Decision
In the criminal case
against
xxx,
– Defense counsel: Attorney Adam, Göttingen
because of insult
The Higher Regional Court of Frankfurt am Main – 2nd Criminal Senate – has ruled on the defendant's appeal against the judgment of the Kassel District Court of July 12, 2011
On March 20, 2012, the following was unanimously decided pursuant to Section 349 Paragraph 4 of the Code of Criminal Procedure:
The contested judgment is overturned.
The defendant is acquitted. The costs of the proceedings and the necessary expenses incurred by the defendant shall be borne by the state treasury.
Reasons:
I.
The Kassel District Court found the defendant guilty of insult in its judgment of July 12, 2011, issued a warning, and reserved the right to impose a fine of 15 daily rates of €10 each. According to the findings of the judgment, on December 3, 2010, the defendant was approached by officers of the Federal Police on a regional express train traveling between Kassel and Frankfurt am Main and asked to identify himself. This was due to increased vigilance being directed at people of color in response to threats of attacks from Islamist circles. The defendant reacted aggressively and refused to identify himself. After the officers followed him to his seat and one of them reached for his backpack, the defendant stated that it reminded him of something. When asked by the officer what it reminded him of, the defendant stated that it reminded him of SS methods, that it reminded him of the SS. When asked by the officer whether the defendant intended to insult him, he denied it. The official then challenged him with the words: "Then tell me I'm a Nazi," to which the defendant replied: "No, I won't say that."
The defendant appeals this judgment by way of a direct appeal, alleging violations of formal and substantive law.
II.
The appeal on points of law is admissible, in particular having been filed and substantiated in due form and time, §§ 335, 312, 341, 344, 345 of the Code of Criminal Procedure. The admissibility of the direct appeal on points of law is not precluded by the fact that the appeal in this case would have required acceptance by the Regional Court pursuant to § 313 para. 1 of the Code of Criminal Procedure (Senate, 2 Ss 290/02; Bavarian Higher Regional Court, StV 1993, 572; Karlsruhe Higher Regional Court, StV 1994, 292; Kuckein in KK, Code of Criminal Procedure, 6th edition, § 335 marginal note 16; contra: Meyer-Goßner, 54th edition, § 335 marginal note 21).
The appeal is successful on the grounds of substantive objection. The contested judgment does not withstand legal scrutiny with regard to the finding of guilt.
As the Attorney General's Office explained in its detailed statement of March 14, 2012, the Local Court correctly classified the events, which were established without legal error, as an insult within the meaning of Section 185 of the German Criminal Code. The assessment of whether a statement constitutes an attack on the honor of the person concerned is not to be made solely according to the wording, but rather according to the meaning of the statement, whereby an objective evaluation from the perspective of an unbiased and reasonable public must take place (Federal Constitutional Court, NJW 2009, 3016 – Headnote 3b). According to this standard, the defendant's statement that "this reminds him of SS methods" could only be understood as comparing their actions with the methods of the Nazi state and thus also placing the acting police officers themselves in close proximity to SS members (cf. Federal Constitutional Court, NJW 1992, 2815 – "Gestapo methods").
However, according to the established facts, the defendant benefits from the justification provided by Section 193 of the German Criminal Code (StGB). The necessary balancing of interests between the protection of honor on the one hand and the fundamental right to freedom of expression under Article 5 Paragraph 1 of the Basic Law (GG) leads to the conclusion that freedom of expression prevails in this case. According to the principles established by the Federal Constitutional Court, in cases where an expression constitutes the dissemination of an opinion protected by Article 5 Paragraph 1 of the Basic Law, freedom of expression generally takes precedence over the protection of personality rights, even when strong, emphatic, and meaningful slogans are used or sharp, polemical, and exaggerated statements are made, even if the criticism could have been expressed differently (BVerfGE 54, 129, 138; BVerfG, NJW 1992, 2815; Senate, 2 Ss 282/05). In assessing the severity of defamation and its weight within the required overall balancing of interests, it is crucial whether the responsible officials are personally attacked or whether the sharp criticism was directed at the measure taken and the defamation only arose indirectly from the fact that the criticism of the measure also contained an unspoken reproach against those responsible (Federal Constitutional Court, NJW 1992, 2815). Such an indirect impairment of honor is generally less likely to carry weight in public discourse when the substantive debate is paramount (Federal Constitutional Court, ibid.). Finally, it is incompatible with the fundamental importance of freedom of expression as a prerequisite for a free and open political process if the admissibility of a critical statement is essentially judged by whether the criticized measure of public authority was lawful or unlawful, since otherwise the right guaranteed by Article 5 Paragraph 1 of the Basic Law to subject applicable laws to criticism would no longer be guaranteed (Federal Constitutional Court, ibid.).
By these standards, the judgment of the Kassel District Court cannot stand. In particular, it is not decisive whether the identity check was lawful or unlawful under the provisions of the Federal Police Act (BPoIG). Rather, the decisive factor is that the criticism was primarily directed at the measures taken, especially the targeted selection of the defendant, who has dark skin, and the demand for identification. The defendant, who at least subjectively perceived the official action as discrimination based on his skin color and therefore as unjust, and who, according to the findings, expressed this to the officers and fellow passengers and appealed for solidarity, was therefore entitled, under the protection of freedom of expression, to subject the police action to critical evaluation using highly polemical language.
The limits of permissible freedom of expression can be reached, except in cases of formal insult, when the statement, in its objective sense and considering the specific circumstances, can no longer be understood as a contribution to the substantive debate, but rather aims at defamation or personal denigration of the persons concerned, thus constituting a form of abusive criticism (BVerfGE 93, 266; BVerfG, NJW 2009, 3016). However, such a case is not present here. This is evident, firstly, from the defendant's clear distancing from any personal denigration when asked by the official whether he intended to insult him or call him a Nazi. The defendant demonstrated his ability to clearly distinguish between objective criticism of the official's actions and personal defamation. It is not apparent that the criticism of the person, indirectly resulting from the criticism of the matter, would overshadow the objective concern.
The contested judgment was therefore to be set aside. A remand of the case for further trial is not necessary. Rather, the Senate can decide the case itself by acquittal pursuant to Section 354 Paragraph 1 of the Code of Criminal Procedure. The Senate rules out the possibility that, in the event of a remand, new supplementary findings could be made that would lead to a conviction of the defendant.
The decision regarding costs and expenses is based on Section 467 Paragraph 1 of the Code of Criminal Procedure.
