DECISION
2 Ss 84/19
21 Ss 129/19 GenStA Celle
248 Cs 391/18 AG Hannover
1141 Js 71527/18 StA Hannover
In the criminal case
against xxx
– Defense counsel: Attorney Sven Adam, Göttingen –
because of insult
The 2nd Criminal Senate of the Higher Regional Court of Celle, on the defendant's appeal against the judgment of the Local Court – Criminal Judge – Hanover of March 5, 2019, after hearing the Attorney General's Office, decided on July 25, 2019, by Judge xxx of the Higher Regional Court, Judge xxx of the Higher Regional Court and Judge xxx of the Regional Court:
The contested judgment is set aside, and the case is remanded to another division of the Hanover District Court for a new trial and decision, including on the costs of the appeal.
REASONS
I.
The Hanover District Court sentenced the defendant on March 5, 2019, to a fine of 15 daily rates for insult. Due to an obvious clerical error, the court corrected the daily rate from €25 to €35 by order of the public prosecutor's office on April 11, 2019.
The defendant has filed a direct appeal against the judgment, alleging violations of formal and substantive law.
The Attorney General's Office has requested that the appeal be dismissed pursuant to Section 349 Paragraph 2 of the Code of Criminal Procedure.
II.
The appeal is admissible and is successful on the merits — at least provisionally.
The defendant's substantive appeal leads to the reversal of the contested judgment.
1.
According to the findings of the district court's judgment, during a demonstration in Hanover on April 5, 2018, in which the defendant participated, police officers arrested a participant for violating the Associations Act. Following this arrest, the demonstrators confronted the police officers, which manifested itself in pushing and shoving. The demonstrators loudly protested the police action and demanded the immediate release of the arrested person. The defendant, who was in the middle of the demonstrators, initially shouted indistinct remarks toward Officer xxx, whereupon Officer xxx told the defendant to pull himself together or he would be put in a cell. The defendant then referred to Officer xxx as a "wanker" at least twice.
The local court assessed the statement as an insult within the meaning of Section 185 of the German Criminal Code (StGB) and then considered whether the actions could be justified under the aspect of legitimate interests pursuant to Section 193 of the German Criminal Code (StGB). The local court concluded that no legitimate interests had been exercised.
Although the defendant made the statement in an agitated mood during a permitted assembly, it is not apparent why he would have called the police officer a "wanker" in order to express his political opinion and exercise his right to assembly.
3.
The conviction for insult does not stand up to legal scrutiny.
The contested judgment classified the acts attributed to the defendant as insults pursuant to Section 185 of the German Criminal Code (StGB). However, the judgment does not present all the circumstances that might be necessary for the examination, deemed legally required by the local court, of whether the acts were justified under the aspect of the exercise of legitimate interests pursuant to Section 193 of the German Criminal Code (StGB), and thus proves to be incomplete in this respect.
a.
The determination of the facts, including the wording of the statements in question, is fundamentally a matter for the trial judge (BayObLGSt 2004, 46 [48] = NStZ 2005, 215; OLG Nürnberg, BeckRS 2010, 01748). When interpreting the established statements, one must start from their objective meaning (content of the declaration) as understood by an impartial, reasonable third party taking into account the specific situation and all accompanying circumstances (BVerfGE 93, 266 = NJW 1995, 3303 [3305]; BGHSt 3, 346 [347] = NJW 1953, 271; BGHSt 16, 49 [52 ff.] = NJW 1961, 1222; BGHSt 19, 235 [237]; BayObLGSt 2002, 24 [26] = NStZ-RR 2002, 210; BayObLGSt 2004, 46 [48] = NStZ 2005, 215).
A statement that can be considered mere defamation is generally not subject to a balancing of the injured party's right to privacy against the speaker's fundamental right to freedom of expression under Section 193 of the German Criminal Code (KG Berlin, Decision of August 12, 2005 (4) 1 Ss 93/04, NJW 2005, 2872, 2873 with further references). However, an expression of opinion does not become defamatory simply because of its derogatory effect on third parties. Even exaggerated or abusive criticism does not, in itself, make a statement defamatory. This applies even if it is expressed in an offensive and reprehensible manner (cf. OLG Munich, Decision of November 6, 2014 – 5 OLG 13 Ss 535/14, juris para. 14). A derogatory statement only takes on the character of defamation when its focus shifts from the substantive debate to the sole purpose of personal denigration. It must achieve its effect, beyond even polemical and exaggerated criticism, through the denigration of the individual (Federal Constitutional Court, Decision of June 26, 1990 - 1 BvR 1165/89, juris para. 41 = BVerfGE 82, 272). In particular, criticism is considered mere defamation when a factual basis is merely fabricated or used as a pretext, and the statement has a purely personally defamatory and derogatory aim (Fischer, StGB, 66th ed., § 193 para. 18). The same applies if the statement is so defamatory that it appears in every conceivable context as a mere denigration of the person concerned and must therefore always be understood as a personal defamatory insult, regardless of its specific context, as is the case in particular with the use of especially serious swear words – for example, from scatological language (so-called formal insult, cf.: Higher Regional Court of Koblenz, decision of October 7, 2009 – 2 Ss 130/09, juris para. 36; Higher Regional Court of Stuttgart, judgment of February 7, 2014 – 1 Ss 599/13, juris para. 18 with further references).
However, it is not clear from the grounds for the judgment whether the local court itself assumed that the statement constituted defamatory criticism. This could be contradicted by the fact that, after determining that the statement fulfilled the elements of an offense under Section 185 of the German Criminal Code (StGB), it conducted an examination of whether it might have been based on the exercise of legitimate interests under Section 193 of the German Criminal Code (StGB), which would not have been necessary in the case of a mere formal insult (cf. Higher Regional Court of Zweibrücken, decision of September 27, 2018 — 1 OLG 2 Ss 31/18 —, juris).
b.
Defamatory statements must be measured against the fundamental right to freedom of expression under Article 5 Paragraph 1 Sentence 1 of the Basic Law (GG) when examining the prerequisites of Section 193 of the German Criminal Code (StGB) (see Higher Regional Court of Munich, StV 2018, 163 with further references), which, however, is only guaranteed within the limits of general laws, which also include criminal laws. Therefore, a comprehensive and case-specific balancing of interests and obligations is required (see LK-StGB-Hilgendorf, 12th ed., Section 193 marginal note 6; Fischer, StGB, 65th ed., Section 193 marginal note 9, each with further references).
Whether an expression of opinion is justified by the pursuit of legitimate interests according to these standards is a purely legal question. It can only be definitively answered by the court of appeal if the trial judge has sufficiently established the relevant factual circumstances. This is lacking here.
The contested judgment only touches upon the background of the defendant's statements in question. This was not unnecessary in the present case. As the local court correctly notes, it is of particular importance that the statement was made within the context of a permitted assembly and thus in a specific public and political context. Furthermore, the statement was preceded by the arrest of a participant in the assembly, the precise factual circumstances of which were not disclosed by the local court, which merely stated that the arrest was carried out in accordance with the Associations Act. Finally, the local court itself states that the defendant's statement was made in response to a threat from Police Officer xxx that the defendant should pull himself together or expect to be put in a cell.
If the insult occurred in the course of a police officer's official duties, further minimum findings regarding the events leading up to the offense and the perpetrator's motives and objectives are regularly indispensable, such as the direction of the police action, its cause and course, as well as possible legal bases and, where applicable, the legality of the official action against which the defendant may have verbally "defended himself" (Higher Regional Court of Nuremberg, decision of October 4, 2007 — 2 St OLG Ss 160/07 [available on juris]). The right of citizens to criticize measures taken by public authorities without fear of state sanctions is a core aspect of the fundamental right to freedom of expression (Federal Constitutional Court, NJW 1992, 2815). This applies all the more when value judgments are made in the context of disputes relating to state institutions, their employees and their procedures (OLG Düsseldorf NStZ-RR 2003, 316; BayObLG NJW 2005, 1291).
c.
The identified substantive legal defect leads to the reversal of the contested judgment and the findings made.
The Senate cannot rule out the possibility that further or new findings may be made in a new trial that could justify upholding the conviction for insult. The case is therefore remanded to a different division of the Hanover Local Court for a new trial and decision, including on the costs of the appeal proceedings (§ 354 para. 2 sentence 1 of the Code of Criminal Procedure).
