HEADNOTES:

1.__Artistic freedom does not find its limits only in the basic rights of third parties. It can also come into conflict with other constitutionally protected values.

2.__Art. 5(3), first sentence, of the Basic Law [GG] does not generally preclude a penalty under § 90a(3) no. 2 of the Criminal Code [StGB] for disparaging the federal flag.

Order of the First Panel of 7 March 1990 – 1 BvR 266/86 and 913/87 –
in the proceedings of the constitutional complaints (1).... -against a) the judgement of the Regional High Court of Frankfurt am Main of 17 January 1986 - 2 Ss 124/83 -, b) the judgement of the Local Court of Giessen of 19 November 1982 - 51 Ls-7 Js 1169/82 - 1 BvR 266/86 -, (2).... - against a) the decision of the Regional High Court of Frankfurt am Main of 10 June 1987 - 5 Ss 8/84 -, b) the judgement of the Regional Court of Darmstadt of 20 September 1983 - 2 Js 10855/82 Cs - 1 Ns -, c) the judgement of the Local Court of Michelstadt of 19 April 1983 - 2 Js 10855/82 Cs - 1 BvR 913/87 -.

DECISION:

1.__The judgements of the Regional High Court of Frankfurt am Main of 17 January 1986 - 2 Ss 124/83 - and of the Local Court of Giessen of 19 November 1982 -51 Ls-7 Js 1169/82 - injured the complainant in (1) in his basic right under article 5(3), first sentence, of the Basic Law. They are reversed. The matter is referred back to the local court.

2.__The decision of the Regional High Court of Frankfurt am Main of 10 June 1987 - 5 Ss 8/84 - as well as the judgements of the Regional Court of Darmstadt of 20 September 1983 - 2 Js 10855/82 Cs -1 Ns - and the Local Court of Michelstadt of 19 April 1983 -2 Js 10855/82 Cs - injured the complainant in (2) in his basic right under article 5(3), first sentence, of the Basic Law. They are reversed. The matter is referred back to the local court.

3.__The region of Hessen has to reimburse the complainants for their necessary expenses.

EXTRACT FROM GROUNDS:

A.

The complainants object to their punishment for disparaging the federal flag. The provision of the Criminal Code [Strafgesetzbuch] upon which their conviction is based reads:

§ 90a
Disparagement of the State and its symbols

(1) A person who publicly, in an assembly, or through the dissemination of writings

1. insults or maliciously disparages the Federal Republic of Germany, one of its regional states, or its constitutional order or
2. disparages the colours, the flag, the coat of arms or the anthem of the Federal Republic of Germany or one of its regional states shall be punished by a term of imprisonment up to 3 years or with a fine.

(2) ...

(3) ...

I.

The proceeding 1 BvR 266/86

1. The complainant is the manager of a book distribution company. In the years 1981 and 1982, the company sold numerous copies of the paperback "Just Leave me in Peace"; described as a "reader", it is a compilation of anti-military prose and poetry, broken up by caricatures and collages. The front cover of the book depicts a soldier with skull and steel helmet. The back cover is illustrated with a collage, composed of two pictures, which gave rise to the criminal proceedings. The lower half of the depiction consists of a black-and-white photograph of a federal armed forces swearing-in ceremony in which soldiers are holding a spread-out federal flag. In the background, one sees barracks in front of which a podium, decorated with a federal flag, has been constructed; another soldier is standing on the podium. A flag pole with flag at full mast is located between this and the barracks. The sky above the barracks forms the background of the color photo which makes up the upper half of the collage. It shows, from the knees to the hips, a male torso clad in shirt and pants, rising like a giant, behind the roof of the barracks. The open fly of the pants is hidden by the man's right hand which is in a urinating position. Emerging from behind the hand, a yellow stream of urine makes its way across the photo montage onto the spread-out flag in the lower picture. A yellow puddle of urine is depicted on the ground underneath the flag.

The local court imposed a DM 4500 fine on the complainant.... On the question whether the complainant could rely on art.5 (3) first sentence GG, it explained as follows:

Disregarding the fact that even art is not without limit, but rather is subject to the laws, the court can find no basis for why the described illustration might portray such fundamentally protected art. It is possible that some professor might discover, according to his subjective assessment, some so-called art in this picture. However, the court is not bound by any such assessment.

The regional high court rejected the complainant's leap-frog appeal:

The collage should allegedly be regarded as a work of art because it relates the "artistic expression" of disrespect for the flag. This symbol counts among the high ranking values of the state order. A case-specific evaluation of the local court's findings reveals that the illustration exemplifies an especially bad disparagement. The federal flag, symbol of the Federal Republic of Germany and its free democratic constitutional structure, is being belittled, thereby seriously damaging the honor and reputation of the state it represents and that state's structures.

...

2. The complainant asserts an infringement of his basic rights under art.5 (3), first sentence, as well as art.2 (1) GG.

He submits: § 90a of the Criminal Code [StGB] must be interpreted in light of the significance of artistic privilege. It must be asked whether the concrete expression of artistic freedom comes into conflict with other likewise constitutionally protected principles. However, there is no provision of the Basic Law which comprehends the protection provided by § 90a of the Criminal Code [StGB]. In fact, one could consider interpreting the definition of the Federal Republic of Germany as a democratic, social, federal state ruled by law as a constitutional norm conflicting with art.5 (3) first sentence GG. The Bundesverfassungsgericht [Federal Constitutional Court] decided, however, that the limits of artistic freedom would only be drawn by other highest-ranking basic values of the constitution and that its limitation would be fixed only in the "extreme case," namely when the continued existence of the Federal Republic of Germany and its free democratic constitutional structure is endangered. The federal flag is not among the highest-ranking constitutional values.

In the constitution itself, it is referred to merely to define its colours. Its utilization in the context of a political work of art would, in any case, no signify a direct and immediate danger for the continued existence of the Federal Republic of Germany and its constitutional structure.

Besides, a correct interpretation fo the photo montage allegedly reveals that the flag of the Federal Republic of Germany was not disparaged. The satiric attack is directed against the oath-taking ceremony of the federal military, at which the federal flag is necessarily used. In the complete context of the book, Just Leave Me in Peace, it is apparent that the criticism is directed against the militarization of public life in the Federal Republic. From this point-of-view, it is questionalbe whether the photo montage even fulfills the elements of § 90a of the Criminal Code [StGB].

...

3) The Federal Minister of Justice, in the name of the federal government, and the Hessian Ministerprasident have given their opinions regarding the constitutional complaint.

a) ....

b) ....

II.

The proceedings in 1 BvR 913/87

1. The complainant was a member of the editorial staff of the magazine "Fellow Citizens! - Odenwalder Pamphlet." In its no.20 from March/April 1982, there was a report on page 8 about the Hamburg public prosecutor's search operations with the goal of seizing the book Just Leave Me in Peace. In the report, the title of the book was altered to "Just Leave Us in Peace!" because it served simultaneously as headline for an attached commentary of the author V to the governmental measures. Page 11 of the magazine bore the headline "On the Track of the Perpetrator," with the explanation: "12386. Results of the popular prize competition of our Hamburg public prosecutor's office." Shown on this page were the two photos which had made up the collage on the rear cover of the above-mentioned book. However, here they were printed so as to contact only at the left corners at a slight slant to one another.

Scissor symbols and a dotted line around the pictures invite one to cut out the pictures. The photos were assigned the following text:

Today's Motto: In order to get on the track of the perpetrator, we must get on his track.

The Assignment: Pick up scissors and paste and make a really vulgar disparagement out of the ordinary photos.

Hint: First think about what the pictures could express!.

Next to the picture of the urinating man, the following alternative interpretations were listed:

a) A picture from the series "The Little Fireman"?
b) The Honorable Senator is trying out a new aftershave?
c) An advertising photo from the booklet "This is why we need the Rhein-Main-Danube-Canal"?

Next to the photo of the oath-taking ceremony, the following possible choices were listed:

a) The federal military is practicing tea preparation in the old, stylish, househusband's manner?
b) The Honorable Bundesprasident has a new handkerchief?
c) Everything good comes from above?

After a reference to valuable prizes, the page ended with the invitation to send solutions to the "Prosecuting Attorney's Office at the Local Court of Hamburg." The local court sentenced the complainant to pay a fine of 900 marks for disparaging the state and its symbols. It explained: the pictures are related to one another so as to produce the impression that they belong together but are somewhat displaced. The picture of a man urinating on the federal flag is created thereby. In the portrayal, its form and content express an ugly, crude, and particularly hurtful disdain for the state and its symbol, the federal flag. Nothing more is acknowledged the flag than that it is "worthy" for one to relieve oneself upon. The state is thereby simultaneously put down as unworthy of the respect of the citizens. Even the guarantee of artistic freedom is inappropriate for negating the illegality of the portrayal.

....

The regional court rejected the complainant's appeal for the following reasons: by means of arranging the two pictures, conveying the event of urination on the flag, the Federal Republic is belittled in an especially insulting and offensive manner. Regardless of whether, in the imagination of the complainant, the urine was aimed at the flag or the oath-taking ceremony, a disparagement of the flag and the state is present, even if this was not the purpose of the portrayal but merely the means of achieving that purpose. The complainant's conduct was also justified neither by the basic right of free expression of opinion nor by the guarantee of artistic freedom. The basic right of free expression of opinion can not prevail because it is limited by the non-constitutional laws. It is unnecessary to decide whether the photo montage is a work of art within the meaning of art.5 (3) GG. In any case, the guarantee of artistic freedom also fails to justify any disparagement of the objects protected by § 90a of the Criminal Code [StGB]. The reputation and the dignity of the state, which are based on the constitutional structure of the Federal Republic of Germany, are among the highest-ranking constitutional values which are protected by § 90a of the Criminal Code [StGB]. The federal flag as state-symbol deserves an equally high rank.

....

2. The complainant objects to an infiringement of his basic rights under art.5 (1) second sentence GG: the criminal courts allegedly underestimated the content of these basic rights by granting the federal flag, as statutorily protected by § 90a of the Criminal Code [StGB], constitutional rank, limiting the artistic privilege of art.5 (3) GG. They misjudged the normative content of art.5 (1) GG as well. Moreover, they discernably interpreted the incriminated photo montage incorrectly. They, like the accomapnying text, are clearly directed against the oath-taking ceremony, not against the federal flag. The ceremony is not protecte by § 90a of the Criminal Code [StGB], and certainly not by the constitution.

3.

....

B.

The constitutional complaint is justified. The challenged decisions violate the complainants' basic rights under art.5 (3) first sentence GG.

I.

In cases of criminal prosecution of acts for which the complainant claims artistic freedom, the Bundesverfassungsgericht does not only consider whether the incriminated depiction of life falls within the domain of basic rights protected and whether its scope was essentially, correctly recognized in the challenged decisions; it also examines whether the court evaluated the work in light of the structural characteristics of the art itself (compare BVerfGE 30, 173 [188]), thus applying standards suitable to the work (BVerfGE 75, 369 [376], referring to BGH, NJW 1983, p.1194 [1195]), and on these principles, with limits set by the art, appropriately and individually drawn. One basis for this is that the Bundesverfassungsgericht alligned the limits of its need to intervene with the intensity with which the decision of the specialized court affects the complainant's sphere; another, on the other hand, is the special significance of the affected basic right (see BVerfGE 67,213 [223]). This should not be misunderstood to the effect that special, basic freedoms enjoy, from the outset, a higher rank than other subjective constitutional rights. Deciseive for the increased scrutiny is rather the peculiarity of the basic right being discussed. Just like the free expression of opinion, artistic activity lives off of the resonance of the public. It is obvious that collisions will occur between these basic communication rights and other constitutional values, especially the basic rights of third parties. Here it is true that finding the correct balance among the contending objects of protection through applying the non-constitutional legal norms developed therefor, is primarily the task of the special court. However, the application of the non-constitutional law here does not have insignificant repercussions on the constitutionally protected positions. Just a few mistakes in the interpretation of non-constitutional law and the interpretation of the expression or the work of art can lead to a false balancing of basic rights. Because of the serious consequences which can follow from such mistakes in the criminal trial, at least there, more intensive scrutiny by the Bundesverfassungsgericht is unavoidable (see also BVerfGE 43, 130 [137]). This is so even in view of the detrimental effect that a constitutional review, limited to the essentials, could have in the case of basic communication rights. The constitutional complaint does not merely serve to correct the concrete, individual encroachment of basic rights. Especially in the area of these basic rights, the broad effect of constitutional case law has considerable significance due to the public relevance of the protected actions (see BVerfGE 42, 143 [156] - dissenting opinion). In view of the intimidating effect governmental intervention can have here, an especially effective constitutional control must establish itself so as not to affect the substance of these expressions of reality (see BVerfGE 43, 130 [136]).

II.

Applying these evaluation criteria, the challenged decisions do not meet the constitutional requirements. In both cases, the complainants' actions fall in the area of artistic freedom protection (1). This does not, from the outset, actually stand in the way of punishment under § 90a (1) no.2 of the Criminal Code [StGB] for disparaging the federal flag because the criminal norm serves to safeguard a constitutionally protected right (2). However, the necessary balancing of conflicting constitutional values is partly omitted, it is based partly on a contextually-inappropriate understanding of the work of art concerned (3).

1. Both incriminated illustrations sufficiently meet the standards which the Bundesverfassungsgericht regards as essential for an artistic activity.

a) The portrayal on the back cover of the book Just Leave Me in Peace is a collage composed of photographs. It thereby reflects a now conventional form of art; there is no need to settle whether, and to what extent, the photographs used therefore are themselves "art" within the meaning of the guarantee of artistic freedom. Alongside these exclusively formal, typological aspects comes one of content. The work's creator makes an original statement capable of, and requiring, interpretation through the inaccurately-scaled relationship of the photographs to one another, thus through a vivid yet simultaneously unfamiliar/unusual combination of two events is life. He expressed his view of the oath-taking ceremony through free, creative invention. The collage thereby simultaneously fulfills the value-related basic requirements deployed by the Bundesverfassungsgericht in the Mephisto-decision (see BVerfGE 75, 369 [377]). The fact that the artist intends to impart a specific opinion through his work also fails to take away its protection under art. 5 (3) first sentence GG. An opinion may be expressed completely in an artistic form, as is usual in the case of politically comitted art. Art.5 (3) first sentence GG remains the controlling basic right in this case because it is the specialized norm (compare BVerfGE 30, 173 [200]; 75, 369 [377]).

b) The above applies to the artistic quality of the collage as used within the framework of the "prize competition." It changes nothing that the two photographs are printed at a slight slant to one another. That the pictures "belong together" and the way in which they "belong together" also show this method of arrangement with sufficient clarity. There is a difference from the original depicition on the book cover though, in that the collage is embeded in a satire which is directed against governmental prosecutorial measures. However, since this shares in the protection of art.5 (3) second sentence GG, it does not thereby change the constitutional classification.

c) Artistic freedom argues for the complainants although they were not creators of the respective works. The sphere of personell covered by this basic right also extends to the area of validity of the work of art (see BVerfGE 30, 173 [189]; st. Rspr.). That means that all people who perform an indispensible mediatory function between artist and public are protected by the basic rights. Those like the complainants - who play a part in marketing the work of art are also necessarily within this circle of persons.

2. Although artistic freedom is guaranteed without reservation, this does not necessarily proscribe punishment of the complainants under § 90a (1) no.2 of the Criminal Code [StGB].

a)The guarantee of art.5 (3) first sentence GG is not limited solely by the basic rights of third parties. Rather, it can collide with all kinds of constitutional provisions (see BVerfGE 30, 173 [193]; Lerche, BayVBl. 1974, p. 177 [180 f.]); this is because a well-ordered human co-existence requires not only the mutual consideration of citizens, but also a functioning governmental order, which is a prerequisite for guaranteeing the effectiveness of any basic rights protection at all. Works of art which damage the constitutionally guaranteed order are not, therefore, subject to limitation only if they directly endanger the continued existence of the state or the constitution. Rather, in all cases in which other constitutional principles conflict with the exercise of artistic freedom, a commensurate balance must be found among those oposing interests equally protected by the constitution, with the goal of their optimization (see BVerfGE 77, 240 [253]). The Bundesverfassungsgericht in an earlier decision, required a direct and present danger to the "highest-ranking basic values" of the constitution in order to overcome the guarantee of artistic freedom (see BVerfGE 33, 52 [71]). This does not mean that art.5 (3) first sentence is absolutely pre-eminent in less extreme situations. In such cases, the conflict between artistic freedom and other constitutionally protected principles will be resolved through case-specific balancing. In the process, it will, however, be taken into consideration that limitations of these unconditionally guaranteed basic rights are not justified formalistically by general objectives like, for instance, "protection of the constitution" or the "functional ability of criminal justice"; rather, those constitutionally protected principles which, according to a realistic assessment of the circumstances, will collide with the safeguarding of rights under art.5 (3) first sentence GG, must be concretely carved out, guided by particular provisions of the Basic Law (see BVerfGE 77, 240 [LS 2 and page 255]).

b) § 90a (1) no.2 of the Criminal Code [StGB], upon which punishment of the complainants rests, protects the flag of the Federal Republic of Germany as a state symbol. This protection is founded on the constitution. This follows, however, neither directly nor exclusively from art.22 GG. That article's normative content is limited to the establishment of the federal colours. Beyond that, however, this basic legal provision is significcant insofar as it assumes the right of the state to use such symbols to portray itself. It is the purpose of thse symbols to appeal to the citizens' sense of civic responsibility (Wuertenberger, JR 1979, p.311, referring to H. Krueger, Allgemeine Staatslehre, p.226). The Basic Law does not merely accept this effect which aslso stems from the flag. As a free state, the Federal Republic relies rather on the identification of its citizens with the basic values represented by the flag. The values protected in this sense are represented by the state colours, stipulated in art.22 GG. They stand for the free democratic constitutional structure.

The value of the criminal norm which conflicts with artistic freedom results from this meaning of the federal flag. The flag serves as an important integration device through the leading state goals it embodies; its disparagement can thus impair the necessary authority of the state. From this, it also follows that state symbols only enjoy constitutional protection in so far as they represent what fundamentally characterizes the Federal Republic. However, the state can not create any symbols it wishes whose protection can compete with art.5 (3) first sentence GG.

c) In the light of art.5 (3) first sentence GG, however, the protection of symbols must not lead to an immunization of the state against criticism and even against disapproval. Therefore, a balancing of the conflicting constitutional principles in the specific case is necessary.

3. The conviction of both complainants fails to satisfy these constitutional requirements.

The proceedings in 1BvR 266/86

a) The Regional High Court did correctly assign the complanants' actions to the scope of protection of artistic freedom and also sufficiently brought out the conflicting, constitutionally protected property of the criminal norm. However, it did not judge the collage on its own terms in every respect (aa); it is not impossible that this misinterpretation influenced the outcome of its balancing (bb).

aa) According to its content, the collage is to be classified as a caricature, thus, as a satiric portrayal. The method, still valid today, of interpreting such artistic creations on their own terms was shown us by the Reichsgericht (RGSt 62, 183; cf. BVerfGE 75, 369 [377]). Since it is typical of this art-form to exagerate, to distort and to defamiliarize, its legal assessment requires the distance of the "satiric guise of selected words and pictures" (RGSt, id., p.184) so that its true content can be assertained. This core-statement and the form it takes are then separated out for examination of whether they support the accusation of illegality. The standard for judging the form is different and less strict than those for judging the core of the statement because the form is defamliarization in the true sense (see Id., p.378).

The Regional High Court does not do justice to these standards because it misinterprets the core-statement of the collage. It takes the view that it "depicts the artistic formulation of the sense of disrespect for the federal flag which is expressed through the protrayal of urination on the flag" (page 9 of the printed opinion). The attack is directed towards the flag and not against those who, according to the idea inherent in the theme of the text, could misuse the flag. That this is especially valid because the flag is shown in a federal military ceremony of allegiance to the flag (Id., p.12).

These explanations would indicate that the core-statement of the depiction is disrespect for the federal flag and the state it symbolizes; the ceremony of oath to the flag, on the other hand, was mere form. Because of the theme of the book alone, but also independent therefrom, an opposite interpretation presses itself on the observer. The caricature expresses primarily an anti-militaristic, and only in this respect anti-state, tendency. It is directed against the governmental ceremony for swearing in of soldiers, and it thereby expresses disapproval, if not abhorrence, of the military service. The illustration did show a state symbol which is assigned a degrading treatment; however, neither statehood in general, nor the broader constitutional structure of the Federal Republic is attacked thereby. The state is the target of attack only insofar as it is responsible for instituting the military service and as it lends the induction of soldiers a special legitimiation through the use of its symbols. This core-statement is veiled and defamiliarized through the man who urinates on the state symbol used in the ceremony.

bb) Because the means of satiric defamiliarization enjoys greater freedom than its actual contents, the Regional High Court's misinterpretation of the caricature leads to an infringement of the constitution. The court did clearly express that the portrayal can not be taken alone, that is, independent of its core statement. Nevertheless, it is not impossible that the failure to understand the collage on its own terms had an effect on the balancing of the contending constitutional principles. It is decisive that the court might have decided differently the question of the disparagement by means of the caricature, if it had been conscious of the disguised character of the incriminated illustration.

b) The decision of the local court does not fulfil the requirements of art.5 (3) first sentence GG based alone on the fact that it, from the outset, did not classify the collage within the protected area of artistic freedom. The additional comment that even art is not withhout limit, but is subject rather to the bouns of the law, does not clear up the constitutional violation. This "alternative reason" does not even begin to draw to ones attention that the limits of the guarantee of artistic freedom are only to be determined from the constitution itself (see BVerfGE 30, 173 [193]).

1BvR 913/87
a) The regional court's decision, which was affirmed by the regional high court without substantiation, does interpret the collage on its own terms (aa); however, it underestimates the interaction between the guarantee of artisitc freedom and the constitutional principle with which it competes (bb).

aa)The regional court accurately based its judgement on the anti-military core-statement of the illustration. This is indicated in that the urine does hit the flag, even if - according to the complainant's conception - it is aimed at the oath-taking ceremony rather than at the flag; the belittlement of the flag and the state is a means for attacking the oath-taking ceremony. This is not undermined by the explanation following it. For the objective observer of the collagee, the ceremony should appear as a complex event where the flag combines the governmental system it symbolizes and the oath of allegiance in one; in the process, it is impossible to separate the message of the picture, that the urine is aimed not at the flag, but at the oath-taking ceremony, which in turn takes place around the flag as its symbolic point-of-reference. The court says nothing else thereby - and this is expressed also in the additional remarks rejecting corresponding alternative claims of the defense - than that despite the anti-military objective of the picture, the state is attacked in its roll as organizer of the ceremony, and its symbol is belittled for this purpose.

The regional court also takes into account the circumstance that the photo montage is a component of a likewise defamiliarized attack on government prosecutorial measures. It takes the point-of-view that the foreign opinion assumed is approved of and intentionally treated as one own through this type of publication. This is true even though the aim of the "prize contest" is different from that of the photo montage and this serves here as an explanation of the caricaturized facts. The publication of the collage is namely opposed not only to the means employed by the public prosecutor's office; rather, its publication, along with the accompanying text, exemplifies at the same time, an act of solidarity. The author adopts the artist's statement as his own, while not only making a laughing stock of the public prosecutor's office, but also by deliberately ensuring a wider distribution of the collage in the process.

bb) The regional court, however, does not correctly draw the limits placed on artistic freedom. It does bring out in the necessary manner the fact that the punishment of the complainant serves to safeguard constitutionally protected principles. However, in solving the conflict between competing constitutional principles, it fails to take into account the radiating effects of the guarantee of artistic freedom. This error is rooted in the fact that the court expressly described the principle protected by § 90a (1) of the Criminal Code [StGB] as superior to that of artistic freedom. This mistaken understanding leads inevitably to the protective purpose of the criminal law becoming an insurmountable limitation of artistic freedom. The court thereby obstructed, from the begining, the way to a case-by-case balancing of the competing objects of protection. It is satisfied with explaining the importance of the principle protected without carrying out the necessary balancing in view of the circumstances of the specific case.

Because it is uncertain whether the court would have arrived at the lower priority of artistic freedom under a case-specific balancing as well, the judgement is based on the constitutional infringement. This defect also affected the decision of the regional high court which failed to recognize the legal error of the regional court.

b) Although the local court did not obstruct the way for itself to a case-specific balancing, it interpretes the collage incorrectly. It regards the disrespect for the flag and the state it symbolizes as its core statement. The court explicitly denies that a militarization of the public life in the Federal Republic of Germany might be denounced. The judgement consequently suffers from the same mistake as the decision fo the regional high court in the parallel case. Here too it is not impossible that the case-specific balancing would have indicated a different result if the core-statement of the collage had been correctly understood.

Judges: Herzog, Henschel, Seidl, Grimm, Söllner, Dieterich, Kühling, Seibert.

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