Headnote

to the Order of the First Senate of 26 April 1994

1 BvR 1689/88

1. Where a statement made in confidential correspondence is covered by the protection of the private sphere (Article 2(1) in conjunction with Article 1(1) of the Basic Law), it does not lose its confidential nature simply because the correspondence is subject to monitoring by prison officers pursuant to §§ 29(3) and 31 of the Prison Act. By assuming the opposite, and, based thereon, convicting a person on insult charges, courts violate the fundamental right to freedom of expression (Article 5(1) first sentence of the Basic Law).

FEDERAL CONSTITUTIONAL COURT

- 1 BvR 1689/88 -

IN THE NAME OF THE PEOPLE

In the proceedings
on the constitutional complaint of

the Federal Constitutional Court – First Senate –

with the participation of Justices

President Herzog,

Henschel,

Seidl,

Grimm,

Söllner,

Kühling,

Seibert,

Jaeger

held on 26 April 1994:

1. The Orders of the Supreme Court of Bavaria of 29 April 1987 - RReg. 2 St 385/85 -, of 20 January 1988 - RReg. 2 St 396/87 - and of 17 November 1988 - RReg. 2 St 253/88 - and the Judgments of the Ansbach Regional Court of 26 August 1986 - 2 Ns 3 Js 9665/85 - and of 25 June 1987 - 1 Ns 3 Js 9665/86 - and the Judgment of the Nuremberg-Fürth Regional Court of 14 April 1988 - 4 Ns 283 Js 4207/88 - violate the complainant’s fundamental right under Article 5(1) of the Basic Law in conjunction with the general right of personality (Article 2(1) in conjunction with Article 1(1) of the Basic Law). The decisions are reversed. The matter is remanded to a different criminal division of the Nuremberg-Fürth Regional Court for a new hearing.

REASONS:

A.

The complainant was convicted of insulting prison officers through a statement she made in a letter to her brother, who is currently serving a prison sentence.

I.

1. The complainant’s […] brother was imprisoned at the Heilbronn Correctional Facility. He sent her a letter, telling her […] about events that had occurred at the prison and affected him so severely that, as he implies in the letter, he was considering suicide. The complainant sent him a letter in return, in which she made the following statement:

And don’t forget that almost all the people you’re dealing with are cretins (imbeciles) who are hot to get promoted or who are simply perverts. Just think of concentration camp guards and you’ll know what kind of people you are surrounded by. Keep that in mind, and hopefully you can maintain your normal life-affirming attitude and cheerful nature.

At that time, her brother was being transported from the Heilbronn Correctional Facility to the Ansbach Correctional Facility. In Ansbach, the prison administration confiscated the complainant’s letter and filed a criminal complaint against her for insult because of the remarks she had made in the letter about the prison officers at the Heilbronn Correctional Facility. The Heilbronn Correctional Facility also filed a criminal complaint after obtaining knowledge of the letter.

2. The Ansbach Local Court convicted the complainant of insult and sentenced her to pay a fine.

[…]

[Following various appeal proceedings with different outcomes,] the Supreme Court of Bavaria rejected the complainant’s final appeal on points of law (Revision ) as manifestly unfounded.

II.

The constitutional complaint is directed against the final appellate decision and the previous decisions of the Regional Courts and the Supreme Court of Bavaria. The complainant claims violations of Art. 2(1), Art. 3(1) , Art. 5(1), Art. 6(1), Art. 10(1) and Art. 14(1) of the Basic Law.

[…]

III.

[…]

B.

The constitutional complaint is well-founded.

I.

The challenged decisions violate the complainant’s fundamental right to freedom of expression (Art. 5(1) first sentence of the Basic Law) in conjunction with the general right of personality (Art. 2(1) in conjunction with Art. 1(1) of the Basic Law).

1. The complainant was punished for a statement she made. The constitutional standards applicable to the legal assessment of such statements, and the permissibility of restrictions, derive from the fundamental right to freedom of expression. However, as this case concerns a statement made within the private sphere protected by Art. 2(1) in conjunction with Art. 1(1) of the Basic Law, this fundamental right [the free development of one’s personality] also comes into play.

2. As a value judgment, the complainant’s statement is protected under freedom of expression, irrespective of whether the statement is considered reasonable or unfounded (cf. BVerfGE 61, 1 <7>; 85, 1 <15>; established case-law). However, freedom of expression is subject to the limitations set out in law for the protection of personal honour. One of these limitations is laid down in § 185 of the Criminal Code, on which the conviction of the complainant is based. When interpreting and applying this provision, however, the significance and scope of Art. 5(1) first sentence of the Basic Law must be taken into account (cf. BVerfGE 7, 198 <208>; established case-law). The application of ordinary law requires a case-by-case balancing of the restricted fundamental right against the legal interest which the law restricting that fundamental right serves to protect. In that respect – at least where serious and baseless insults in the private domain are concerned – the protection of honour generally takes precedence over freedom of expression (cf. BVerfGE 54, 129 <137>).

3. However, this rule for balancing interests is not absolute. It is subject to the implicit condition that the offensive statement be directed at the affected individual or at third parties, and would unfold its disparaging effect in those relationships. This is not the case where the statement is made within a sphere that is specifically shielded so as to prevent the affected person or third parties from obtaining knowledge thereof.

The general right of personality gives rise to such a protected sphere. Art. 2(1) of the Basic Law guarantees the free development of one’s personality. The development of one’s personality requires that individuals have a domain in which they are left alone and remain unobserved, and in which they can interact with persons they trust without having to consider social expectations regarding their conduct and without having to fear state sanctions. Given the significance attached to the possibility of refuge for the development of one’s personality, it follows that the protection afforded by Art. 2(1) in conjunction with Art. 1(1) of the Basic Law encompasses the protection of one’s private sphere (cf. BVerfGE 27, 1 <6>; established case-law).

The protection of the private sphere extends to confidential communication. Especially where statements are made vis-à-vis family members and confidants, the emphasis is often less on the expression of one’s opinion with the aim to influence the opinion of others, and more on the development of one’s own personality. Only in situations of particular confidentiality is it possible for individuals to express emotions without reserve, to reveal secret wishes or fears, to frankly state their opinion about certain matters and people, or to unburden themselves in their self-presentation. In such circumstances, individuals may be prompted to make statements which, either in terms of content or form, they would not make vis-à-vis outsiders or the public. Yet as an expression of and prerequisite for the development of one’s personality, such statements enjoy protection under the general right of personality.

At the same time, confidential communication [meriting protection] is not limited to statements that aim to foster personal development. Statements made in the private sphere or to very close family members do not only serve the purpose of expressing one’s own honest sentiments, or of finding relief by expressing one’s discontent. Rather, statements made in that sphere may also be directed at family members or other confidants in order to help them through a personal or existential crisis, contributing to their mental and emotional balance or aiding their integration into society (cf. BVerfGE 57, 170 <178>). In such circumstances, too, individuals may be prompted to make statements or choose forms of expression that they would avoid under normal circumstances, but which nonetheless merit fundamental rights protection under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law.

This is reflected in the case-law of the criminal courts and in legal scholarship through the recognition of a [protected] sphere in which defamatory statements about absent third parties made in the context of close personal relationships do not constitute insults under criminal law if the statement is an expression of a special relationship of trust and if there is no reasonable possibility that it will be shared with others […].

Contrary to the view of the criminal courts that deal with the case at issue, however, the protection afforded within the confidential sphere is not lost simply because the state gains knowledge of statements made in confidence. This also applies to the monitoring of prisoners’ correspondence pursuant to §§ 29(3) and 31 of the Prison Act. Such monitoring is, in principle, permissible under constitutional law to protect other significant legal interests. It serves to avoid endangering the objective of prison sentences and prison security and order, as well as to prevent the covering up of criminal acts already committed and the commission of new ones. It is also inevitable that in the course of monitoring correspondence, prison officers obtain knowledge of the entire contents of the monitored correspondence. Even where prison officers thus obtain knowledge of a statement, however, that statement still belongs to the private sphere that is protected by fundamental rights. By granting monitoring powers to authorities, the state may lawfully intrude on that sphere; however, by doing so it cannot redefine the private sphere as a public sphere. Rather, the fundamental rights protection afforded to that sphere requires that the confidential nature of the communication be upheld despite monitoring by the state. A statement is not stripped of its confidential nature merely because the person making the statement knows that the correspondence is being monitored (cf. BVerfGE 35, 35 <40>).

A different conclusion is only merited if the persons making such statements themselves set aside confidentiality; in this case, the possibility of third parties gaining knowledge of their statements is actually attributable to these persons, and does not result from state interference. This may, for example, be the case if the person making the statement disregards necessary precautions to shield the statement from third parties, or chooses transmission channels that are subject to monitoring even though they could easily have made contact using other channels. This applies all the more in case a statement is communicated to trusted persons for the sole purpose of hurting the person monitoring the correspondence or using the contacted person to hurt third parties. However, such an assumption requires the establishment of factual circumstances supporting it.

These standards apply irrespective of whether the statements at issue constitute incoming or outgoing prison communication. Likewise, it is irrelevant whether it is the person making the statement or the recipient who is serving a prison sentence or being held in remand detention. Finally, the group of potential confidants is not limited to spouses (BVerfGE 35, 35; 42, 234) or parents (BVerfGE 57, 170). The arguments set out in the latter decision (BVerfGE 57, 170 <178>) particularly show that, in light of its purpose, the protection of one’s personality requires that this group be extended to other relationships of trust that are of similar quality.

4. Based on these standards, the challenged decisions do not stand up to constitutional review.

It is not objectionable under constitutional law that the criminal courts found the complainant’s letter to constitute serious insult, lacking any factual basis, of the prison officers at the Heilbronn Correctional Facility. At the same time, the criminal courts based the complainant’s conviction on the assumption that the monitoring of correspondence by the state sets aside a statement’s confidential nature, finding that the person making the statement had to expect that their statement would become known to third parties due to the monitoring measures. This assumption, however, is incompatible with the protection of the private sphere under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law, which supplements the protection afforded by freedom of expression. The criminal courts did not establish that the confidential nature of the statement was set aside by the complainant herself, rather than by the state’s monitoring of correspondence. Nor do the established facts of the case support such an assumption.

II.

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