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Case:
OVG Münster DÖV 1985/285 B 1361/84
Date:
31 August 1984
Judges:
Professor Basil Markesinis
Copyright:
Raymond Youngs

The applicants are enterprises founded and directed by members of the B religious movement with the object of running discotheques. An interview with the Minister for Work, Health and Social Affairs for the State of North Rhine Westphalia appeared in a newspaper. The administrative court ordered the respondent by an interim injunction not to repeat the following statements by the Minister: "The Bs are exploiting their discos for trapping people in the most evil way. They get new recruits for themselves from the disco visitors, make them dependent and put pressure on them. I shall put a stop to their activities".

The complaint was partly successful.

Reasons:
The senate derives the claim to an injunction in respect of disparaging statements by a holder of sovereign authority directly from the basic rights, in particular Arts 2 and 14 of the Basic Law… Unlike the position with the more extensive claim to revocation, it is not possible to resort to § 1004 of the BGB. The basic rights give a direct defensive claim against the state. At any rate it includes a claim that unlawful derogatory statements are not repeated, so that no gaps exist which can be closed by analogy.

The conditions under which a claim to an injunction exists depend on whether it is a question of assertions of facts or value judgements (references omitted). Unlike an assertion of facts, a value judgement is recognisable from the start by its subjective colour. It makes no claim, so to speak, to general validity, but appears to a member of the public as one of many possible opinions which he can share or reject (references omitted). Because of this subjective element, it is beyond being either confirmed as true or refuted as untrue. These considerations are transferable to the claim to an injunction in public law (reference omitted).

...

If the statements of the Minister are opinions, an examination of their truth content is conceptually out of the question. That does not mean that statements of this kind must always be accepted by the person affected. If the state gives detrimental opinions about a citizen through its functionaries, this needs legitimation. In this connection the respondent cannot successfully rely on Art 5 of the Basic Law nor on the rights [of the Minister] in his capacity as a member of the State Parliament. The basic right in Art 5 para 1 sentence 1 of the Basic Law does not belong to the state and its functionaries (references omitted). As freedom rights, the basic rights are directed against the state. They are not applicable against the persons to whom they are addressed (Art 19 para 3 of the Basic Law), and their nature would be distorted if they could cover interferences by the state in the sphere of the citizen's rights. That does not exclude the possibility of the office holder himself being able to rely on freedom rights. But this can only occur when his actions are unconnected with his official capacity, which is not the case here. The statements are also not covered by the indemnity (Art 37 of the Constitution of North Rhine Westphalia) because they are not related to parliamentary work, but to the activity of the Ministry (reference omitted).

There is however a right for the government and its members to speak publicly on current issues which is independent of the provisions previously mentioned and which arises here from Art 55 para 2 of the Constitution of North Rhine Westphalia (references omitted). But the organs of the state are subject to special limits in the exercise of this right of expression. The state power is conferred for the protection of the dignity and freedom of the citizen. Disparaging opinions directed at the citizen must therefore observe the prohibition on excess applying to all state action and cannot be arbitrary, particularly aggressive and without objectivity (references omitted). That does not exclude the possibility of the authorities using clear words (reference omitted).

The boundary is reached however in disparagement which is arbitrary and unnecessary, even from the standpoint of the person making the statement. In so far as the civil courts apply more generous standards following the judgment of the Bundesgerichtshof of the 21. 6. 1966 (loc cit), its deliberations are not transferable. Unlike the state, the citizen can in fact rely on Art 5 para 1 sentence 1 of the Basic Law, which gives a guarantee not limited by considerations related to the principle of proportionality, to justify his expression of opinion.

 

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