The Case of Sheikh Ali Salman [Bahrain]
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The Federal Constitutional Court of Germany held that a criminal conviction for incitement was a constitutionally-permissible limitation on the accused’s right to freedom of expression. A right-wing politician had been convicted of inciting hatred under the German Criminal Code after publishing derogatory statements with explicit and implicit expressions of Nazi propaganda, terms and rhetoric linked to the Jewish population on the party’s website. He unsuccessfully appealed his conviction to the Regional and Higher Regional Courts before approaching the Federal Constitutional Court, where he argued that the convictions infringed his right to freedom of expression under article 5 of the German Basic Law. The Court referred to the history of Nazism in Germany and its disenfranchisement and systematic murder of the Jewish population, and held that the lower courts had correctly assessed the effect and meaning of the statements and that any limitation of the right to freedom of expression was constitutionally justified.
In August 2016, a German television broadcast reported that the official gazette of a municipality was produced by a publishing house whose owner also produced publications with a radical right-wing background for another publishing house. In the aftermath, the chairperson of the Jewish community urged the municipality to change the publisher of their official gazette. Subsequently, Mr. K, who was a regional chairperson of the right-wing party “DIE RECHTE” at this time, published an article on the party’s website which contained pejorative statements about Jewish persons in general and the chairperson of the Jewish community in particular. He referred to the chairperson as a “cheeky Jew-functionary” (Frecher Juden-Funktionär) and referred positively to the “men of the [Nazi-era] Waffen-SS”. He also called for a boycott of the Jewish community in question and criticized the alleged influence of Jewish communities in German politics. As a result of these statements, Mr K was charged with the offence of “incitement of masses” and the Local Court in Bielefeld (Amtsgericht Bielefeld) sentenced Mr K to six months’ imprisonment without parole.
Mr K appealed the conviction to the Regional Court in Bielefeld (Landgericht Bielefeld) which rejected the appeal on points of fact and law. With reference to the lower court’s decision, it held that by the description “cheeky Jew-functionary” Mr K had addressed the chairperson of the Jewish community as a member of the Jewish population group, and that such a pejorative public addressing with Nazi terminology has to be judged as incitement to hatred under section 130 (1) of the Criminal Code. The Court held that the expression implicitly, but unambiguously and intentionally, gives the addressed person the status a Jew had in National Socialism, namely as a person without dignity and the right to exist. It also noted that this reference to ideas and methods of National Socialism is also apparent from the overall context of the statements. The Court found that this extermination rhetoric ultimately resulted in endorsing violence against persons of Jewish belief, but was not yet a concrete instigation to violent or arbitrary measures. The Court held that Mr K’s expression was not covered by his right to freedom of expression and it was not an expression. Accordingly, the Court held that the reference and positive identification with National Socialism constituted an incitement to hatred not protected by the right to freedom of expression.
Mr K then appealed to the Higher Regional Court in Hamm (Oberlandesgericht Hamm), which rejected the appeal on points of law as obviously unfounded.
Mr K applied to the Federal Constitutional Court for a preliminary injunction and challenged his conviction on the grounds that it violated his right to freedom of expression under article. 5(1) of the German Basic Law. Article 5 states: “(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. […] (2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honour. […].”
The Federal Constitutional Court delivered a unanimous decision. The central issue for the Court’s determination was whether to Mr K’s application had merit.
The Court discussed the nature of article 5 which protects the right to freedom of expression but also permits certain limits to the right. One of the stipulations in the provision is that any limitation can only be imposed by “general laws”, which, the Court noted, has “the formal requirement that laws inhibiting the freedom of opinion must not be directed against a particular opinion (standpoint neutrality)” [p. 1]. The Court stressed that as the freedom of expression is a vital basic right, fundamental to a democracy, any law that inhibits the freedom of opinion has to fulfill the requirements of proportionality.
The Court referred to its Wunsiedel decision (1 BvR 2150/08, decision of 4 November 2009) where it had recognized the constitutionality of section 130(4) of the Criminal Code – which was introduced to make the glorification of the Nazi reign of violence and terror a punishable offense – even though is directed against a particular opinion. The Court had made an exception of the formal requirement of the “general laws” exception under article 5(2) – which requires that laws be “general” and not directed at any specific opinion – because, in light of German history, the legislature could legitimately make the glorification of the Nazi regime a punishable offense. However, the Court noted that, in any event, the present case does not pertain to a conviction that specifically focuses on a glorification of the Nazi regime, but to a general act of incitement of masses under section 130 (1) Criminal Code, which is a “general law” in terms of article 5(2).
The Court held that the application and interpretation of section 130(1) Criminal Code by the lower courts was constitutional. It made the distinction between internally-held beliefs and the consequences of the expression of those beliefs, and noted that while the state could not judge an individual’s beliefs, it could encroach upon the right to freedom of expression, when the “statements no longer merely reflect inner attitudes and beliefs, and instead turn into violations of or dangers to legally protected interests … [t]he latter is the case when statements threaten public peace, specifically the peacefulness of public debate, and thus mark the transition to aggression or a breach of the law” [p. 2]. The Court found that the lower courts had correctly considered Mr K’s statements on their own merit and had not considered his general ideological orientation.
In assessing the statements, the Court highlighted that courts have to evaluate any statements’ concrete effect in the actual context. In respect of Mr K’s statements, the Court stressed that “the particular and unique experiences of German history – especially the disenfranchisement and systematic murder of the Jewish population of Germany and Europe, which was initiated and accompanied by the targeted and systematic incitement to hatred and calls for boycotts – call for increased sensitivity in dealing with calling someone a ‘Jew’ in a derogatory manner” [p. 2]. The Court held that the lower courts had found – in a constitutionally and not objectionable manner – that Mr K’s goal was to incite hatred against the Jewish population, as he used terms of Nazi’s anti-Semitic propaganda, took up the theme of an alleged “Jewish world conspiracy”, and called to boycott the Jewish community. The statements connected to the Nazi rhetoric of extinction and specifically incited action against the Jewish population. The Court held that this jeopardized the peacefulness of political debate and therefore contravened section 130(1) of the Criminal Code.
Accordingly, the Court refused to accept Mr K’s constitutional complaint and his application for a preliminary injunction on the grounds that they were obviously unfounded. The Court accepted that Mr K’s criminal conviction was an infringement of his right to freedom of expression under article 5(1) but that the infringement was justified.
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