HEADNOTE:

Satiric portrayals may not be excluded from the protection of art. 5(3), sentence 1, Basic Law for the simple reason that their subject-matter is the symbol of a former national socialist organisation (§ 86(1), no. 4 StGB).

Order of the First Panel of 3 April 1990 – 1 BvR 680, 681/86 –
_in the proceedings on the constitutional complaint against
a) the order of the Bavarian State Supreme Court (Oberstes Landesgericht) of 2 May 1986 - RReg. 5 St 94/86 -,
b) the judgment of the Augsburg Regional Court (Landgericht) of 22 November 1985 - 4 Ns 30 Js 1522/84 -.

DECISION:

The order of the Bavarian State Supreme Court of 2 May 1986 - RReg. 5 St. 94/86 - and the judgment of the Augsburg Regional Court of 22 November 1985 - 4 Ns 30 Js 1522/84 violate the Complainants' basic rights under art. 5(3), sentence 1, Basic Law. These decisions are quashed. The case is referred back to the Regional Court.

The Free State of Bavaria is to reimburse the Complainants the necessary expenses.

EXTRACT FROM GROUNDS:

The constitutional complaints are directed against sentencing under § 86 a StGB for use of a NSDAP symbol.

I.

1. The Complainants run a small business in which T-shirts are printed and subsequently sold to ultimate buyers. As from October 1984 they acquired printing patterns for the two pictures, which were intended to be printed on the T-shirts and which were the subject of their later convictions.

The first picture shows the upper half of Adolf Hitler's body in a uniform jacket with a swastika armband (in place of the swastika only two crossed bars are shown), and his body appears sideways in front of a map outline of Europe. Red arrows point to campaigns during the Second World War. Written in red Gothic lettering above the form of Adolf Hitler is his name, to the left and right of him are the dates 1939 and 1945, under his picture also written in Gothic lettering is "European Tour", and beneath that in smaller lettering:

Cancelled
"September 1939 Poland September 1940 England
April 1940 Norway April 1941 Jugoslavia
May 1940 Luxembourg May 1941 Greece
May 1940 Holland June 1941 Crete
Cancelled
May 1940 Belgium August 1942 Russia
June 1940 France July 1945 Berlin Bunker".

Underneath the list is written in even smaller lettering:

"_c Third Reich Promotions 1939 +".

The second picture shows a black and white photograph of Hitler in uniform with the left side of his body turned towards the viewer. On his left arm he is wearing an armband with a swastika and here too the swastika is replaced by two crossed bars. Attached to the fingers of his right hand, which is raised in the "German salute", is a tightly-knotted string with a yo-yo hanging from it whose rotating movements are represented by lines. On the left next to the string is Adolf Hitler's name written in Gothic lettering and underneath the yo-yo four lines appear by way of explanation

"European
Yo-Yo
Champion
1939-1945"

The Complainants sold a total of 156 shirts with these prints - 153 with the first picture and 3 with the second picture.

The District Court found them guilty of jointly continuing to use the symbol of an unconstitutional organisation and sentenced each of them to pay a fine. Their appeal was unsuccessful. In essence the Regional Court argued as follows: The Complainants were not allowed to regard the pictures as satiric portrayals. The relevant yardstick had to be the view of the reasonable average German citizen who was familiar with past events. Such a person - to the extent that it was at all possible for him to read the inscription - could only ascertain from the picture a chronological list of the campaigns and Hitler's end as well as the failure of the campaigns against England and Russia. Try as he might, there is no way he could understand the list to be intended to be derisory. Even the last line of the text " Third Reich Promotions 1939 +" was not sufficient to invalidate the dominant impression of Hitler and to turn the whole portrayal into a satire. Nor did the second picture show a caricature because Hitler was presented in a lifelike photographic form and ridicule or derision were not recognizable. The only point of the yo-yo game was to slightly weaken the effect of Hitler's picture. The description "Champion" could by all means be understood as admiring. Even after giving it some thought, a reasonable observer could not imagine that the picture was meant to ridicule or be disparaging. It was just as hard for the Court to share the Complainants' view that the wearer of such a shirt was confronting the recent past. Moreover in the case of such a large representation of Hitler on a T-shirt, it would seem likely that the wearer was either a supporter of national socialist ideas or that he wanted to shock people. The provisions of § 86(3) StGB did not benefit the Complainants because the portrayals did not serve the purposes named therein.

The appeals of the Complainants were unanimously dismissed by the Bavarian State Supreme Court as clearly unjustified.

2. The Complainants assert a violation of their basic rights under art. 5(1), sentence 1 and art. 5(3), sentence 1, Basic Law. They claim: The Federal High Court deliberately judges the question whether the effect of a picture is to glorify or reject national socialism from the point of view of a potential advocate of such ideas. At the same time it therewith finds a suitable definition for satiric and paradoxical forms of portrayal, which fall within the protective scope of the guarantee of artistic freedom. The Regional Court expressly avoided this approach. It used the view of a reasonable average citizen as a yardstick to judge the significance of the pictures but, by focusing on a passer-by, then looked at the pictures from the point of view of a hurried observer, who only briefly catches a glimpse of the pictures and who does not give them any thought. The judgment of both pictures by the Regional Court fails on the one hand to consider the objects of legal protection under § 86 a StGB and on the other hand those under art. 5 (1) and (3), Basic Law. This is because - in contrast to the Frankfurt District Court and the Frankfurt Regional Court as well as the Bad Kissingen District Court which also had to decide on the criminal content of the pictures - the Regional Court does not recognize the subtlety and ridicule contained in the pictures.

3. The Bavarian State Ministry of Justice considered the constitutional complaints to be unjustified: The purpose of § 86 a StGB is to ban the symbols of unconstitutional organisations from the German public image so as to avoid the impression that such activities are tolerated here. The mass distribution of such symbols runs counter to this protective purpose. The clear result in these cases of weighing up the necessary protection of a free democratic State against artistic freedom is that the protection of the State must prevail. Thus the use of the symbol is neither covered by the "social adequateness" clause under § 86 a (3) in connection with § 86 (3) StGB nor directly by art. 5(3), sentence 1, Basic Law.

II.

The constitutional complaints are justified. The attacked decisions violate the basic rights of the Complainants under art. 5(3), sentence 1, Basic Law.

1. In the case of criminal sanctions for the creative and presentation aspects of the artistic freedom right, the Federal Constitutional Court also examines in detail the construction of ordinary laws to check their reconcilability with the basic right (BVerfGE 75, 369 (376)). It is not satisfied with the otherwise usual examination (BVerfGE 18, 85 (93)) of whether the attacked decisions rest on an interpretation of the significance and reach of the basic right relied on, which is basically incorrect. In the cases at hand, however, a check restricted to fundamentals already shows that the convictions of the Complainants cannot stand up against the guarantee of artistic freedom.

2. The Regional Court failed to appreciate the artistic content of the pictures. It examined whether the pictures are art within the meaning of art. 5(3), sentence 1, Basic Law from the point of view of their satiric character and answered this question in the negative using reasons which are irreconcilable with such basic right. From several possible interpretations the Regional Court decided on one interpretation of the pictures - which is not even likely - which from the start removes them from the area of application of art. 5(3), sentence 1, Basic Law and which is of relevance alone from the criminal law point of view (cf. BVerfGE 67, 213 (230)).

The assumption that an "informed observer" could not see any derision or ridicule of Hitler in the pictures and that in the first picture a "reasonable average citizen" could only recognize a chronological list of the campaigns, the failure of the attacks against England and Russia as well as Hitler's end, does not do justice to the content of the portrayals. The same applies to the second picture in respect of which the Regional Court believed that the only purpose of the yo-yo game was to weaken the effect of the Hitler portrayal. Even after giving it some thought a "reasonable observer" could not imagine that the picture was meant to ridicule or be disparaging. Contrary to the Regional Court's opinion both pictures are open to the interpretation that Hitler and his megalomania are intended to be ridiculed by using satire. The fact that such an interpretation is possible and even likely is moreover borne out by the decisions of the Frankfurt District Court and the Frankfurt Regional Court, which the Complainants have referred to in the criminal proceedings, and which unanimously accepted that the portrayals were intended to ridicule. (Beschluß AG Frankfurt am Main, 27 November 1984-50 Js 25757/84-931 Gs-; Beschluß LG Frankfurt am Main, 23 January 1985 - 5/11 Qs 1/85).

Of course, the likelihood that Adolf Hitler was chosen as the subject of the portrayals primarily in order to attract attention and increase the sales cannot be dismissed. This does not, however, exclude the possibility of viewing the pictures as "art" within the meaning of art. 5(3), sentence 1, Basic Law. The protective scope of this basic right norm would only then not be relevant from the start, if satire obviously did not come into consideration. Such an assumption is not justified by the reasoning that at a first fleeting glance, the Hitler portrayals seem loud or shocking. The Regional Court thereby misjudged the significance and reach of the guarantee of artistic freedom to the Complainants' detriment; they share in the protection of the basic right in the presentation area because they were necessarily the providers of the pictures (cf. BVerfGE 30, 173 (191)).

As the Bavarian State Supreme Court dismissed the appeal without giving reasons, its decision suffers from the same deficiency as the judgment of the Regional Court.

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

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