“Durchgeknallte” Politician can not be covered by freedom of expression, if the description as "frustrierteste woman", which no longer knows "what who is what. Love, Longing, Orgasm, Feminism, Done reason "and their designation as in this sense" crazy "

Im Zuge der AbwĂ€gung der Meinungsfreiheit gegenĂŒber dem Persönlichkeitsrecht ist zu berĂŒcksichtigen, that this case involved a deliberately written and intended as an infringement text, is not the expression of a spontaneous utterance in the context of an emotional confrontation, as it was in the case decided by the Federal Constitutional Court case "crazed prosecutor" of the case (Constitutional Court, Resolution of the 1. Chamber of the First Senate of 12. More 2009 – 1 BvR 2272/04 -, NJW 2009, S. 3016), where there is not also a criminal conviction and – herein – went to a civil injunctive. Also, there remains the defendant is at liberty, themselves – also pointed and polemical – to comment on the conduct of the complainant. The cross in the genital area contempt of the complainant by the description as "frustrierteste woman", which no longer knows "what who is what. Love, Longing, Orgasm, Feminism, Reason "and their designation as in this sense," crazy "is not contrast more with the protection of the general personality right of the complaining compatible.

Federal Constitutional Court

- 1 BvR 194/13 -

On behalf of the people

In the proceedings on the constitutional complaint

that Frau Dr. P


- Representative:
-
towards the final judgment of the Higher Regional Court of Munich from 23. October 2012 – 18 You 2334/12 Pre -

 

has 3. Chamber of the First Senate of the Federal Constitutional Court by the Vice President churchyard, the judge Masing and Judge Baer on 11. December 2013 unanimously:

The final judgment of the Higher Regional Court of Munich from 23. October 2012 – 18 You 2334/12 Pre – violated the complainant's fundamental right under Article 2 Paragraph 1 in conjunction with Article 1 Paragraph 1 of the Basic Law, as far as the Higher Regional Court dismissed the appellant to enjoin the utterance, the complainant was a "crazy woman", abwies.

The decision shall be released. The matter is remanded to the Court of Appeal.

Moreover, the constitutional complaint is not accepted for decision.

The Free State of Bavaria reimburse the complainant a third of their necessary expenses.

The value of the object of legal work for the constitutional complaint procedure is to 25.000 € (in Worten: twenty-five thousand euro) fixed.

Reasons:

I.
1

The constitutional complaint is directed against a judgment on appeal, that the complainant failed a claim for injunctive certain utterances. The complainant alleges a violation of their personal rights in general (Art. 2 Abs. 1 in conjunction with Article. 1 Abs. 1 GG).

2

1. The complainant is a former district administrator of F. and was until September 2013 Member of the Bavarian Landtag. In 2006 she demanded the resignation of the former Bavarian Prime Minister Edmund Stoiber. End 2006 they posed for the magazine company "P. A.“, the picture gallery in its issue 1/2007 published. This took the B. Ltd. & Co. KG, the defendant in the main proceedings, on the occasion, under their heading "Post by ..." on the website "www. ... "At the 3. April 2007 to publish the following text:

3

Post von ...

Love latex LandrÀtin,

im goldenen Minikleid (no panties, because it pushes through unphotogenic) "You buried your career in the P. A.“, wrote the .... In six double pages of the magazine "P. A. "You can be in Domina Poznan – with latex gloves and legs spread – photograph. The photos are classic pornography. Der Voyeur pornografische lebt in der Qual, You to tear off their clothes. No photo triggers in me the impulse of, You or to love. to whisper tender words with you. No man loves a woman in a porn movie.

On all these photos you are attracted, nothing Nude. You are the woman in between. Why not make the? Why are you not brave for your Stoiber Triumph, remained single mother? Why do you have your photo taken as?

I'll tell you: They are the frustrierteste woman, I know. Your hormones are so messed up, that you no longer know, what who is what. Love, Longing, Orgasm, Feminism, Reason.

You are a crazy woman, But do not blame your condition on us men.

Sincerely

Ihr F.J. The.

4

The complainant alleged, of this publication until the fall 2011 To have become aware. She claims further, the images are in the P. A. has not been released in this way. She looks in her general personality right violated and sought by the defendant,

5

it to say to refrain from, distribute and / or have spread

a) Frau Dr. P. is a crazy woman,

b) photos of Dr. P., in the P. A. have appeared, are classic pornography,

c) in connection with the photos of Dr. P., in the P. A. have appeared, von "Domina Posen", To speak "a porn movie" and "pornography".

6

In addition, they sought an appropriate monetary compensation in the amount of at least 5.000 €.

7

2. The District Court T. ordered the defendant to not angegriffenem judgment for injunctive relief sought, but dismissed it for monetary compensation from.

8

3. The judgment both parties appealed. With angegriffenem judgment the Court of Appeal dismissed the appeal of the appellant and changed the judgment of the district court on appeal by the defendant to the effect from, that it dismissed the action as a whole. It ordered the three disputed statements as a value judgment, leaving outweigh the freedom of the defendant in the balance.

9

4. In their constitutional complaint, the complainant alleges infringement of their personal rights in general. The contribution'll miss any objective discussion. Rather, he draw is characterized, that he attacking the complainant in a very private level with reference to their inner thoughts and their emotional life and reduce worthy.

10

5. The defendant in the main proceedings has not responded to the constitutional complaint. The Bavarian state government has refrained from an opinion. The documents in the file were submitted to the Federal Constitutional Court.

II.
11

The constitutional complaint is according to § 93a Abs. 2 Partially accepted letter b BVerfGG for decision, because this is appropriate to enforce the fundamental rights of the appellant. The conditions for the purpose of allowing appeal decision are (§ 93c Abs. 1 Sentence 1 in conjunction with § 93a Abs. 2 Letter b BVerfGG).

12

The admissible constitutional complaint within the meaning of § 93c Abs. 1 Sentence 1 BVerfGG part, clearly justified. The contested decision infringes the complainant's general right of way. 2 Abs. 1 in conjunction with Article. 1 Abs. 1 GG, insofar as they lit the utterance. a permit, the complainant was a "crazy woman".

13

1. The decision affects the scope of the general personality right of the complaining.

14

Das in Art. 2 Abs. 1 in conjunction with Article. 1 Abs. 1 GG anchored general right of personality complements the normalized in the Basic Law liberties and guarantees the closer personal sphere of life and the preservation of their basic conditions (vgl. BVerfGE 54, 148 <153>). This includes protection against utterances, suitable, be detrimental to the reputation of the person, in particular their public image, impacting (vgl. BVerfGE 114, 339 <346> m.w.N.).

15

The incriminating statements lit. a – C are suitable, reduce the social and political standing of the complainant, itself turns out as the Court of Appeal applicable.

16

2. The judgment of the Higher Regional Court of the general right of the complainant is partially injured. As far as the Court of Appeal lit the utterance. a, the complainant was a "crazy woman", not contested, himself does not consider this more in the lower courts Evaluation Framework.

17

a) The general right of personality is not unconditionally. It takes its place according to type. 2 Abs. 1 GG in the constitutional order, including the rights of others. These rights include freedom of expression under Article. 5 Abs. 1 Sentence 1 GG.

18

But freedom of expression is not guaranteed without reservation, but finds themselves in accordance with Article. 5 Abs. 2 GG to limitations in the general laws. Civil legal basis for the enforcement of the general right of personality by way of omission claim here is § 1004 Abs. 1 Sentence 2 BGB in connection with § analogous 823 BGB. The application of these constitutionally unobjectionable provisions is for the purpose competent civil courts. But they must take into account the fundamental rights concerned interpretation conductive and wear their meaning and scope statement, so that the value-setting content of fundamental rights is also maintained on the legal application level (vgl. BVerfGE 114, 339 <348> m.w.N.; stRspr).

19

Decisive for the interpretation of an utterance to determine their objective sense, from the perspective of an unbiased and intelligent audience. It is always assumed by the wording of the statement. This puts her mind but not conclusively. Rather, it's also from the linguistic context, the controversial statement and stands by the recognizable circumstances, under which it falls, certainly. The isolated view of a controversial statement is not part of the requirements of a viable sense of determination regularly meet (Constitutional Court, Resolution of the 1. Chamber of the First Senate of 12. More 2009 – 1 BvR 2272/04 -, NJW 2009, S. 3016 m.w.N.).

20

The courts have to understand the different interests affected and the extent of their impairment. The opposing positions are to be brought in respect of the specific circumstances of the individual case in a ratio, carrying them each appropriate account (vgl. BVerfGE 120, 180 <209> m.w.N.).

21

b) Measured against these standards, the Court of Appeal has the three disputed statements beanstandungsfrei initially classified as statements of opinion and not statements of fact or as abusive criticism.

22

aa) With regard to the remarks lit. b and c, the subsequent balance between the general right of the complainant and the freedom of the defendants in the lower courts Evaluation framework and the constitutional complaint holds not accepted for decision. Is a further reasons in that regard apart (§ 93d Abs. 1 Sentence 3 BVerfGG).

23

bb) Objectionable is the amount of consideration about the statement made lit. a, because the Court of Appeal the general right of the complainant attaches a weak weight.

24

If the complainant by the defendant, the omission of the statement "Dr. P. is a crazy woman "applied, so she turns against this statement as a summary of the previous paragraph, which states: "You are the woman frustrierteste, I know. Your hormones are so messed up, that you no longer know, what who is what. Love, Longing, Orgasm, Feminism, Reason. "By the word" crazy "this paragraph is summarized. The word "crazy" here has thus a fundamentally different meaning than in the case decided by the Federal Constitutional Court case "crazed prosecutor" (Constitutional Court, Resolution of the 1. Chamber of the First Senate of 12. More 2009 – 1 BvR 2272/04 -, NJW 2009, S. 3016). A simple transfer of the constitutional judgment of that case to the present case through the formal reference to the fallen in both cases, designation of a person as "crazy" differs so from the outset.

25

The Higher Regional Court overlooks the personal honor than in kind. 5 Abs. 2 GG expressly mentioned barrier, on civil matters through the § § 823 ff. BGB gesetzlich normiert ist (vgl. BVerfGE 33, 1 <17>). The defendant moves with her text, the public debate about the person of the complainant in the incriminated paragraph to purely speculative claims about the core of their personality as a private person. It is based on these assessments, thematically related to the innermost intimate area, without these speculations have any factual core. Although they are linked to the behavior of the complainant, the left posed for a magazine company and manufacture a series of photos of herself, therefore, the complainant must hereby be an argument also like to. The conclusions drawn by the defendant therefrom inferences, summarizes them with the words "crazy woman", However, as such, have no point of reference in the conduct of the complainant. The defendant seeks here rather deliberately to, to discredit the complainant not only as a public figure and because of their behavior, but her provocative and deliberately hurtful just deny any claim to respect even as a private person.

26

Given the freedom of expression can not enforce. It should be, that this case involved a deliberately written and intended as an infringement text, is not the expression of a spontaneous utterance in the context of an emotional confrontation, as it was in the case decided by the Federal Constitutional Court case "crazed prosecutor" of the case (Constitutional Court, Resolution of the 1. Chamber of the First Senate of 12. More 2009 – 1 BvR 2272/04 -, NJW 2009, S. 3016), where there is not also a criminal conviction and – herein – went to a civil injunctive. Also, there remains the defendant is at liberty, themselves – also pointed and polemical – to comment on the conduct of the complainant. The cross in the genital area contempt of the complainant by the description as "frustrierteste woman", which no longer knows "what who is what. Love, Longing, Orgasm, Feminism, Reason "and their designation as in this sense," crazy "is not contrast more with the protection of the general personality right of the complaining compatible.

27

The Court of Appeal has so far not recognized the extent of the reduction in the general personality right of the complaining and not sufficiently brought into a relationship with the opposing positions in respect of the specific circumstances of the individual case, carrying the general right of the complainant due account.

28

3. The decision is based on the identified constitutional error and is in so far. It is not excluded, that the Court of Appeal will come in again been referred to another decision in the case.

29

4. The decision on the reimbursement of necessary costs incurred by the appellant is based on § 34a Abs. 2, 3 BVerfGG.

30

5. The fixing of the object value of the legal work for the constitutional complaint procedure follows from § 37 Abs. 2 Sentence 2 in conjunction with § 14 Abs. 1 RVG. The Federal Constitutional Court is based, inter alia, on the amount in dispute in the main proceedings set.

Churchyard Each Baer

Please rate

For more information: