Case Summary and Outcome

The Bundesverfassungsgericht (Federal Constitutional Court of Germany) found that having ‘ACAB’ (an acronym for “all cops are bastards”) printed on his pants was a protected form of the Complainant’s right to freedom of expression under Art. 5 Grundgesetz (the German Constitution or GG).  The First Instance Court in Munich convicted the Complainant of libel under the German criminal code on the basis that the slogan on his pants amounted to a personalized insult against certain policemen. The Constitutional Court reasoned that the expression referred to the police as a collective and the Complainant’s mere presence in the stadium with the knowledge that the police would be there and notice the printing on his pants did not amount to an intention to insult certain policemen. Therefore, the expression could not be restricted and penalized as a an insult under §185 Strafgesetzbuch (German Criminal Code).

Facts

The Complainant, Mr. B, went to a soccer game in October 2012 wearing black pants with the abbreviation ACAB printed in large letters on the back of them. On leaving the stadium in a group of other fans, the Complainant passed several riot policemen, who noticed the initials printed on his pants. One of the policemen pressed charges against him.

The Amtsgericht Munich (First Instance Court in Munich) convicted Mr. B of assault under §185 Strafgesetzbuch (StGB, German Criminal Code), stating that the abbreviation ACAB, which is short for ‘all cops are bastards’, undoubtedly constituted libel. The Landgericht Munich (First Instance Appeal) rejected the Claimant’s appeal that he was protected by his right to freedom of speech under Art. 5 Grundgesetz (GG, German Constitution). It reasoned that the Complainant’s intention was to insult the policemen working in the stadium that day and that this outweighed his right to freedom of speech.  The Complainant’s second appeal in front of the Oberlandesgericht Munich was also rejected.

The Complainant subsequently appealed to the Bundesverfassungsgericht (BVerfG, Federal Constitutional Court) claiming that his right under Art. 5 of the German Constitution had been infringed.

Decision Overview

The BVerfG delivered a per curiam decision ruling that the Complainant’s right to freedom of expression under Art. 5 GG had been infringed by the lower courts’ criminal conviction under §185 StGB.

The Court found that the abbreviation on the Complainant’s pants was an expression of opinion, showing his general disapproval of the police, and thus, fell within the scope of Art. 5 GG. However, the right to freedom of expression is subject to restrictions some of which can be found in parts of the criminal code, including an insult under §185 StGB.  However, if the expressed criticism refers to a collective it usually does not concern individual misbehavior and the individual is less affected it.

The Court disagreed with the lower courts’ finding that the Complainant’s expression did not refer to the police as a collective, but in particular to the specific policemen in the stadium. It said that the lower courts’ finding and conviction was unconstitutional and that a personalized expression would have been required, for example, that the Complainant had purposefully stood in front of the police to confront them with his opinion, which was not supported by the facts.

The Court concluded that the Complainant’s mere presence in the stadium and his awareness that the police would be there did not evince an expression toward certain policemen. Indeed, the Court found that the acronym specifically referred to the police as a collective, and was therefore protected under the right to freedom of expression under Art. 5 GG.