Who has the right to offend

Federal Constitutional Court

Press release No. 23/2015 from April 28, 2015

Decision of February 26, 2015
1 BvR 1036/14

Wearing a badge labeled with the letter combination “FCK CPS” in public space is not necessarily a criminal offense against the background of the fundamental right to freedom of expression. This was decided by the 3rd Chamber of the First Senate of the Federal Constitutional Court and confirmed the constitutional standards for so-called collective insult. The conviction for libel in accordance with Section 185 of the Criminal Code (StGB) presupposes that the statement relates to a sufficiently manageable and delimited group of people; otherwise the encroachment on freedom of expression is not justified.

Facts and course of the procedure:

The complainant was found on a police patrol, wearing a badge with the letters “FCK CPS” on it. The district court sentenced the complainant for insult in accordance with Section 185 of the Criminal Code. The court justified the conviction with the fact that "FCK CPS" stands as an abbreviation for "Fuck Cops" and that this statement is a declaration of disregard because it affects and should diminish the social worth of the persons concerned in office. The appellant's appeal to the Higher Regional Court was unsuccessful.

Main considerations of the Chamber:

The challenged decisions of the local court and the higher regional court violate the complainant's fundamental right to freedom of expression under Article 5, Paragraph 1, Sentence 1 of the Basic Law.

1. The imprint "FCK CPS" is not obviously meaningless from the outset, but expresses a general rejection of the police and a need to distinguish themselves from the state regulatory authority. It is an expression of opinion within the meaning of Article 5, Paragraph 1, Sentence 1 of the Basic Law. The criminal conviction of the complainant interferes with this fundamental right.

2. The interpretation and application of criminal law is fundamentally the task of the specialized courts. In the present case, however, the district court misjudged the constitutional requirements for the application and interpretation of Section 185 of the Criminal Code as a barrier to freedom of expression in its decision by assuming a sufficient individualization of the negative value judgment.

a) A disparaging utterance that neither names specific persons nor is recognizably related to specific persons, but encompasses a collective without individual breakdown, can under certain circumstances be an attack on the personal honor of the members of the collective. The larger the collective, the weaker the personal concern of the individual member can become, because the allegations against large collectives are usually not about the individual misconduct or individual characteristics of the members, but about the unworthiness of the collective from the point of view of the speaker goes. However, it is constitutionally not permissible to treat a statement referring to members of a group in general as referring to a sufficiently manageable group of people because such a group forms a subgroup of the group of people designated according to the more general genre.

b) The judgment of the local court does not do justice to these requirements. There are insufficient statements on the circumstances that could support the assessment that the statement relates to a sufficiently manageable and delimited group of people. According to the standards set out, it is not sufficient that the local police force are a subgroup of all police officers. Rather, a personalizing assignment is required, for which nothing is evident here. It cannot be assumed that the statement to be taken from the badge has gained an objectively concretized information content solely through the encounter between the complainant and the inspecting police officer. The mere stay in public space is not sufficient according to the constitutional requirements for naming the circumstances that cause a concretization that is not recognizable from the wording of a statement.

3. Since the Higher Regional Court has considered the appeal to be obviously unfounded, its decision suffers from the same shortcomings as the judgment of the Local Court. The decisions of the local court and the higher regional court are therefore reversed and the matter is referred back to the local court for a new decision.