Mephisto decision
The Mephisto decision of the Federal Constitutional Court of February 24, 1971 applies in German jurisprudence as a fundamental judgment on artistic freedom and the general right of personality (APR). The Federal Constitutional Court defined the term “art” for the first time from a constitutional point of view and made it clear that the freedom of art ( Art. 5 (3 ) GG ), which is unconditionally guaranteed under the Basic Law, is subject to restrictions, namely those that result from other fundamental rights. If artistic freedom collides with other fundamental rights, the legal interests must be weighed up (see Practical Concordance ).
facts
The background to the constitutional complaint was the ban brought against the Nymphenburger Verlagshandlung by Peter Gorski , the adoptive son and sole heir of the late actor and director Gustaf Gründgens (1899–1963) , the book Mephisto - the novel of a career by Klaus Mann , first published in 1936 by Exilverlag Querido Amsterdam, to reproduce, distribute and publish.
The novel depicts the rise of the well-known actor Hendrik Höfgen, who denies his political convictions and strips off all human and ethical ties in order to pursue an artistic career in pact with the Nazi rulers. The actor Gustaf Gründgens served as a model for the fictional character Hendrik Höfgen . Numerous details - his outward appearance, the plays in which he participated and their chronological order, the rise to the Prussian State Council and general manager of the Prussian State Theaters - correspond to the outward appearance and the life of Gründgens. The novel is also based on people from the area around Gründgens at the time.
The Hanseatic Court had with judgment connected from 1966 believes that the presentation of the person Hendrik clearly referring to Gründgens and causing a degradation of his person. The Senate explicitly called the book a diatribe in the form of a novel . Hence a prohibition on its reproduction, publication and distribution should be pronounced. The Federal Court of Justice upheld this decision in 1968.
The Nymphenburger Verlagshandlung, represented by its managing director Berthold Spangenberg , filed its constitutional complaint against these decisions on the grounds that, among other things, these would violate the right to artistic freedom under Article 5 (3) of the Basic Law. This constitutional complaint was rejected on February 24, 1971.
Summary of the judgment
Artistic freedom in the light of the constitution
The first senate of the Federal Constitutional Court first dealt with the importance of artistic freedom according to the Basic Law: The essence of artistic activity is free creative design, in which impressions, experiences, experiences of the artist are brought to immediate view through the medium of a certain formal language . All artistic activity is an intertwining of conscious and unconscious processes that cannot be rationally resolved. Intuition, imagination and an understanding of art worked together in artistic creation; it is primarily not a communication but an expression, the most direct expression of the artist's individual personality.
The guarantee of artistic freedom concerns both the field of work and the sphere of activity of artistic creation. Not only the artistic activity (area of work), but also the presentation and dissemination of the work of art (area of activity) fell under the area of protection of Article 5 (3) of the Basic Law.
Also, freedom of art does not stand in the way of an artist describing events in real life and thereby partially ignoring reality. The reality of an event is condensed in the work of art . Reality is detached from the contexts and laws and brought into new relationships, for which the focus is not on the reality issue , but on the artistic requirement of vivid design. The truth of the individual process can and must, under certain circumstances, be sacrificed to the artistic unity.
Inviolability of human dignity as a barrier to artistic freedom
On the other hand, the right to freedom is not granted without restrictions . It is true that the barriers of Article 5 (2) of the Basic Law are inapplicable because the constitutional body did not see artistic freedom as a special case of freedom of expression. But the limits of the guarantee of artistic freedom are determined by the constitution itself, namely by other fundamental rights.
The right of personality of Article 2, Paragraph 1 of the Basic Law would also come into question in principle. However, this ends with the death of the person. However, the commandment of the inviolability of human dignity, which underlies all basic rights, works beyond the death of a person. It is incompatible with Art. 1 GG if a person, who is dignified by virtue of being a person, is allowed to be degraded or degraded in this claim to respect even after his death.
The decision as to whether the basis of the artistic representation on personality data of real reality is to be feared as a serious interference with the publication of the work of art in the protected personality area of the person represented can only be made after weighing all the circumstances of the individual case. It should be noted whether and to what extent the image appears so independent from the original through the artistic design of the material and its classification and subordination in the overall organism of the work of art that the individual, personal and intimate is objectified in favor of the general, symbolic character of the figure . However, if such a consideration, taking into account the art-specific, shows that the artist has drawn or even wanted to draw a portrait of the original , the extent of the artistic alienation or the extent and the significance of the falsification for the reputation of the person concerned or for his memory come up on.
The Federal Constitutional Court therefore had to decide whether the civil courts, when they weighed up the rights of the deceased Gustaf Gründgens and his adopted son, protected by Art. 1, Paragraph 1, and that of Art. 5, Paragraph 3, Sentence 1, GG Artistic freedom had taken into account the principles set out. In the decision of this question there was a tie in the Senate. As a result, in accordance with Section 15 (4) sentence 3 BVerfGG, it could not be established that the contested judgments had violated the Basic Law.
Nonetheless, it became clear , even through the differing votes of two judges, that with the passage of time, a different result could emerge in the balance between artistic freedom and human dignity. This view has been confirmed: The novel Mephisto - Novel of a Career is freely available today, although the judgment that prohibits its publication still stands today.
Meaning and consequences of the judgment
The Mephisto - novel of a career case was the first in which the Federal Constitutional Court had to grapple with the question of whether the freedom of art is subject to restrictions and, if so, which ones. Because Art. 5 GG was deliberately laid out by the constitutional body in view of the time of National Socialism and the prevailing idea of degenerate art only a few years ago in such a way that artistic freedom (as well as the freedom of science, research and teaching) is in paragraph 3 and thus the limits of paragraph 2, namely the general laws, the legal provisions for the protection of young people and the right to personal honor are not applicable. The Federal Constitutional Court made this clear in its decision.
But with the novel by Klaus Mann, the specific question arose as to whether artists should or should be allowed to go through everything. Gustaf Gründgens' honor had been seriously affected by the presentation - this was expressly stated twice in the lower court. However, this defamation evidently consisted precisely in the fact that his Nazi collaboration was portrayed and its character prerequisites were examined - in fact, criticism of Gründgens' actual behavior was forbidden. Via the way of viewing other basic rights as barriers to artistic freedom, the barriers of Art. 5 Para. 2 GG crept through the back door, so to speak, into Art. 5 Para. 3 GG, which was actually guaranteed without barriers . But: With the requirement of a comprehensive weighing of the conflicting legal interests, the importance of artistic freedom is taken into account in a very special way. This case law is still valid today.
The novel Mephisto was first published in 1965 as part of the Klaus Mann edition at the Nymphenburger Verlagshandlung and delivered to the bookstore in a night and fog, where the expected (and prompt) injunction could not take effect; this edition also resulted in the court proceedings mentioned above. In 1981 the novel was made into a film and in the same year it was published for the first time unhindered in the Federal Republic of Germany (until then the edition printed in the GDR could be obtained without great difficulty).
literature
- Rafaela Bockslaff: The treatment of the "Mephisto case" as an example of the problem of the enforcement of Federal Constitutional Court decisions , at the same time dissertation at the University of Kiel, Lang, Frankfurt am Main; Bern; New York; Paris 1987. ISBN 3-8204-0206-3 .
- Klaus Mann : Mephisto. Novel of a career. With an afterword by Michael Töteberg . Revised new edition. Rowohlt-Taschenbuch-Verlag, Reinbek near Hamburg 2000, ISBN 3-499-22748-7 ( rororo 22748).
- Nadine Heckner, Michael Walter: Explanations on Klaus Mann. Mephisto. Novel of a career. Bange, Hollfeld 2005, ISBN 3-8044-1823-6 ( Koenig's explanations and materials series 437).
- Eberhard Spangenberg: Career of a Novel. Mephisto, Klaus Mann and Gustaf Gründgens. A documentary report from Germany and the exile 1925–1981. Ellermann, Munich, 1982, ISBN 3-7707-0186-0 .
- Erwin Stein , Wiltraut Rupp-von Brünneck : Mephisto: the decision of the Federal Constitutional Court and the differing judges' opinion; the full wording of the decision of February 24, 1971 together with the attached written reasons for the differing opinions of the judge Professor Dr. Stein and the judge Mrs. Rupp-von Brünneck , Nymphenburger Verlagshandlung, Munich 1971, ISBN 3-485-01999-2 .
See also
Individual evidence
- ^ Federal Constitutional Court: Order of February 24, 1971 · Az. 1 BvR 435/68 (Mephisto). February 24, 1971. Retrieved April 19, 2019 . = BVerfGE 30, 173 ff.
- ^ Eberhard Spangenberg: Career of a novel. Mephisto, Klaus Mann and Gustaf Gründgens , Rowohlt Taschenbuch Verlag, Reinbek 1986. ISBN 3-499-15893-0 (p. 239: copy - 1 BvR 435/68 - to RA Gerth Arras, Stuttgart).
