Wunsiedel decision

from Wikipedia, the free encyclopedia
Wunsiedel
Logo of the Federal Constitutional Court
Delivered November 4, 2009
File number: 1 BvR 2150/08
Procedure type: Individual judgment VB
Rubrum :
Reference: BVerfGE 124, 300-347
facts
Judicial confirmation of the legality of the ban on the Rudolf-Hess "memorial marches"
Guiding principles
  1. Section 130.4 of the Criminal Code , as a non-general law, is compatible with Article 5.1 and 2 of the Basic Law . [...]
  2. [...] The Basic Law does not justify a general ban on the dissemination of right-wing extremist or even National Socialist ideas with regard to the intellectual impact of its content.
Applied Law
Art. 3 III 1 GG, Art. 5 I 1 GG, Art. 5 II | 1 GG, Art. 5 II | 3 GG, Art. 8 I GG, Art. 103 II GG
reaction

The VB is unfounded.

The Wunsiedel decision is a decision of the First Senate of the Federal Constitutional Court of November 4, 2009 . It is a fundamental decision on freedom of assembly , freedom of expression and sedition . An amendment to the criminal law on incitement to hatred that makes public approving, glorifying or justifying the National Socialist rule of violence and arbitrariness a punishable offense is constitutional. The Rudolf Hess memorial marches in the Franconian town of Wunsiedel remain prohibited.

Prehistory and background

Since 2001, the complainant Jürgen Rieger has registered an open-air rally on the subject of "Remembrance of Rudolf Hess " in advance, annually until 2010 .

In 2001 the assembly with an elevator was banned by the district administration as the assembly authority. This ban was initially confirmed by the Bayreuth Administrative Court in an urgent procedure , but was repealed by the Bavarian Administrative Court in the appeal proceedings . In their assessment of the ban on assemblies in the Wunsiedel district, the judges saw no danger to public safety and order that a memorial march would pose. In 2001, however, for the first time in ten years, 1,000 right-wing extremists marched through Wunsiedel, accompanied by only around 200 counter-demonstrators. In 2002 around 3,000 people took part, in 2003 around 4,000. A high point and the end of the demonstrations came in 2004 with almost 5,000 right-wing extremist demonstrators from Germany and Europe.

In March 2005 , the German Bundestag passed an amendment to the criminal law. This amendment to Section 130 of the Criminal Code (incitement to hatred) by paragraph 4 reads as follows:

A prison sentence of up to three years or a fine is punished for anyone who, publicly or in a meeting, disturbs the public peace in a manner that violates the dignity of the victims by approving, glorifying or justifying the National Socialist rule of violence and arbitrariness.

For August 2005, the ban district office of the district Wunsiedel then by decision of 29 June 2005 the event. On the other hand, the complainant brought an action before the Bayreuth Administrative Court in the main matter, which was dismissed by judgment of May 9, 2006 . The Bavarian Administrative Court also rejected the appeal against this in a judgment of March 26, 2007. The Federal Administrative Court also confirmed the ban. Against the decision of its 6th Senate of June 25, 2008 , according to which the aforementioned amendment to sedition is a " general law " which constitutionally restricts freedom of expression within the meaning of Art. 5 II | 1 GG , the rally organizer lodged a constitutional complaint with the Federal Constitutional Court . Applications for provisional legal protection were unsuccessful by all instances. From 2005 to 2009 the Federal Constitutional Court also rejected urgent motions ( Section 32  BVerfGG) that had been made against the prohibition of the rally due to weighing up the consequences.

The decision

The new paragraph on incitement to hatred intervenes in the area of protection of the basic right under Art. 5 I 1 GG that everyone is free to express and disseminate his or her opinion . It had become relevant at all because the case law on the Assembly Act ( Section 15 I VersG ) assumes a threat to public safety, among other things, if there is a threat of a violation of criminal law norms. The Federal Constitutional Court agreed with the complainant that the paragraph was a special provision, i.e. not a general law. In principle, freedom of expression can only be restricted by a general law. Nevertheless, the amendment is permissible in this case. The Basic Law can be understood as an explicit alternative to National Socialism, which justifies an exception in this case and makes it compatible with the Basic Law.

The openness of Art. 5 I, II GG to such special provisions does not, however, take back the material content of freedom of expression. National Socialist sentiments themselves are protected by freedom of expression. State intervention is only permitted "when expressions of opinion leave the purely intellectual sphere of being held to be correct and turn into violations of legal interests or recognizably into dangerous situations". The amendment to the law serves public peace.

Section 130 IV of the Criminal Codeis also in line with Article 103 II of the Basic Law, whichlinkscriminal liability to legalcertainty. The disturbance of the public peace alone, however, has to be supplemented by more concrete elements of the offense and its content has to be defined more precisely. Public peace is thento be understoodas a constituentfeature, the content of which is determined specifically from the respective normative context. In principle, the realization of the other constituent elements already establishes the criminal liability, the fulfillment of which can also be presumed to be a disturbance of the public peace (or aptitude for this). In this respect, public peace is not a constituent element that constitutes a punishable offense, but rather a “valuation formula for eliminating cases that do not appear to be punishable” (Thomas Fischer). It is thus a corrective which, in particular, allows fundamental rights assessments to be enforced in individual cases.

The marches in Wunsiedel remain prohibited.

The decision was made despite the fact that the complainant died on October 29, 2009. According to the established case law of the Federal Constitutional Court, a constitutional complaint to enforce highly personal rights in the event of death has been settled, but due to its general constitutional significance, the decision was announced anyway.

reception

The former Hamburg judge Günter Bertram criticized the decision. The amendment to the penal code is too blurred because the terms “approval”, “glorification” and “justification” could be interpreted very differently and their scope could be expanded. The decision would also contradict the wording of the Basic Law.

The Kassel lawyer and author Horst Meier also saw in the Wunsiedel decision of the Federal Constitutional Court the introduction of a special right against neo-Nazis and an attack on freedom of expression.

literature

Individual evidence

  1. ↑ Federal Constitutional Court, decision of November 4, 2009 - 1 BvR 2150/08  - in BVerfGE 124, 300
  2. ↑ BMJ: Extended criminal regulations in the fight against right-wing extremism. [Press release]. BReg, March 11, 2005, archived from the original on January 6, 2010 ; accessed on May 14, 2017 .
  3. ↑ BVerfGE 124, 300 (301)
  4. ↑ Bayreuth Administrative Court , May 9, 2006 , file number B 1 K 05.768
  5. ↑ Bavarian Administrative Court , March 26, 2007 , file number 24 B 06.1894 , paragraph 16 ff.
  6. ↑ Federal Administrative Court, June 25, 2008 , file number 6 C21 / 07
  7. ^ Federal Constitutional Court, 1st Chamber of the First Senate, decision of August 16, 2005 , file number 1 BvQ 25/05 ; Decision of August 14, 2006 , file number 1 BvQ 25/06 ; Decision of August 13, 2007 , file number 1 BvR 2075/07 ; Decision of August 13, 2008 , file number 1 BvR 2102/08 ; Decision of August 10, 2009 , file number 1 BvQ 34/09
  8. ↑ compare BVerfGE 69, 315 (352)  - " Brokdorf "
  9. ↑ Section 130 (4) of the Criminal Code is compatible with Article 5 (1) and (2) of the Basic Law. Retrieved May 14, 2017 . , Press release No. 129/2009 of the press office of the Federal Constitutional Court of November 17, 2009 on the decision of November 4, 2009 , file number 1 BvR 2150/08
  10. ↑ Thomas Fischer: Penal Code with ancillary laws . 56th edition. CH Beck, Munich 2009, ISBN 978-3-406-58083-3 , § 130 Rn. 14b .
  11. ^ Günter Bertram: Novella of sedition according to the constitution - Karlsruhe locuta, causa finita? In: New legal weekly . No. 50 , 2009, p. XII-XIV .
  12. ^ Horst Meier: Special rights against neo-Nazis? About freedom of expression and the need for consensus in Germany . In: Mercury . tape 64 , no. 733 , June 2010, ISSN  0026-0096 , p. 539–544 ( merkur-zeitschrift.de [PDF] preview of the first page).