In the summer of 2016, a little known provision of the German criminal code received international attention when it was invoked by the Turkish government on behalf of the Turkish President Recep Tayyip Erdoğan who felt insulted by a poem written by the German satirist Jan Böhmermann. According to section 103 of the German Criminal Code, anyone who
insults a foreign head of state, or, with respect to his position, a member of a foreign government who is in Germany in his official capacity, or a head of a foreign diplomatic mission who is accredited in the Federal territory, shall be liable to a term of imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years.
An insult punishable under that provision can only be prosecuted if Germany maintains diplomatic relations with the other state, reciprocity exists, the foreign government submits a request to prosecute, and the Federal Government authorizes the prosecution. (Criminal Code, § 104a). The purpose of the provision is to protect the honor of a foreign state as represented by its head of state and other foreign dignitaries. Some scholars have argued that the norm promotes Germany’s interest in having amiable working relationships with foreign states.
General Remarks on Personal Insults in Germany
Under German law, it is generally a criminal offense to insult a person. President Erdogan himself could demand the prosecution of Jan Böhmermann according to that provision, although the Public Prosecutor will only open an investigation if it is in the “public interest”. (Criminal Code, § 194; Code of Criminal Procedure, §§ 374, 376). The crime is punishable with imprisonment not exceeding one year or a fine and, if the insult is committed by means of an assault, with imprisonment not exceeding two years or a fine. (Criminal Code, § 185). An “insult” is defined as a manifestation of disregard or contempt of another person provided that the offender is aware of the defamatory character of the statement. The criminal norm protects a person’s “honor” – though what exactly constitutes “honor” is not defined and there is no general consensus among scholars. As Shakespeare eloquently wrote in his play “Richard II”:
The purest treasure mortal times afford
Is spotless reputation; that away,
Men are but gilded loam or painted clay.
Mine honor is my life; both grow in one.
Take honor from me and my life is done.
In addition to a criminal prosecution, a person who feels insulted can also sue for libel in civil court and request a preliminary injunction. (Code of Civil Procedure, §§ 935, 940).
The honor of foreign rulers has been protected by German criminal law since the Prussian General Code of 1794 (Allgemeines Landrecht für die preußischen Staaten, ALR). The ALR provided in section 135 of the title on “Crimes Endangering the External Security of the Country (treason)” that “[w]hoever violates international law against foreign states, their rulers or their envoys, or who insults the aforementioned otherwise, will receive a punishment exceeding the one that is provided for the general crime.” Insulting a foreign ruler was classified as treason in the third degree (the least severe category).
The Prussian Criminal Code of 1851 criminalized insults against foreign heads of states but only if reciprocity existed. The insult had to be disseminated orally, in writing, in print, or through signs, pictures or other depictions and carried a prison sentence of one month to two years.
The Criminal Code of the German Empire of 1871, on which Germany’s current criminal code is based, provided that insulting a foreign ruler was punishable with a term of imprisonment of one month to two years or with confinement in a fortress for a similar period. Conditions for prosecution were reciprocity and a request to prosecute from the foreign government.
The provisions of the German criminal code criminalizing certain acts against foreign states were repealed by Law No. 11 of the Allied Control Council in 1946. They were reintroduced into the German Criminal Code with the Third Act to Amend the Criminal Code in 1953. The government’s rationale behind the reintroduction was to further “a supranational sense of solidarity to overcome the legacy of the war and to award foreign states and their leaders and symbols the same protection as domestic ones.”
This provision became known as the “Shah provision” in Germany, because it was invoked by the Shah of Iran, Mohammad Reza Pahlavi, in 1967 to prosecute Mohammad-Reza Aalam, a German-Iranian national who organized some of the student protests in Germany against the Shah. The students carried signs that read “Down with the Shah regime!” As in the recent Böhmermann case, the German Federal Government gave its consent to the prosecution and Mr. Aalam received a summons from the district court in Karlsruhe for insulting a foreign head of state. The charges were later dropped, most likely due to the pressure that 25,000 of his fellow students put on the justice system by publicly declaring that “the Shah is a murderer” and demanding that each one of them be prosecuted for insult, which would have clogged the court system for months.
The practical relevance of the provision is less frequent in present times. During the period 2007 to 2014 there have been only five convictions for crimes against foreign states.
The Erdogan Poem and Its Legal Consequences
Jan Böhmermann is a German comedian who has a regular satirical late-night TV show on German public television. In his show on March 31, 2016, he recited a profane satirical poem about the Turkish president Erdogan titled “Defamatory Criticism”. The poem was read in German and Turkish subtitles were displayed on the screen. Jan Böhmermann also remarked that he was reciting the poem as an example of something that is not covered by freedom of speech.
On April 8, 2016, the Republic of Turkey sent a letter to the German government requesting the prosecution of Jan Böhmermann for insulting President Erdogan. The German government consented to the prosecution on April 15, 2016 and the public prosecutor’s office in Mainz opened an investigation. On October 10, 2016, the Public Prosecutor declined to prosecute Böhmermann, because the investigation did not find sufficient evidence to warrant an indictment. (Code of Criminal Procedure, §170, para. 2). He said there was insufficient evidence of intent to insult because of the satirical nature of the poem.
In addition to demanding a criminal prosecution from the government, President Erdogan also sued Jan Böhmermann for libel in civil court, demanding an injunction against disseminating the poem. A preliminary injunction was partially granted by the Higher Regional Court of Hamburg on May 17, 2016 (docket no. 324 O 255/16). The Court found that the parts of the poem that are racist, sexual, or denigrate religion exceeded the limits of what is acceptable under freedom of speech and artistic freedom. The parts that satirically dealt with current Turkish political events on the other hand were considered permissible. The Court held that a head of state must endure even harsh criticism of governmental actions.
On February 10, 2017, a decision in the main proceedings was issued (docket no. 324 O 402/16) which sustained the preliminary ruling. An appeal of the decision is possible within one month after the written judgment has been delivered to the parties. (Code of Civil Procedure, §§ 511, 513, 517).
On January 27, 2017, the German government announced that it had adopted a draft act to abolish the criminal norm, because “providing representatives of foreign states with a legal protection for their honor exceeding the protection already awarded against general personal insults does not seem timely anymore.”. The amendment to the criminal code would apply from January 1, 2018.