Summary:

I.

The applicant, who was born in 1924, is an advocate of National Socialist ideology. He passed written materials to a landlord in the latter’s public house after having a discussion with him on the Second World War. The written materials claimed in connection with the Holocaust that it was scientifically proven that there had not been any gas chambers for people, and that the Holocaust committed on the Jews was a “convenient lie” making it possible to attribute guilt for the Second World War to Germany. The applicant had handed the written materials to the pub landlord to enable him to inform himself of the allegedly factual historical events. No third parties had been present at this event.

The applicant was convicted for incitement to hatred because of these facts in accordance with § 130.2 no. 1a, § 130.3 and § 130.5 of the Criminal Code (Strafgesetzbuch). This provision reads as follows:

“(1)…

(2) Whosoever,

1.

with respect to written materials (…) which incite hatred against a previously indicated group, segments of the population or against an individual because of his/her affiliation to a previously indicated group or to a segment of the population, which call for violent or arbitrary measures against them, or which assault their human dignity by insulting, maliciously maligning or defaming them

a) disseminates such written materials;

b)…

shall be liable to imprisonment of up to three years or a fine.

(3) Whosoever publicly or in a meeting approves of, denies or plays down an act committed under the rule of National Socialism of the kind indicated in § 6.1 of the Code of International Criminal Law (Völkerstrafgesetzbuch), in a manner capable of disturbing the public peace shall be liable to imprisonment of up to five years or a fine.

(4)…

(5) § 130.2 shall also apply to written materials (…) of a content such as is indicated in § 130.3 and § 130.4.

(6)…”

The appeals on points of fact and law and on points of law only against the judgment of the Local Court (Amtsgericht) were unsuccessful in the outcome.

II.

The Federal Constitutional Court has found that the criminal conviction violates the applicant’s freedom of opinion guaranteed by sentence 1 of Article 5.1 of the Basic Law.

The following is stated as reasoning:

Opinions are always covered by the area protected by sentence 1 of Article 5.1 of the Basic Law. This is not a matter of whether they prove to be true or untrue, whether they are well-founded or unfounded, emotional or rational, are assessed as being valuable or valueless, dangerous or harmless. Accordingly, even the dissemination of National Socialist ideas does not fall outside the area protected by freedom of opinion per se.

Sentence 1 of Article 5.1 of the Basic Law also protects statements of fact since and to the degree that they are or can be a prerequisite for the formation of opinions. Deliberately or provenly untrue factual statements, by contrast, are not protected. The requirements made of the duty of truth may however not be overstretched. If it is not possible to separate the actual and the evaluative elements in an individual case without this falsifying the meaning of the statement, the statement as a whole must be regarded as an expression of opinion in the interest of the effective protection of fundamental rights.

The fundamental right of freedom of opinion is however not protected without reservation. In accordance with Article 5.2 of the Basic Law, it is in particular subject to the restrictions emerging from the general laws. Provisions which aim to prevent the propagandistic affirmation of the National Socialist rule of arbitrary force are excepted from the requirement of the generality of opinion-restricting laws.

When interpreting and applying the provisions restricting freedom of opinion, in turn, justice must be done to the restricted fundamental right. Solely the lack of value attaching to or the dangerous nature of opinions as such is not a reason to restrict them. It is not permissible to ban the content of an opinion as such, but only the manner of communication which already tangibly gives rise to overstepping the line to violating legal interests, and hence crosses the threshold to an immanent violation of legal interests.

In shaping incitement-to-hatred crimes, the legislator has taken the significance of sentence 1 of Article 5.1 of the Basic Law in defining values into account in that not all types of statement are made punishable in § 130.2 no. 1a, § 130.3 and § 130.5 of the Criminal Code. Punishment is imposed only on the dissemination which takes place if written material is made available to a larger group of individuals which can no longer be controlled.

According to the case-law of the Federal Constitutional Court, the passing on of written material to individual specific third parties by itself does not comply with the element of the offence of dissemination if it is not ascertained that the third party for his/her part will pass on the written materials to further individuals.

In the case at hand, the protected area of freedom of opinion is accessible. The denial of the Holocaust expressed by the applicant, as a provenly untrue statement of fact, is not per se covered by this protection. This allegation is however inseparably linked in the instant case to hypotheses which, as evaluative statements, are covered by the area protected by freedom of opinion.

Because of this, the impugned rulings should have taken into account the significance of sentence 1 of Article 5.1 of the Basic Law in defining values. The ordinary courts however overstretched the element of the offence of dissemination by already subsuming the mere exchange of written materials between two individuals under the element of the offence of § 130.2 no. 1a, § 130.3 and § 130.5 of the Criminal Code although there were no indications that the recipient would continue to disseminate the written materials that had been passed on.