not stand in the way of the complainant's punishment.

Art.103 (2) GG was allegedly violated because the Deutschland Song does not satisfy the requirements made on the proviso of legality. Already the argument whether all three verses or merely the third are to be regarded as the national anthem, is a reliable indication of the uncertainty of the legal situation. § 90a of the Criminal Code [StGB] is a blanket law because it fails to determine what the colours, the flag, the coat-of-arms, or the anthem of the Federal Republic of Germany are. In that respect, the criminal regulation necessarily refers to other legal norms. Here, like everywhere else in the criminal law, it is required that the blanket elements of an offense be filled in by law. With respect to the determination of the Deutschland Song as national anthem, these requirements are insufficient.

III.

1. The Federal Minister of Justice; who took a position in the name of the federal government, does not consider the constitutional complaint to be well founded: since a binding determination on the national anthem was made through the exchange of correspondence between Federal Chancellor Adenauer and Bundespräsident Heuss from 19 April 1952 and 3 May 1952, the art.103 (2) GG requirement of certainty is fulfilled. The wording of the correspondence reveals that the Deutschland song, consisting of 3 verses, constitutes the national anthem. The qualification that only the third verse be sung on state occasions is to be distinguished from this.

The minister asserts that the complainant's right under art.5 (3) first sentence GG was not violated either. It is even doubtful whether the "Deutschland Song '86" which he published can be regarded as art within the meaning of this basic right. But even if the artistic quality of the song is assumed, the decision under attack is compatible with the guarantee of artistic freedom. The description of the Federal Republic of Germany expressed in the take-off of the song injures the general right of personality of its citizens and their feeling as state citizens. The national anthem which, just as the federal flag, has the significance of establishing identity, becomes the object of crude mockery. The subject, the form and the outer limits of the disparagement are so serious that artistic freedom is outweighed.

2. The Bavarian State Ministry of Justice also sees no injury of the complainant's rights: no violation of art.103 (2) GG exists. It follows from the constitutional requirement of certainty for criminal legal norms, that their area of application and the extent of their consequences must be discernable based upon the concrete description of the elements of the offense and ascertainable through interpretation. The use of a term is constitutionally unobjectionable if, with the help of the usual method of interpretation, the prohibition of particular conduct is discernable and the reaction of the state is foreseeable. Starting out from these principles, regarding the Deutschland Song , in all its verses, as the anthem of the Federal Republic of Germany is in keeping with normative certainty.

According to the ministry, art.5 (3) first sentence GG is not infringed either. The regional court correctly took it into account that the endangerment of the continued existence of the Federal Republic of Germany and its free democratic constitutional structure can outweigh artistic freedom in the individual case. Its conclusion that the dissemination of the take-off can undermine the civic consciousness of the citizens meets with no objections.

B.

The constitutional complaint is justified.

The challenged decision violates the complainant's basic right under art.5 (3) first sentence GG (I.). On the other hand, the objection based on art.103 (2) GG is only active in as far as it concerns the punishment for disparaging the first two verses of the Deutschland Song (II.).

I.

Since the complainant alleges his punishment is incompatible with artistic freedom, the Bundesverfassungsgericht must not only examine whether the challenged decision was based on a fundamentally false view of the significance and the extent of consequences of the basic right claimed. Rather, it must also examine the interpretation of the non-constitutional law in its particulars for its compatibility with artistic freedom (see BVerfGE 75, 369 [376]; 77, 240 [250f.]; today's decision - 1 BvR 266/86 and 1 BvR 913/87).

It must be cleared up, therefore, whether the incriminated actions of the complainant fall in the area of art.5 (3), first sentence, GG protection, whether the challenged decision correctly recognized this protected area, and whether each individual limit placed on artistic freedom was correctly assessed.

2. Both actions which brought about the complainant's punishment are to be classified within the area of art.5 (3), first sentence, GG protection.

a) The free rendering of the Deutschland Song is art within the meaning of this basic right. This follows both from an exclusively formal approach, because the general requirements of the genre "poetry" are fulfilled, and from a more content-related definition of the term of art. The author uses the forms of poetry in order to communicate his experiences and impressions of certain events in life which one could summarize under the title "Everyday German Life." Since a qualitative restriction of the term of art is not reconcilable with the comprehensive guarantee of liberty in art.5 (3) first sentence GG, the "level" of the poetry does not matter in the process of constitutional classification and evaluation.

b) Through artistic freedom, the dissemination of the song, thus the art-work's area of influence, is also protected. However, it is not settled thereby that the dissemination of the leaflet also falls within the protected area of the basic right. The newspaper publication is not problematic because that involves the further transmission of the song itself. Regarding the press release, that is not so clear. The work of art is here embedded in another expression of reality, namely in the not-defamiliarized proclamation of an opinion on the measures of criminal prosecution against the song's dissemination. The distribution of the leaflet therefore falls basically within the sphere of art.5 (1) GG protection. This is also not changed by the fact that the song is quoted; because this occurs - at least directly - not for the sake of the work of art, but only in order to explain the criticized chain of events. The art is merely a "detail" of the opinion expressed; it does not serve to convey its content.

This governmental intervention is nevertheless to be evaluated according to the requirements of the guarantee of artistic freedom as well. The complainant's punishment is not based on the leaflet and the opinion communicated there on the whole; on the contrary, it is directed exclusively against the reprinting of the "Deutschland Song '86." Viewed from the challenged subject-matter, the area of art.5 (3) first sentence GG protection is still concerned. This is true with regard to the personnel validity of this basic right as well. In fact, one could doubt the intermediary function of the claimant with respect to the work of art; because - viewed facially - it did not deal with the necessary mediation handled in the Mephisto decision (cf. BverfGE 30, 173 [1889]); the work of art as such should not be disseminated with the leaflet. The question whether acts of indirect dissemination are to be understood as observations of artistic freedom, does not need to be fundamentally decided though; because, at any rate, the particular circumstances of the case compel the provision of the protection under this basic right to the complainant. It must be observed that he meant for his leaflet to secure the freedom of conveying the work of art. If he uses the work of art itself in this context in pursuit of this goal, this action also serves to make it accessible to the public. If the government measures in such cases focus deliberately and exclusively against the work of art disseminated in this way, the person responsible becomes active as his agent; the freedom of expression of opinion is in this respect outweighed by art.5 (3) first sentence GG.

The challenged decision is therefore not objectionable from its constitutional starting point. The explanations of the regional court are decisive for its judgement, because the Bavarian Higher Court rejected the appeal without further explanation.

3. However, the regional court incorrectly determined the area of art.5 (3) first sentence GG protection. Its evaluation of the song does not consider the art's own distinguishing structural characteristics (BVerGE 30, 173 [188]); it does not interpret the take-off on its own terms (see BVerfGE 75, 369 [376]).

The "Deutschland Song '86" is visibly a matter of satire. Nevertheless, the regional court did not even attempt to ascertain the core-statement of the song and to separate this from the chosen surface form (see RGSt 62, 183 [184]; BVerfGE 75, 369 [377]). It picks out the "collected urium" of negative and insulting terms without differentiation and uses them with respect to the text of the song in order to prove that the anthem is meant to be made a laughing stock. This method of interpretation is not fair to the satiric content of the work; it violates the guarantee of artistic freedom.

It is the artist's visible intent to point out contradictions between claims and reality with regard to the conditions of life in the Federal Republic. This core-statement takes the form of a take-off of the Deutschland Song in which use of the verse's meter, phonetic approximation and defamiliarization of the original text turn that text's idealizations into exaggerated negative descriptions of our reality; they are reversed to become their exact opposite. The regional court completely neglects this conceivable core-statement of the satire - the denunciation of contradictions between claim and reality. It therefore inevitably reaches the conclusion that the song was meant to disparage the anthem of the Federal Republic of Germany and this state itself, without considering whether - on the contrary - the ideals represented within the anthem and constitutional order should actually be made more effective through the drastic portrayal of reality. The regional court would have had to at least considered the possibility of such an interpretation instead of simply deciding in favor of an interpretation relevant to criminal law (see BVerfGE 67, 213 [230]).

4. Based upon its incorrect interpretation, the regional court also comes to draw boundaries between artistic freedom and competing constitutional values, which do not adequately take into account the requirements of art.5 (3) first sentence GG.

It is true, criminal liability under § 90a (1) no.2 of the Criminal Code [StGB] for disparaging the anthem is basically compatible with artistic freedom (a); however, the imposition of the punishment is founded on the contextually inappropriate understanding of the take-off without regard to artistic freedom, because the other bases of the decision also fail to sustain the judgement, and the form of the satire, as such, must not inevitably lead to the application of the criminal norm (b).

a) The national anthem, like the federal flag, is protected under § 90a (1) no.2 of the Criminal Code [StGB], as a symbol of the Federal Republic of Germany. This protection of the anthem, like that of the flag, is based on the constitution (see today's decision - 1 BvR 266/86 and 1 BvR 913/87 at B II 2 b). However, since only the third verse of the Deutschland Song is sung on state occasions (see B II), the protection of the symbol of state can, at most, refer only to this verse.

b) The regional court's attempt to find a fair balance among the opposing principles which are equally protected under constitutional law, through a case-specific evaluation, must inevitably fail - even disregarding the restricted, constitutionally based protection of the Deutschland Song - due to its not having interpreted the take-off properly. So long as this does not occur, it is not even clear whether it is necessary to harmonize contending constitutional principles at all; because - as explained under 3 - a contextually appropriate understanding of the take-off could already lead to a negative finding with regard to disparagement. It is beyond contention that even an interpretation, justifiable with regard to core-statement and form, must have lead inevitably to the acceptance of a disparagement, because the form of the satire in itself is regarded as a "formal" disparagement. Such an assumption is ruled out already because the court's explanation does not reveal whether it sees a disparagement in the exaggerated formulation of the song, independent of its core-statement.

Since the Bavarian Higher Court could find no error of law in the judgement of the regional court, its decision likewise fails to satisfy the requirements placed by art.5 (3) first sentence GG on punishment under § 90a (1) no.2 of the Criminal Code [StGB].

II.

The complaint of an art.103 (2) GG violation is, in contrast, only justified in part.

The principle of certainty laid down in this provision obliges the law-maker to describe the criminal liability so concretely that the consequences and area of application of the elements of the offence are recognizable and determinable through interpretation (see BVerfGE 75, 329 [340f.]). Everyone should be able to foresee which behavior is threatened with punishment; beyond that, it should be insured that the law-maker herself decides about the general criminal liability in the abstract (see Id., p.341).

Regarding the question of which song is the "Anthem of the Federal Republic of Germany," these requirements are fulfilled only insofar as the third verse of the Deutschland Song is concerned. The correspondence between Federal Chancellor Adenauer and Bundesprasident Heuss in 1952 (Bulletin der Bundesregierung no. 51 in Hellenthal, NJW 1988, p. 1294 [1297]) is not clear. It is not expressly stated that only the third verse of this song is meant to be declared the anthem. It is, in any case, established therein that the third verse should be sung at state occasions. In the meantime, ten years of general practice have complied with this. Therefore, for those to whom § 90a (1) no.2 of the Criminal Code [StGB] is addressed, the visible meaning of the term "Anthem of the Federal Republic of Germany" does not extend beyond the third verse of the Deutschland Song. Punishment for disparaging the first two verses consequently violates the principle of certainty under art.103 (2) GG.

Judges: Herzog, Henschel, Seidl, Grimm, Söllner, Dieterich, Kühling, Seibert.

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