HEADNOTE:

Caricatures that attack the core of personal honour protected by Article 1(1) Basic Law are not covered by the freedom of artistic activity (Article 5(3) Basic Law).

Order of the First Panel of 3 June 1987 – 1 BvR 313/85 –
in the proceedings on the constitutional complaint of Mr H.

...

DECISION:

The constitutional complaint is dismissed.

EXTRACT FROM GROUNDS:

A.

The constitutional complaint is directed against a criminal verdict of guilty of defamation (§ 185 StGB).

I.

1. The complainant published, in the magazine "konkret", several caricatures of Bavarian Minister-President Dr. h.c. Franz Josef Strauss, portraying him as a pig engaged in sexual activity. In the first of these drawings the pig is copulating with a pig dressed in judicial costume. A further caricature shows both figures of pigs - partly in pairs, partly separately - engaged in a variety of sexual activity. A third drawing shows four pigs, three of them mounting the pig in front. Here too, two of the figures of pigs bear the facial features of the Bavarian Minister-President and two are dressed in judicial robes and toque. The caption to the first drawing is: " `Satire may do anything': can Rainer Hachfeld too?" The second drawing has the caption: "Which drawing is the right one, finally, Mr Prosecutor?" The third caricature was preceded by a cut version of a letter from the complainant to the editors of "konkret", complaining that he kept on having to draw more pictures of little pigs because the Bavarian Minister-President would not give him any rest. The latter in each case demanded prosecution for defamation.

2. The local court condemned the complainant for the caricatures described, for defamation of the Bavarian Minister-President, acting as accessory private prosecutor, to a total monetary fine of one hundred days' pay, in three cases. On the complainant's appeal, the Regional Court quashed this verdict and acquitted the complainant.

The appeal on points of law against this by the Public Prosecutor's Office and the private prosecutor was successful: the Regional Appeal Court quashed the Regional Court's verdict, upheld the findings and found the complainant guilty of defamation in three cases. For a decision on the penalty and the costs of the appeals it referred the case back to another chamber of the Regional Court. In justification it stated that the view that the drawings had kept within the permissible limits of satire was incompatible with the Regional Court's finding. The first drawing was said to contain a defamation even in the core of what it said, because the civil party was provocatively to have been rendered ridiculous by the comparison with a copulating swine. It was tempting to understand the drawing to the effect that the civil party experiences a bestial pleasure in a justice system that is subservient to him. The caricatural form was also defamatory. The mere comparison with a swine brought contempt; this became still clearer when the swine was portrayed in a sexual act. The core of the statement in the case of the second drawing too was that the civil party and the justice system were associated in repulsive fashion and that the civil party experienced a special pleasure therein. This set up a clear reference to the first drawing. The caption directed at the Public Prosecutor, already engaged on investigations, emphasized this connection. The defamatory content of this drawing was still greater than that of the first.... In the case of the third drawing similarly, the core and form of the satire were defamatory. The point again expressed was that the civil party and the justice system were acting like swine; ... The complainant had also acted with intent. This was expressed even in the first drawing in the fact that he had prepared an illustration intended for publication, portraying the civil party as a swine engaged in sexual action. The second and third drawings had then been published by him with the very intention of increasing the attack on honour still further. This conduct constituted a grave attack on the civil party's honour and therefore no longer lay within "the framework of artistic freedom (see the Federal Constitutional Court's order of 17 July 1984 in NJW 1985, p.261)".

...

II.

In his constitutional complaint, the complainant

objects to infringement of his fundamental rights under Article 5(3), first sentence, and Article 103(1) Basic Law.

....

III.

On the constitutional complaint, the Bavarian Minister-President as a party to the initial case, the Federal Minister for Justice on behalf of the Federal Government and the Hamburg Judicial Authority for the Senate of the Free and Hanseatic City of Hamburg made statements.

....

B.

The constitutional complaint is admissible. The complainant has exhausted the legal remedies pursuant to § 90(2), first sentence, BVerfGG.

Certainly, the Regional Appeal Court referred the case back to the Regional Court to decide as to the sentence and the costs of the appeals. In respect of the guilty verdict against the complainant, however, the judgment is definite.

C.

The constitutional complaint is, however, unjustified. The decision challenged does not infringe either the complainant's fundamental right under Article 5(3), first sentence, Basic Law, nor his entitlement to a legal hearing guaranteed by Article 103(1) Basic Law.

I.

1. Even in proceedings in which infringement of artistic freedom is objected to it is not the Federal Constitutional Court's task to review the decisions of the special courts as to whether they are "correct" in ordinary law (BVerfGE 30, 173 [196f.]; 67, 213 [222f.]). The Court has, certainly, always set the limits to its powers of intervention according to the intensity with which the decision of the special court affects the sphere of the person convicted. It has accordingly always subjected penal sanctions for actions for which the person concerned claimed the freedom of expression of opinion or of art to strict checking. It has not been content with the otherwise usual verification (BVerfGE 18, 85 [93]) of whether the decisions challenged are based on a view of the meaning and scope of the fundamental right claimed that is in principle wrong, but also investigated the interpretation of ordinary law in detail for compatibility with the fundamental right (BVerfGE 67, 213 [223], with other references).

What has to be verified here is accordingly not only whether the complainant's drawings fall within the sphere protected by Article 5(3), first sentence, Basic Law and - if so - the Regional Appeal Court had in its decision in principle correctly delimited the area of protection of this fundamental right; it must also be considered whether the Court had assessed the portrayals on the basis of the structural characteristics specific to art (BVerfGE 30, 173 [188]), and thus applied "technically correct" criteria (BGH, NJW 1983, p.1194 [1195]), and on this basis set the limits placed on art correctly in detail.

2. The complainant's drawings are art within the meaning of the fundamental right guaranteed by Article 5(3), first sentence, Basic Law.

Despite the impossibility of defining art in general terms, the constitutional protection of this freedom requires that a protected area be defined in the practical application of the law (BVerfGE 67, 213 [225]). Laying down the basic requirements on artistic activity is accordingly not prohibited by Article 5(3), first sentence, Basic Law, but constitutionally required. What is permitted and necessary is, however, only the distinction between art and non-art; any check on standards, that is, a differentiation between "higher" or "lower", "good" or "bad" (and on that ground not deserving of protection, or less so) art would by contrast amount to a constitutionally inadmissible control of content (Scholz, in: Maunz/Dürig, Basic Law, Article 5(3), no.39).

The caricatures at issue are the formed outcome of free creative action in which the complainant brings his impressions, observations and experiences into direct display. They therefore meet the requirements the Constitutional Court has seen as essential for artistic activity (BVerfGE 67, 213 [226], referring to BVerfGE 30, 173 [189]). The fact that at the same time they express a particular opinion does not take away their quality of being a work of art. Art and the expression of opinion do not exclude each other; an opinion can - as is normal in the case of so-called committed art - very well be expressed in the form of artistic activity (Scholz, loc.cit., no.13). The decisive fundamental right in this case remains Article 5(3), first sentence, Basic Law, since the norm involved is a special one (BVerfGE 30, 173 [200]).

3. The way still valid today of giving the special position of satire and caricature a methodical treatment has already been shown by the Reichsgericht (RGSt 62, 183ff.). Since it is of the nature of this artistic genre to work with exaggerations, distortions and alienation effects, its judicial assessment requires its divestment of the "satirical garb adopted, in word and image" (RGSt loc.cit.), in order to determine its actual content. This core of statement and its dress are then separately to be checked for whether they contain an expression of contempt for the person caricatured. Account must be taken here of the fact that the criteria for assessing that dress are different and as a rule less strict than for assessing the core of the statement; for alienation is intrinsic to it.

4. In this respect, the Regional Appeal Court's decision stands up to constitutional review.

a) It captures to the area protected by Article 5(3), first sentence, Basic Law and in its assessment from the viewpoint of the criminal law adequately evaluated the characteristics that stamp this artistic genre. Admittedly, the Regional Appeals Court explicitly mentions artistic freedom at only one point in its grounds of judgment; it cannot however be concluded that it had not taken due account of the significance of this fundamental right for interpreting § 185 StBG. For it considers in detail whether the drawings keep within "the freedom allowed satire". It thereby makes clear that it was fully aware of the rank of the right guaranteed by Article 5(3), first sentence, Basic Law and its effects of delimiting the criminal offence of defamation and thus the protection of honour.

It has also applied technically appropriate criteria to the drawings. In accordance with the established tradition of the case law, it worked out the core statement and the form of the caricatures and considered them separately for their honour-injuring character. It may be acknowledged to the complainant that the grounds of judgment at first convey the impression that the Regional Appeal Court misunderstood the core statement of the first drawing. In stating that the Regional Court has failed to recognize that the core statement is defamatory because the civil party was to be provocatively rendered ridiculous by the comparison with a copulating swine, it seems to be confusing the core statement and its dress. The further grounds of judgment show, however, that the caricatures were interpreted in thoroughly technically correct fashion. Thus, the Court goes on to state correctly that the drawing expresses the fact that the civil party turned justice to his purposes "in repellent fashion", and suggested the view that he "experienced a bestial satisfaction in a justice subservient to him". This is explicitly termed by the Court the core statement of the drawing, which is given an additional calumniatory content by the nature of the form, the portrayal as a copulating swine. It attributed the same core statement to the other drawings, but rightly - as far as alienation of the statement is concerned - took from them a tendency to increase the attack on honour, lying not only in repetition but also in the modes of conduct of the swine portrayed in them and in the fact that the civil party's efforts to protect his honour were brought into ridicule.

b)The Court has also correctly determined the limits set to artistic freedom by the protection of honour. The necessary balancing of conflicting constitutionally protected interests necessary because of the tension between artistic freedom and the general right to personality of third parties had inevitably in the present case to lead to the result it found. Even taking into account the fact that for caricatures exaggerations are "structurally typical" and that persons who like the civil party are in public life are to a greater extent targets for public, including satirical, criticism, the portrayals far exceed the limits of the acceptable. They have nothing more in common with the caricatures of politicians mentioned by the complainant as examples than the fact that there too people are portrayed in the form of animals. The complainant was however concerned, by contrast with usual portrayals, not only with characterizing or exaggerating particular traits or the physiognomy of a person by choosing the form of an animal; what was plainly intended was an attack on the personal dignity of the person caricatured. It is not his human features, his personal peculiarities, that are to be brought home to the observer through the alienation chosen. Instead, the intention is to show that he has marked "bestial" characteristics and behaves accordingly. Particularly the portrayal of sexual conduct, which in man still today forms part of the core of intimate life deserving of protection, is intended to devalue the person concerned as a person, to deprive him of his dignity as a human being. The complainant is thereby condemning him in a way that a legal system that takes the dignity of man as the highest value must disapprove of.

The complainant neglects this in reproaching the Regional Appeals Court with not having weighed up the interests between artistic freedom and the civil party's personality right, but focused unilaterally on personality right at the expense of artistic freedom. The Regional Appeal Court has correctly recognized that such attacks on human dignity cannot be justified by artistic freedom. Certainly, protection of the general right of personality enjoys no general primacy over the right under Article 5(3), first sentence, Basic Law, but must also be understood in the light of this fundamental right. As long, however, as the general personality right is a direct consequence of human dignity this limitation works absolutely without the possibility of a balancing of interests. In the case of interference with this core of human dignity protected by Article 1(1) Basic Law, a severe restriction on right of personality is always present, which according to the Federal Constitutional Court's case law (BVerfGE 67, 213 [228]) is no longer covered by the freedom of artistic activity.

Insofar as the complainant appeals to the "right to a riposte" developed for the freedom of the press and of expression of opinion (BVerfGE 12, 113 [125f.]; 24, 278 [282f.]; 42, 143 [152f.]), he is already failing to see that the Bavarian Minister-President has not used in relation to him a language comparable with one of the caricatures. The fact that the person concerned is a politician, in the cross-fire of the official clash of opinion, does not divest him of his personal dignity and justify such injuries to honour, even on the appeal to the freedom of art.

II.

No infringement of the complainant's entitlement to the granting of a legal hearing can be seen.

It is admittedly disputed in ordinary law whether the Regional Appeal Court's procedure - changing the verdict from innocent to guilty and making a reference back to the Regional Court in respect of the sentence only - is admissible (see Meyer, in Löwe/Rosenberg, StPO, 23rd ed., § 354 no.44f., with other references). For the constitutional assessment of the present case, however, an answer to this question is of no importance, since the complainant's right under Article 103(1) Basic Law was not infringed thereby. Such an infringement of rights could be supposed only were it to follow from the circumstances of the case that the Court had either not taken cognizance of something the complainant had actually presented, or manifestly failed to take it into consideration in its decision (BVerfGE 22, 267 [274]; consistent case law). There are no bases for that. The Regional Appeal Court has pointed out that findings more favourable to the complainant in either the objective or the subjective sphere were certainly to be ruled out, according to the detailed taking of evidence by the local court and the Regional Court. Here it must be taken as a basis that what underlay this assessment was the whole body of facts in the preliminary courts, including the evidence orders made there. There is at any rate no indication that the review court overlooked any presentation or failed to include it in its considerations. This is true also of the evidence orders explicitly mentioned by the complainant. These were not, as Annex 1 to the record of the sitting of 11 October 1983 shows, rejected by the Regional Court because the facts whose proof was called for were no longer relevant because of the verdict of innocence; the evidence orders were instead rejected on quite different grounds, not connected with that.

Nor has the complainant mentioned any specific errors in the finding as to facts by the sequence of courts that he was prevented from objecting to by the Regional Appeal Court's procedure. Nor has he shown either what further presentation of facts not taken into account in the decision challenged was removed from him by the change in the verdict. In this respect too there is no infringement of Article 103(1) Basic Law.

Judges: Dr. Herzog, Dr. Hesse, Dr. Niemeyer, Dr. Heußner, Dr. Henschel, Dr. Seidl.

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