Protection of legitimate interests

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The protection of legitimate interests is a justification of German criminal law .

scope of application

Regulated by law in Section 193 StGB , it concerns the offense of insult ( Section 185 StGB) and defamation ( Section 186 StGB) and regulates that there is no criminal offense if the offender acted in the interests of legitimate interests . According to the prevailing view, the justification of safeguarding legitimate interests applies to all offenses including assault; on the other hand, it is not applicable to other crimes against individual legal interests and, in particular, is not the expression of a general balancing clause.

Case law of the Federal Constitutional Court

In the context of private or political opinion-forming, Section 193 of the Criminal Code, in the opinion of the Federal Constitutional Court, takes into account the special requirements of freedom of expression . This view goes back to the interaction theory established by the Federal Constitutional Court . The safeguarding of legitimate interests represents the simple legal implementation of the basic right of Article 5 of the Basic Law , freedom of expression.

Case groups

The law names such legitimate interests as cases:

  • Critical judgments about scientific, artistic or commercial achievements
  • Statements which are made to defend rights or [otherwise] to protect legitimate interests
  • Accusations and reprimands by superiors against their subordinates
  • official reports or judgments on the part of an official as well as the catch-all offense
  • similar cases.

In all of these constellations, even if the utterance itself constitutes an expression of disregard or disregard, criminal liability for insult should only be given if it results from the form of the utterance or the circumstances from which it arises.

Statements by lawyers in the exercise of a mandate

Another area in which Section 193 of the Criminal Code applies are statements made by lawyers when exercising a mandate. These, too, are, insofar as the exercise of the legal profession requires, as the safeguarding of legitimate interests, largely exempt from punishment, even if they represent a defamation.

In the struggle for law, strong, haunted expressions and obvious catchphrases must be accepted. This also applies in the event that a lawyer acts on his own behalf. No higher demands may be placed on him than on other lawyers in the context of safeguarding clients' interests.

Even an exaggerated and abusive criticism does not in itself turn an utterance into an abusive criticism . A disparaging remark takes only the character of an insult to, if not more in their discussion on the matter, but the defamation of the person in the foreground stands. The term is to be interpreted narrowly. The limit to vicious criticism is not exceeded if it is not evident from the statement that the criticism of the person completely takes the factual issue into the background . When determining the limit to criticism of abuse, the factual and procedural nature of the utterance must be taken into account. Damage to honor usually has to withdraw from the freedom of expression if the allegation is part of a more comprehensive expression of opinion that serves to enforce legitimate personal rights in court proceedings and, in any case, from the viewpoint of the person making the statement , is not completely out of thin air. In addition, a judge is able and required to endure over-pointed criticism of his work in the "fight for justice".

The conviction of a lawyer because of his criminal complaint against a judge violates Art. 10 ECHR and is therefore covered by the scope of § 193 StGB. The same applies to a letter to the court that a judge was "not impartial and corrupt" .

Another important aspect is whether the offensive statement remained merely the content of the file and was only accessible to those involved in the proceedings, or whether the offensive statement was made public. If the offensive statement did not have any external impact , in case of doubt there was justification for legitimate interests.

Common law

In common law , unlike in German law ( § 192 StGB), any statement that corresponds to the substantive truth is free from punishment.

literature

  • Thomas Fischer , Commentary on the Criminal Code , 66th edition 2019, No. 28 ff on § 193 StGB
  • Sascha Sajuntz, The Current Developments in Press and Freedom of Speech, NJW 2017, 698

Web links

Individual evidence

  1. ↑ ECHR , judgment of April 23, 2015, complaint No. 29369/10, Morice v. France , NJW 2016, 1563
  2. ↑ ECHR, judgment of 16 January 2018, complaint No. 40975/08, Čeferin v. Slovenia , NJW 2019, 137
  3. ↑ BVerfG NJW 1988, 191; BGH NJW 1988, 1099; Düsseldorf Higher Regional Court , NStZ-RR 1996, 5.
  4. ↑ Kammergericht , JR 1988, 523; Schönke / Schröder , Commentary on the Criminal Code, 30th edition 2019, Rn. 22 on Section 193 of the Criminal Code.
  5. ↑ Thomas Fischer , Commentary on the Criminal Code, 66th edition 2019, Rn. 28a to Section 193 of the Criminal Code
  6. ↑ Zeit Online , abuse criticism limited to rare exceptional cases
  7. ↑ Decision of the OLG Munich of July 11, 2016, Az. 5 OLG 13 Ss 244/16 in the case " Freisler-comparison " = Anwaltsblatt 2016, 767 = StV 2017, 183 = NJW 2016, 2759, confirmed by decision of the OLG Munich dated May 31, 2017, Az. 5 OLG 13 Ss 81/17 = Anwaltsblatt 2017, 783 = BRAK-Mitteilungen 2017, 239 = DVBl 2017, 979 = StV 2018, 163
  8. ↑ Constantin Baron van Lijnden , acquittal before the Higher Regional Court Munich: lawyer was allowed to call the Senate worse than Roland Freisler
  9. ↑ ECHR, judgment of October 8, 2019, complaints No. 24845/13 and 49103/15, LP and Carvalho v Portugal , NJW 2020, 751
  10. ↑ ECHR, judgment of February 12, 2019, complaint No. 70465/12, Pais Pires de Lima v Portugal, NJW 2020, 753
  11. ↑ ECHR, judgment of January 12, 2016, complaint No. 48074/10 , Rodriguez Ravelo v Spain , with a comment by Franz Salditt