Insulting creeds, religious societies and ideological associations

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The blasphemy law is a criminal offense, which in § 166 of the Criminal Code of the Federal Republic of Germany is governed. Because of its history, Section 166 is often referred to as a blasphemy paragraph or a blasphemy paragraph .

Legal text

(1) Anyone who publicly or through the dissemination of writings (Section 11 (3)) insults the content of the religious or ideological creed of others in a way that is likely to disturb the public peace will face imprisonment for up to three years or a fine fined.

(2) Anyone who, publicly or through the dissemination of scriptures (Section 11 (3)), insults a church or other religious society or ideological association, its institutions or customs in a way that is likely to disturb the public peace, shall also be punished .

history

Criminal trials against charges of godlessness or blasphemy have been known since ancient Greece and Rome , for example against Socrates or Jesus of Nazareth .

With the Enlightenment and modern criminal legislation based on Kant's doctrine of reason, not only torture but also blasphemy (blasphemy) were deleted without replacement, for example in the Bavarian penal code revised by Johann Anselm von Feuerbach in 1813.

The Prussian Penal Code of 1851, on the other hand, punished public blasphemy and mockery of one of the Christian churches with imprisonment for up to three years . Other religious communities were not protected by this law. The churches themselves were also subject to protection. There was no need to disturb the public peace.

The penal code of the German Reich adopted these penal regulations in 1871. In addition to blasphemy, anyone who publicly insulted one of the Christian churches or another religious society with corporation rights within the Reich territory or its institutions or customs or in a church or in one was also punished perpetrated insulting mischief in other places designated for religious gatherings.

The offense was revised in 1969 by the 1st Penal Reform Act. It was made clear that God in himself cannot be protected by the paragraph. The new version deliberately chose public peace as a legal asset worthy of protection and not, as it says in its justification, the individual's religious feelings .

The Bundestag faction Bündnis 90 / Die Grünen submitted a bill in 1995 to repeal the paragraph.

After the former prostitute Domenica Niehoff had "canonized" the transvestite Charlotte von Mahlsdorf in a demonstration during a demonstration by Pope John Paul II in Berlin when Pope John Paul II visited , it was taken nude on the fourth altar of Cologne Cathedral on July 19 It came in 1996 and, in the opinion of many, numerous films and plays have increasingly lacked any degree of tolerance and respect for the religious convictions of others, for example the play "Corpus Christi" in the Heilbronn Theater , which portrayed Jesus and his apostles as gay drinking enthusiasts , members of the CDU / CSU parliamentary group and the parliamentary group itself introduced a draft law in the Bundestag in November 2000. In Section 166 of the Criminal Code, the criterion that the abuse must be capable of disturbing the public peace should be deleted. In future, it should already be punishable if anyone publicly or by disseminating scriptures insults the content of the religious or ideological confession of others. The bill was rejected on April 25, 2002.

In 2006, Edmund Stoiber , then Bavarian Prime Minister, and Markus Söder , then CSU Secretary General, demanded a tightening of the paragraph.

CSU politicians, including Johannes Singhammer and Horst Seehofer , once again called for Section 166 StGB to be tightened in 2012 after the publication of Mohammed cartoons in the French satirical newspaper Charlie Hebdo . The request was supported by Bamberg's Archbishop Ludwig Schick , but rejected by Muslim associations, the Protestant Church and Chancellor Angela Merkel .

In February 2013, the show today broadcast a satirical film with which the cabaret artist Carolin Kebekus applied to the then Cardinal Joachim Meisner as Popess . Then the Pius Brotherhood called for Kebekus to be reported; about 100 reports were filed. The public prosecutor's office in Cologne checked whether the contribution complied with Section 166 of the Criminal Code, found no criminal action and stopped the investigation. The satirically exaggerated representation has no insulting character, but a content critical of the church .

As a result of the attack on Charlie Hebdo in January 2015, the FDP politicians Christian Lindner and Sabine Leutheusser-Schnarrenberger spoke out in favor of abolishing the paragraph, while representatives of the CDU and SPD defended its existence.

Following its program for the 2013 federal election, the Left wanted to review the so-called Blasphemy Act (Section 166 StGB) and the holiday laws to determine whether they are necessary to preserve the religious sentiments of members of the various faith communities. In 2017, a corresponding motion did not find a majority.

criminology

There are around 15 convictions every year.

Offense

The protected legal interest is public peace , not the confession as such or the mere feelings of its followers.

Insulting is a particularly serious disparaging expression. The rejection of a religion or world view or criticism of them are not punishable. According to their content, true statements of fact cannot represent insults, but they can be punishable by their form.

The verbal abuse does not have to be directed at the circles in which it can lead to the disturbance of the public peace. It is enough if it is to be feared that they will become known there.

Confessions are both religious and ideological ideas that are differentiated from beliefs or opinions in that they are experienced by the confessing person as directly constituting the value of their own person. The religious and ideological communities include both the churches and religious communities as well as z. B. the Freemasons or the Humanist Union .

Section 166 of the Criminal Code is an abstract endangering offense , i.e. H. public peace need not actually be jeopardized by the abuse; justified reasons for fear that the public peace could be disturbed are sufficient. The assessment of whether this is the case should be made from the perspective of an objective, not particularly sensitive observer.

Criticism of the rule

Restriction of fundamental rights

Critics see the German regulation as a restriction of the legal interest of freedom of expression . Particularly through unilateral application, the paragraph leads to the protection of the majority opinion , but not necessarily to the protection of a minority opinion , since the interests of smaller groups are less often equated with “public peace”.

Lack of certainty

Critics also reject the paragraph as a so-called rubber paragraph , especially because it is not clear how "abuse" is to be defined - any negative expression could fall under this. It is even more questionable when such "abuse" is suitable to disturb the public peace (the " suitability " is enough; so-called abstract endangering offense ). Critics claim that such a "disturbance of peace" - analogous to sedition  - can be constructed a posteriori (retrospectively) if believers complain. In addition, the disturbance of peace can be brought about consciously by the religious community concerned so that the paragraph can be applied, for example by using force against the “blasphemers” or by blocking a theater in which a play critical of religion is to be performed. On the other hand, in political weather situations in which the persecution of blasphemers is not opportune, it can almost always be argued that the accused is not known enough to shock a broad public with his statements. In Critical Justice , Ron Steinke stated that the required disruption of public peace ultimately meant that only the threat of violence would make it possible for the person threatened to be prosecuted, whereas peaceful believers could not have any criminal defense against their possible insult.

Against the principles of the Enlightenment

It is criticized that the state thereby suppresses critical thinking: “The central characteristic of the Enlightenment is to be able to question everything. The light of reason should shine in every corner in order to overcome oppression, superstition, intolerance and prejudice. (...) With such laws, the state makes itself a supporter of the enemies of open discourse. Representatives of any ideology, whether political or religious, simply have to be able to endure the fact that their worldview is questioned, criticized and, yes, ridiculed. "

Atheist criticism

The paragraph is strong in the criticism of atheist groups and church critics as well as of artists who feel restricted in their freedom. Kurt Tucholsky said of this “medieval dictatorship paragraph” (in the previous version): “I don't like to deal with the church; there is no point in discussing with a point of view that has been protected under criminal law. "( Peter Panter :)

In the annual report Freedom of Thought - A Global Record on the Rights, Legal Status, and Discrimination Against Humanists, Atheists, and the Non-religious by the International Humanist and Ethical Union (IHEU), Germany ranked second worst (out of five) Freedom in 2014 of Thought Status Severe Discrimination assessed. The decisive reason for this was § 166 StGB: “'Blasphemy' is outlawed or criticism of religion is restricted and punishable with a prison sentence”.

After the attack on the editorial office of the satirical magazine Charlie Hebdo , the philosopher Michael Schmidt-Salomon criticized that “the public peace [...] is not disturbed by artists who satirically target religions, but by fanatics who adore Not being able to respond appropriately to criticism ”. He called for the abolition of § 166 StGB: “In practice, this paragraph has led to a complete reversal of the perpetrator-victim relationship. Well-known artists such as Kurt Tucholsky or George Grosz were disciplined with the help of this censorship paragraph. In fact, however, the public peace was never threatened by critical art, but rather by religious or political fanatics who were unable to rationally process the artistic questioning of their worldview. "

Criticism of the United Nations Human Rights Committee

The United Nations Human Rights Committee, a panel of eighteen independent experts tasked with evaluating complaints regarding the International Covenant on Civil and Political Rights , named in 2011 “Prohibitions on depictions of disrespect for any religion or other belief system, including Blasphemy laws, [considered] incompatible with the treaty, except in the specific circumstances as foreseen in Article 20, paragraph 2 of the treaty. "Article 20, paragraph 2 calls upon States to prohibit:" The advocacy of national, racist or religious hatred that incites discrimination, hostility or violence. "The commentary demands with caution that no restriction should affect the guarantees of the agreement on equality before the law (Article 26) and freedom of thought, conscience and religion (Article 18) may violate. Laws that limit blasphemy are, as such, incompatible with general human rights standards.

Positions of the parties in Germany

Traditionally, the Greens , Die Linke and FDP advocate the abolition of the blasphemy paragraph, while the CDU and SPD (which had passed the current regulation in 1969 in the grand coalition ) see no need for change. The CSU even argued for tightening the legislation.

Legal practice

Examples (chronological):

  • In 1984 a woman from Göttingen was sentenced in two instances , namely for the statement made on a leaflet that the Christian churches belong to the “largest criminal gangs” in the world, and for two stickers (one “Better a tainted contraception than an immaculate conception”) and a “masochism is curable” in connection with a crossed-out crucifix).
  • In 1993 the Cologne Stunksitzung showed a crucifix with the inscription " Tünnes " instead of "INRI". The sign was seized by the police after a criminal complaint for blasphemy. The director of the stunks meeting objected to the subsequent penalty order of 6000  DM . This was granted because of the primacy of artistic freedom .
  • With the help of § 166 the representation of crucified pigs and the performance of the musical Das Maria-Syndrom by Michael Schmidt-Salomon were banned in 1994 , in which a (modern) "Marie" is fertilized by a contaminated toilet seat and a case of "virgin birth" entry. The first performance of the piece was to take place on May 28, 1994 in Trier . The day before, at the request of the diocese of Trier, the performance was forbidden by the local regulatory office. A performance in front of an audience “guaranteed to have no religious feelings” was also not permitted. The subsequent legal proceedings went through several instances:
  • In February 2006, a 61-year-old from Lüdinghausen was sentenced to 12 months probation and 300 hours of community service for “insulting a religious creed” and “disturbing the public peace” . He had stamped “Koran, the Holy Qur'an” on toilet paper and sent it to mosques and television stations along with a letter that described the Koran as a “cookbook for terrorists”. He also put it up for sale in order to finance a “memorial to all victims of Islamic terror, past and future”. As a result, he was severely threatened and received personal protection , which the district court assessed as mitigating the penalty.
  • 2006 was a sketch of the stunksitzung, in which it was about Pope Benedict XVI. and the Cologne Cardinal Meisner went, the subject of public prosecution investigations. The WDR did not broadcast this sketch when it showed the session on TV. The investigation was closed.
  • In 2016, the district court in Lüdinghausen, North Rhine-Westphalia, sentenced a retired teacher to a fine of € 500 on probation. He had put stickers on his car with slogans directed against the Roman Catholic Church. He was acquitted in the second instance.

Reception in art

Since 2008, the Freche Mario Prize has been awarded in a competition for blasphemy works of art in various genres (including cartoons, sculptures, texts, cabaret contributions, pieces of music, short films). The organizers intend to use the art prize to reinforce the demand for the abolition of Section 166 of the Criminal Code.

Other countries

Legal situation for blasphemy in the world.
  • Local restrictions
  • Fines and Restrictions
  • Prison terms
  • death penalty

    • Austria

    In Austria , a similar provision applies under the title Degradation of Religious Teachings ( Section 188 StGB ).

    Anyone who publicly disparages or mocks a person or thing that is the object of worship by a domestic church or religious society, or a doctrine, legal custom, or legal institution of such a church or religious society, under which his conduct is capable of causing a justified nuisance is punishable by imprisonment of up to six months or a fine of up to 360 daily rates.

    Furthermore, disrupting a religious practice , for example a church service, is also a criminal offense ( Section 189 StGB).

    (1) Anyone who uses force or threats to prevent or disturb the legally permissible worship service or individual such acts of worship by a church or religious society in Germany shall be punished with imprisonment for up to two years.

    (2) Who

    1. at a place that is dedicated to the legally permissible religious practice of a church or religious society existing in Germany,
    2. at the legally permissible public worship service or individual legally permissible public worship services of a church or religious society existing in Germany or
    3. with an object directly dedicated to the legally permissible worship of a church or religious society existing in Germany

    engages in mischief in a manner that is likely to cause a justified nuisance is punishable by imprisonment of up to six months or a fine of up to 360 daily rates.

    Well-known cases are a process for § 188 StGB against the cartoonist Manfred Deix , who was convicted in the first instance in 1994 but acquitted in the second instance. There were several charges against the cartoonist Gerhard Haderer because of his book The Life of Jesus (2002); the proceedings were discontinued in 2003 by the Vienna Public Prosecutor's Office. In a few lesser known cases, however, there were final convictions based on Section 188 of the Criminal Code.

    Until the introduction of the new Austrian Criminal Code in 1975, insulting “the highest being” was punishable by up to five years' imprisonment.

    Switzerland

    In Switzerland there is a similar regulation under the title Disruption of freedom of religion and worship in Art. 261 of the Criminal Code .

    Anyone who publicly and in a common way insults or mocks the conviction of others in matters of faith, in particular the belief in God, or dishonors objects of religious veneration, who maliciously prevents, disrupts or publicly mocks a constitutionally guaranteed act of worship, whoever uses a place or an object for one Constitutionally guaranteed cult or intended for such a cultic act, maliciously dishonored, is punished with a fine of up to 180 daily rates.

    GDR

    The Criminal Code of the GDR had no comparable regulation. Only “religious acts” were protected under Section 133.

    Netherlands

    On November 29, 2012, the Dutch Parliament decided to abolish Paragraph 147 there, which had not been applied since 1968.

    Ireland

    In Ireland , Article 40 of the Constitution stipulated that the publication of blasphemous material should be a criminal offense. A corresponding law had existed since 1961, but not a single conviction was made due to its unclear definition of blasphemy. As part of a legal reform in July 2009, the corresponding criminal provision was revised with effect from January 1, 2010. In October 2014, the Irish government announced that it would hold a referendum to remove the blasphemy article from the Irish constitution . This referendum took place on October 26, 2018 (together with the presidential election in Ireland ); 64.85 percent voted for the deletion of Article 40.

    Article 40 has never been used in Ireland's recent history; it was considered superfluous. Justice Minister Charles Flanagan had called for the referendum to be abolished; he expressed his satisfaction with the result of the referendum. The ban on blasphemy has no place in the Irish constitution; Ireland is rightly proud of its "modern and liberal society".

    Pakistan

    See Blasphemy # Blasphemy Law in Pakistan

    See also

    literature

    • Karlheinz Deschner : The offended church, or: Who disturbs the public peace ?, expert opinion in the Bochum § 166 trial . Ahriman, Freiburg 1986, ISBN 3-922774-05-9 (contemporary document in which information on several cases can be found, including the stickers from Römermann).
    • Gerd Schwerhoff : Challenge God and the world. Theological construction, legal fight and social practice of blasphemy from the 13th to the beginning of the 17th century. Bielefeld University, habilitation thesis, November 1996; corrected and abridged online version 2004 ( PDF; 1.54 MB )
    • Armin Steinbach : Insulting religious societies according to § 166 StGB - an appreciation of the cartoon dispute according to German criminal law. In: Legal review . Year 2006, issue 12, pages 495–499. doi: 10.1515 / JURU.2006.136 .
    • Ron Steinke: Blasphemy in the secular state. Plea for the abolition of § 166 StGB. In: Critical Justice. 4/2008, pp. 451-457 ( kj.nomos.de PDF).
    • Christian Ströbele, Mohammad Gharaibeh, Tobias Specker, Muna Tatari (eds.): “Criticism, contradiction, blasphemy - questions to Christianity and Islam”. (= Theological Forum Christianity - Islam 2016), Pustet, Regensburg 2017, ISBN 978-3-7917-2887-2 .
    • Christoph Lung: Criminal blasphemy. Historical relic or modern crime? Studies and contributions to criminal law 25, Mohr Siebeck 2019. ISBN 978-3-16-156781-0

    Web links

    Individual evidence

    1. ↑ Herbert Grziwotz: A role model for all of Europe: 200 years of the Bavarian Criminal Code Legal Tribune Online , May 16, 2013
    2. ^ Prussian Criminal Code of 1851 full text (pdf)
    3. ↑ Hörnle in Munich Commentary on the Criminal Code, 2nd edition 2012, § 166 Rn. 3
    4. ↑ a b Fischer, StGB, 58th edition 2011, § 166 StGB, Rn. 1
    5. ↑ Printed matter V / 4094. (PDF) German Bundestag , March 26, 2014, accessed on March 26, 2014 . P. 28
    6. ^ Draft of a law amending the Criminal Code - § 166 StGB BT-Drs. 13/2087 of July 27, 1995
    7. ↑ a b c taz.de: German Muslims withstand Satire , September 21, 2012
    8. ↑ Printed matter 14/4558. (PDF) German Bundestag , November 7, 2000, accessed on March 26, 2014 .
    9. ↑ Minutes of the plenary 14/233. (PDF) German Bundestag , March 26, 2014, accessed on March 26, 2014 .
    10. ↑ FAZ.net: outrage at world level. April 23, 2006
    11. ↑ Edmund Stoiber - Higher penalties for blasphemy. June 19, 2006 ( Memento from January 8, 2015 in the Internet Archive )
    12. ↑ Stern.de: Merkel does not want to criminalize blasphemy , September 20, 2012
    13. ↑ spiegel.de
    14. ↑ Claudia Becker: Pius brothers call for criminal charges against comedian Die Welt , June 11, 2013
    15. ↑ Public prosecutor stops investigation against Kebekus Die Welt , July 9, 2013
    16. ^ Zeit Online: Assassinations trigger debate about blasphemy. January 12, 2015
    17. ↑ Election program for the 2013 federal election. Realize freedom of religion, treat religious communities equally, institutionally separate state and church Website Die Linke, archive, accessed on April 30, 2019
    18. ↑ cf. Election program of the DIE LINKE party for the 2017 federal election p. 124 f.
    19. ↑ Abolition of § 166 StGB on #BlasphemyDay affirmed - Good prospects in a Jamaica coalition Positions of the parties in the German Bundestag on the abolition of §166 StGB with ifw comment / DIE LINKE. Website of the Institute for Weltanschauungsrecht, September 30, 2017
    20. ↑ Fischer, StGB, 58th edition 2011, § 166 StGB, Rn. 2
    21. ↑ BGH NStZ 2000, 643
    22. ↑ Hörnle in Munich Commentary on the Criminal Code, 2nd edition 2012, § 166 Rn. 15th
    23. ↑ Hörnle in Munich Commentary on the Criminal Code, 2nd edition 2012, § 166 Rn. 17th
    24. ↑ Stübinger in Kindhäuser / Neumann / Paeffgen, Criminal Code, 4th edition 2013, § 166 Rn. 6th
    25. ↑ Lenckner / Bosch in Schönke / Schröder, Criminal Code, 29th edition 2014, § 166 marginal no. 12
    26. ↑ Fischer, StGB, 58th edition 2011, § 166 StGB, Rn. 4th
    27. ↑ Fischer, StGB, 58th edition 2011, § 166 StGB, Rn. 6, 7
    28. ↑ Fischer, StGB, 58th edition 2011, § 166 StGB, Rn. 14th
    29. ↑ Hörnle in Munich Commentary on the Criminal Code, 2nd edition 2012, § 166 Rn. 22nd
    30. ↑ Fischer, StGB, 58th edition 2011, § 166 StGB, Rn. 2b: “The apparently inaccurate assertion that in Germany the Christian religion in particular is exposed to increasing attacks (BT-Drucks. 14/4558, p. 3f.) Highlights the fact that § 166 has hardly ever been in practice Protection of the heretics from the majority, but the protection of the majority from them . "(Emphasis in the original)
    31. ^ Ron Steinke: "Blasphemy" in the secular state. (PDF) Critical Justice, 2008, accessed July 8, 2019 .
    32. ↑ Markus Becker: Attack on "Charlie Hebdo": Why blasphemy is part of it. Spiegel Online , January 9, 2015, accessed January 9, 2015 .
    33. ↑ It is so different in human life! In: The world stage . Apr. 14, 1931, p. 542
    34. ↑ freethoughtreport.com p. 498, accessed December 11, 2014.
    35. ^ Humanistic press service: After attack on "Charlie Hebdo": Abolish profanity paragraph 166 StGB! Article of January 8, 2015.
    36. ↑ www2.ohchr.org
    37. ↑ hpd.de
    38. ↑ Thorsten Jungholt: Blasphemy: Is the law against blasphemy out of date? In: THE WORLD . January 13, 2015 ( welt.de [accessed December 29, 2018]).
    39. ^ LG Göttingen, judgment of December 27, 1984. In: NJW 1985, p. 1652 f .; OLG Celle in NJW 1986, p. 1275 f. and "Femina = who has less faith" . In: Der Spiegel . No. 43 , 1984, pp. 117-128 ( Online - Oct. 22, 1984 ).
    40. ↑ Decisions in church matters since 1946/1993 : Vol. 31, pages 353,354 ISBN 3-11-015739-X
    41. ↑ Order of the Federal Administrative Court of December 11, 1997, Az. 1 B 60/97
    42. ^ Judgment of the OVG Koblenz from December 2, 1996, Az. 11 A 11503/96, NJW 1997, pp. 1174–1176
    43. ↑ Decision of the Federal Constitutional Court of April 20, 1998, Az. 1 BvR 667/98
    44. ↑ Christian Rath: Koran verses stamped on toilet paper. the daily newspaper , February 8, 2006, accessed on December 17, 2010 .
    45. ↑ Suspended sentence for "Koran toilet paper" - imprint. Kölner Stadt-Anzeiger , February 23, 2006, accessed on November 22, 2017 .
    46. ^ AG Lüdinghausen: judgment of 02/23/2006 - 7 Ls 540 Js 1309-05, 31/05, BeckRS 2006, 03249
    47. ↑ The Pope is not allowed to cuddle at WDR . In: Handelsblatt
    48. ↑ stunksitzung.de
    49. ↑ Court sentenced former teacher for blasphemy. In: Spiegel Online . Retrieved November 22, 2016 .
    50. ^ Acquittal for "blasphemers" . ( hpd.de [accessed on September 14, 2018]).
    51. ↑ Objective and Background | Art Prize "The Cheeky Mario". Retrieved April 17, 2020 .
    52. ↑ The muzzle grows tighter . The Economist, June 4, 2016
    53. ^ Constitution of Ireland Wikisource.
    54. ↑ taz.de: Forward to the Middle Ages , January 12, 2010
    55. ↑ Carten Volkery: Ireland: Incredulous amazement at law against blasphemy. Spiegel Online from July 16, 2009
    56. ↑ thejournal.ie: It's official: We'll have a referendum to remove blasphemy from the Constitution , October 2, 2014
    57. ↑ www.electionsireland.org
    58. ↑ see also Thirty-seventh Amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Bill 2018 (Bill 87 of 2018)
    59. ↑ We must vote yes to remove the crime of blasphemy from our Constitution
    60. ↑ FAZ.net: Blasphemy no longer unconstitutional in Ireland