VERDICT
In the name of the people
In the criminal case
against
1. xxx,
Defense counsel:
Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen
2. xxx,
Defense counsel:
Attorney Rasmus Kahlen, Lange Geimsarstraße 55, 37073 Göttingen
Defense counsel:
Attorney Dr. Jannik Rienhoff, Stein, Schmeltzer, Dr. Rienhoff law firm, Schwanallee 18-20, 35037 Marburg
3. xxx,
Defense counsel:
Attorney Nils Spörkel, Lange Geismarstr. 55, 37073 Göttingen
because of defamation
The Fulda District Court — Criminal Judge — ruled in the public session of August 22, 2022,
which was attended by:
Judge at the District Court xxx
as a criminal judge
Public Prosecutor xxx
as an official of the Public Prosecutor's Office
Lawyer Sven Adam
as defense counsel for defendant no. 1)
Attorney Dr. Rienhoff
as defense counsel for defendant no. 2) by sub-authorization
Legal trainee xxx acting under sub-authorization
Attorney Nils Spörkel
as defense counsel for defendant no. 3)
Legal clerk xxx
as certifying officer of the registry
recognized as rightful:
The defendants are acquitted.
The costs of the proceedings and the necessary expenses of the defendant shall be borne by the state treasury.
REASONS
I.
Defendant xxx was born in 1989, is single, and lives in Frankfurt am Main. Defendant xxx was born in 1991, is single, and lives in Hamburg. Defendant xxx was born in 1978, is divorced, and lives in Fulda. The defendants did not provide any further information regarding their personal and financial circumstances beyond their personal details during the main hearing.
The defendants have no prior criminal record. Information from the Federal Office of Justice dated July 29, 2020, shows no entries.
II.
1.
In the indictment issued by the Fulda Public Prosecutor's Office on August 6, 2019 (BL 39 Vol. II dA), the defendants xxx and xxx are accused of having, on April 29, 2019, in Frankfurt am Main, Fulda and other locations, jointly and knowingly asserted and disseminated an untrue fact to others by disseminating writings that are likely to make them contemptible and to degrade them in public opinion.
They are alleged to have published an article on April 29, 2019, on the internet platform "Belltower News" about a demonstration held on April 13, 2019, entitled "Justice for Matiullah," which was also read in Fulda and contains the following passage regarding an incident in which asylum seeker Matiullah Jabarkhel died on April 13, 2018, during a police operation:
"On April 13, 2018, Matiullah J., then 19 years old, was killed by police officers with 12 shots.".
This, as the defendants knew from the preceding extensive and reputable press coverage, as well as from a large, unmissable banner measuring approximately 2.40 x 1.20 meters carried by the demonstrators, was not true. Rather, Matiullah Jabarkhel was not hit by twelve shots, but—as determined by the Fulda public prosecutor's office—by four shots, in what they claimed was an act of self-defense. The defendants deliberately falsified these facts in their report to create the impression that Jabarkhel had been executed by "police officers" from the East Hesse Police Headquarters.
By doing so, the defendants xxx and xxx would have been guilty of jointly committed defamation under §§ 186, 25 para. 2 of the German Criminal Code.
2.
In the indictment issued by the Fulda Public Prosecutor's Office on March 6, 2020 (p. 74, Vol. I of the file), the defendant xxx is accused of having, on April 30, 2019, knowing better, asserted and disseminated an untrue fact concerning others by disseminating writings which are likely to make them contemptible and to degrade them in public opinion.
The defendant, as administrator of the "Fulda Active Against Racism Network AGR," linked to an article from the internet platform "Belltower News" on its Facebook page, in the publicly accessible area, about a demonstration held on April 13, 2019, entitled "Justice for Matiullah." Among other things, the article referred to an incident in which asylum seeker Matiullah Jabarkhel died on April 13, 2018, during a police operation in Fulda, stating:
"On April 13, 2018, Matiullah J., then 19 years old, was killed by police officers with 12 shots.".
This, as the defendant was aware from the preceding extensive and reputable press coverage, as well as from a large, unmissable banner measuring approximately 2.40 x 1.20 meters carried by the demonstrators, was not true. Rather, Matiullah Jabarkhel was not hit by twelve shots, but—as determined by the Fulda public prosecutor's office—by four shots in what amounted to an act of self-defense. The defendant's intention was to make these facts, deliberately falsified by the authors xxx and xxx, accessible to the public and to create the impression that Jabarkhel had been virtually executed by "police officers" from the East Hesse Police Headquarters.
The defendant thereby committed the crime of defamation under Section 187 of the German Criminal Code.
III.
The court made the following findings:
On April 29, 2019, an article appeared on the internet platform "Belltower News - Network for Digital Civil Society" under the headline: "Police shoot refugee - Demonstrators demand clarification and are defamed".
Following the headline, a subheading in bold print reads: “Demonstrators demand a full investigation into the fatal twelve shots fired at Matiulläh J. by police officers in Fulda. Journalists and politicians are defaming the participants of the demonstration in the name of the rule of law, when in fact they are the ones endangering the principles of the rule of law.”
This is followed by the statement "From xxx and xxx, April 29, 2019". Then follows an image in the style of a silhouette of a (police) officer wearing a cap, which is titled "Police violence in Fulda", followed by the addition "A guest contribution".
The article begins with the sentence quoted in the indictment : "On April 13, 2018, 19-year-old Matiullah J. was killed by police officers with 12 shots." It then criticizes (in summary) the lack of information regarding the precise circumstances of the firing of the fatal shots and the operation itself, and notes that during the demonstration on April 14, 2019, which demanded a full investigation into the police operation, participants were repeatedly subjected to hostility, disruption, and provocation. The article then devotes approximately five pages to the police's appropriation of the rule of law for law enforcement purposes, the absence of an independent investigative body, and the necessity of democratic oversight of the executive branch. It concludes that critically examining police work is an expression of democratic discourse. Demonstrations, it argues, are one of the few avenues for publicly demanding democratic, rule-of-law-based oversight of police work.
During a search of the residential and business premises of xxx, who is being prosecuted separately in proceedings 110 Js 133717/19 (Fulda Public Prosecutor's Office), on October 17, 2019, ordered by the investigating judge of the Fulda District Court on September 13, 2019 (Case No. 27 Gs 552/19, p. 31 ff., Vol. I of the file), he voluntarily granted the police officers access to his PC and the Facebook account "Netzwerk Fulda 'Aktiv gegen Rassismus AGR'" (Fulda Network "Active Against Racism AGR"), of which he was the administrator. The post published there on April 30, 2019, which links to the Belltower News article of April 29, 2019, was posted via the Facebook account of "xxx," and a profile with this name is also listed as an administrator in the page roles assigned to the "Netzwerk Fulda 'Aktiv gegen Rassismus AGR'" page.
A criminal complaint was filed by the department director xxx in due form and time.
IV.
The findings regarding point I. are based on the statements made by the defendant during the main hearing and on the information provided by the Federal Office of Justice dated July 29, 2020.
The findings in section III are based on the evidence presented, in particular the reading of the article in dispute dated April 29, 2019, and its "inspection during the main hearing" (pp. 12 ff. of the file), as well as the inspection of the photographs attached to the report on support for the search (pp. 39, 42-49, Vol. I of the file) and the testimony of witness xxx.
The defendants themselves made no statements regarding the specific charges against them. The statement by defendant xxx essentially concerns legal policy considerations and the question of criminal liability; however, it contains no information about the matter itself.
Witness xxx stated that, following the demonstration on April 13, 2019, he conducted internet research using keywords. This led him to the article in question. The phrase "12 fatal shots" in this article prompted him to open a case file or initiate proceedings. He understood this to mean that all 12 shots had hit their targets and were all fatal. Regarding the authors listed as xxx and xxx, he entered these names into the police database and found corresponding matches. He did not investigate whether there were other individuals in Germany with the same names but no entries in the police register. He did not contact the website operators to inquire about any further personal details of the guest authors beyond their names. Witness xxx's statements are credible, and he is a reliable witness. During his testimony, he showed no tendency to incriminate himself and, in particular, made it clear when he could no longer remember details due to the passage of time.
V.
The defendants should have been acquitted for factual reasons.
1.
The defendants xxx and xxx are not guilty of defamation under § 186 of the German Criminal Code, as the elements of the offense are not met.
The act under Section 186 of the German Criminal Code (StGB) is only punishable if the alleged defamatory fact is not demonstrably true. In the present case, according to the specific indictment issued by the Fulda Public Prosecutor's Office on August 6, 2019, only the veracity of the statement "On April 13, 2018, the then 19-year-old Matiullah J. was killed by female police officers with 12 shots" needs to be verified.
The prevailing opinion considers the lack of proof of a fact to be an objective condition of criminal liability, to which the perpetrator's intent need not relate (cf. BeckOK StGB/Nalerius, 54th ed. 1.8.2022, StGB § 186 Rn. 18 with further references). Whether the statement of fact is true must be investigated by the court within the scope of its duty to clarify the facts pursuant to § 244 para. 2 of the Code of Criminal Procedure.
In this case, the court had to undertake a constitutionally compliant interpretation of the disputed statement, as required by the freedom of expression under Article 5 Paragraph 1 of the Basic Law, since the statement in question is the first sentence of an article published on an internet platform that critically examines police actions.
The court initially based its decision on the wording of the statement. The incriminating phrase "(...) killed with 12 shots" can already be interpreted in different ways.
The statement can thus be understood, on the one hand, as it was also interpreted by witness xxx, namely that 12 shots were fired, all of which hit and were fatal.
The statement can also be interpreted to mean that 12 shots were fired, all of which hit their target, but only some were fatal. Another possible interpretation is that 12 shots were fired, only some of which hit their target, but all of those hits were fatal. It is also possible to interpret it as meaning that 12 shots were fired, some of which hit their target, and of those hits, only some were fatal. Therefore, in the court's view, there are already four different possible interpretations. The core of all these interpretations, however, is that 12 shots were fired and that Matiullah J. was killed by gunfire (regardless of the number of hits). The statement of fact, "(...) killed with 12 shots," is therefore essentially true in all interpretations. The fact that it was indeed likely the case that, as the defense also assumes in its motion for evidence (page 6 therein), a total of 12 shots were fired, 4 of which were hits, 2 of which were fatal, must be disregarded within the framework of the opinion-friendly interpretation of the statement to be undertaken by the court in light of Article 5 Paragraph 1 of the Basic Law. Minor deviations and exaggerations of the factual statement are generally considered harmless (cf. BeckOK StGB/Valerius, 54th ed. 1.8.2022, StGB § 186 Rn. 21). This is the case here. While the number of (fatal) hits may be an essential and decisive aspect within the framework of the investigation against the police officer who fired the shots, for the present proceedings the exact number of (fatal) hits is not of paramount importance in the interpretation of the statement at issue here. In light of the required constitutionally compliant interpretation, this constitutes only a minor deviation from the core facts. The context of the statement must also be considered. Headlines and opening sentences of articles are often worded in such a way as to attract readers and encourage them to continue reading the article (which in this case spans several pages). They are essentially intended as "catches" for readers and are often exaggerated or sensationalized, which should be considered a permissible stylistic device within the framework of press freedom.
The context of the statement, which must be considered in its interpretation, also leads to no different conclusion. While the public prosecutor's office claims in the indictment that the statement constituted a deliberate falsification of the facts to create the public impression that Jabarkhel was virtually executed by "female police officers" from the East Hesse Police Headquarters, there is no evidence to support this claim in the remainder of the article. Instead, the article primarily focuses on a critical examination of the role of independent investigative authorities and demonstrations as a means of democratic, rule-of-law-based oversight of police work.
There is no evidence to support the public prosecutor's interpretation (as a value judgment) beyond a permissible critical examination of the number of shots fired (and not the number of hits).
However, this means that the objective condition for criminal liability, namely the inability to prove the fact, is not met. The statement in dispute, “(…) killed with 12 shots,” is essentially accurate and true due to the various possible interpretations.
2.
The defendant xxx is also not guilty of defamation under § 187 of the German Criminal Code.
The offense under Section 187 of the German Criminal Code (StGB) requires that the asserted fact be untrue. This element of the offense is not present. Therefore, reference can be made to the above explanations regarding the truth of a statement of fact. While the statement of an otherwise correct fact can be untrue if it is incomplete and its recipient would foreseeably reach a different conclusion without the omitted facts (cf. BGH NJW 2000, 656 (657), cited in BeckOK StGB/Valerius, 54th ed. 1.8.2022, StGB § 187 Rn. 2), this is not the case here. Therefore, reference is made to the interpretations listed above, the core of which is all the same and none of which is necessarily preferable. The defendant xxx has therefore not acted in a manner that fulfills the elements of the offense.
3.
Furthermore, the defendants may be able to invoke the protection of legitimate interests under Section 193 of the German Criminal Code (StGB), which is to be understood as an expression of Article 5 of the German Basic Law (GG) and requires a comprehensive balancing of interests in each individual case, as justification. However, this does not require a final decision due to the lack of fulfillment of the elements of the offense.
VI.
The decision on costs follows from § 467 of the Code of Criminal Procedure.
