90 BVerfGE 255 (1994)
This constitutional complaint challenges a fine imposed upon and upheld against the petitioner for libel. The petitioner's brother was in prison. In an earlier letter to his sister the brother expressed his miserable state due to his treatment in prison. The sister feared that her brother might attempt suicide and wrote him a letter back of which the following is an excerpt: Also do not forget that you nearly exclusively deal with cretins who long for promotion or are plainly perverts. Think about the guards in concentration camps and you know what kind of a human group surrounds you. Try [with the aid of these thoughts] to maintain your positive approach to life and your merry nature which you usually have. The letter was read by officers in the prison as part of the routine checks of incoming and outgoing mail. Because the brother was just being moved between two prisons, two prisons filed a suit against the sister for libel.
A trial court in Ansbach sentenced the petitioner to pay a fine for libel. The District Court in Ansbach affirmed. The High Court of Appeals in Bavaria reversed and remanded the case to the District Court in Ansbach. The District Court reinstated the earlier fine. The High Court of Appeals in Bavaria reversed and remanded the case to the District Court in Nuremberg. The District Court reinstated the earlier fine. The third appeal to the High Court of Appeals in Bavaria was unsuccessful.
The petitioner then filed a constitutional complaint. She argued that the decisions above upholding the fine against her for libel violate her basic rights from Articles 2.1., 3.1., 5.1., 6.1., 10.1., and 14.1. of the Basic Law. She argued that for her there was no way to communicate with her brother in privacy because an officer was present at every visit and all written communication was being read by prison officers. She contended that free expressions of opinion to close family members must take precedence over the right of officers in the prison to have their honor protected.
The Bavarian Ministry of Justice submitted a statement in which it supports the courts' in imposing a fine upon the petitioner.
Does the right to privacy of the petitioner override the right of the officers in prison to have their honor protected?
Holding by the First Senate:
Yes, it does.
The constitutional complaint is justified.
The challenged [court] decisions violate the petitioner's basic right to freedom of expression (Article 5.1. of the Basic Law) in relation with the general right to personality (Article 2.1. in relation with Article 1.1. of the Basic Law).
1. The petitioner has been punished for a statement. The constitutional standards for the [review] of statements and the permissibility of limitations derive from the basic right to freedom of expression. Because the statement was made within the private sphere protected by Article 2.1. in relation with Article 1.1. of the Basic Law, the basic right [to privacy has to be added to the discussion].
2. The statement of the petitioner enjoys, [in its role] as a value judgment, the protection of the freedom of expression, without the justification or the groundlessness [of the statement] being relevant (*). However, the freedom of expression is subject to the boundaries that derive from the regulations for the protection of the personal honor. [Among these regulations] is Section 185 of the Criminal Code on which the conviction was based. When interpreting and applying this regulation [one] must, however, take into account the importance and scope of Article 5.1. of the Basic Law (*). This requires [one to conduct], within the framework of ordinary law, a case-related balancing between the limited basic right and the legal value which the law limiting a basic right serves. In doing this [balancing], at least in cases of heavy and unjustified insults in the private sphere, the protection of the honor regularly claims precedence over the freedom of expression (*).
3. However, this balancing rule does not hold without exception. It rests upon the unarticulated prerequisite that the insulting statement is being made to the affected person or third persons and unfolds its degrading effect. This prerequisite is not present when the statement happens within a sphere which is protected from the perception of the affected person or third person.
Such a sphere is being [created] by the general right to personality. Article 2.1. of the Basic Law guarantees the free development of the personality. Among the conditions [necessary] for the development of the personality belongs that the individual has a sphere in which he remains unobserved and on his own, or, [in which] he can interact with people of his particular trust without consideration of social behavioral expectations and without the fear of sanctions by the state. From the importance of such a possibility to retreat for the development of the personality it follows, that the protection of Article 2.1. of the Basic Law, in relation with Article 1.1. of the Basic Law, also encompasses the private sphere (*).
The protection of the private sphere [also includes] intimate communication. Especially with respect to statements towards family members and confidants, the aspect of the articulation of an opinion and thereby the attempted influencing of the set of opinions of third persons often stands less in the foreground than the aspect of self-development (Selbstentfaltung). Only under the circumstances of particular confidentiality, a complete expression of his emotions, the revelation of confidential desires or fears, the frank articulation of the own judgment on circumstances and persons, or a relieving self-portrayal is possible for the individual. Under such circumstances it may come to statements of such content or form (Auesserungsinhalten oder -formen) which the individual would not permit himself facing outsiders or in the public. Nevertheless, [statements of such a kind] deserve, as an expression of personality and as a condition of its free development, the protection of a basic right.
However, the confidential communication does not exhaust itself in such statements aimed at self-development. Statements in the private sphere or in the closest family circle not only serve to give the own feelings unobscured expression or [to find liberating relief for one's frustrations. Such statements] may also refer to family members or other confidential persons and offer aid or relief to them in a crisis of the personality or in threats to the existence and thereby contribute to the spiritual stabilization or the ability to be socially integrated (*). Also under such circumstances it may come to statements of such content or form which would be avoided in regular situations, but [which] nevertheless deserve the protection of basic rights of Article 2.1. of the Basic Law in relation with Article 1.1. of the Basic Law.
[Court holdings] and literature on criminal law account for this in that they grant, in cases of statements violating the honor of non-present third persons [made] in very close circles of life, a sphere [in which no libel is possible] (beleidigungsfreie Sphaere), when the statement is expression of the particular trust and no justified possibility of it's passing on exists (*)...
In contrast to the assumption [of the courts below], the protection of the sphere of confidentiality is not lost when the state obtained for itself knowledge of statements made in confidentiality. This also holds for the control of letters of convicts pursuant Sections 29.3. and 31 of the Penal Execution Law. It is true that the monitoring [of convicts' mail] is, as a matter of principle, constitutionally permissible for the protection of other significant legal values. [The monitoring] is aimed at averting dangers to the aim of the execution of the punishment and the safety and order of the penal institution as well as preventing the blurring of committed and the doing of new offenses. It is also unavoidable that the officer [of the penal institution], in the course of such monitoring, gains knowledge of the entire content of the monitored piece of writing. The gaining of the knowledge of the statement does not alter anything [with respect] to the belonging [of the statement] to the private sphere protected by basic rights. It is true that by means of the authority to monitor [the private sphere] can regularly be broken into, however, [the authority to monitor cannot] be used to redefine [the private sphere] into a public sphere. On the contrary, the protection of the basic right is instrumental particularly therein, that the confidential character of the [statement] is kept despite the monitoring by the state. [The confidential character] is not already lost just because the author knows of the monitoring of the letter (*).
Something else only holds if the [person expressing an opinion] himself does away with the confidentiality so that the opportunity of third persons to perceive his statements can be attributed to him and were not brought into existence just by the intervention of the state. This can for instance be the case if the [person expressing an opinion] does not take sufficient care [to prevent] the gaining of knowledge by third persons or if he chooses means of transmission which are subject to monitoring despite [the fact] that he could have established unmonitored contact. This is particularly the case if a statement to a person of confidence is solely used to hurt the [person doing the monitoring] or through him some third person. However, [in order to find such a case, one] needs to establish factual circumstances which can justify such a suspicion.
The principles developed [above] hold independent of the fact whether [the statements] enter the penal institution or leave it. Similarly, it does not matter whether the author or recipient serves a final sentence or is detained while awaiting trial. Finally, the circle of potential persons of confidence is not limited to spouses (*) or parents (*). Especially the elaboration [in the decision referring to parents] show, that, from the function of the protection of the personality [a command derives] to transfer [the protection] to similarly close relations.
4. Reviewed [with the principles developed above] the challenged decisions do no survive a constitutional review.
From a constitutional perspective it is not to be objected, that the [courts below] saw in the letter of the petitioner a serious and factually totally unfounded insult of the officers [in the penal institutions the petitioner's brother was detained in]. The sentencing, however, rests upon the assumption of the [courts below] that the monitoring of the letters does away with the confidentiality of the statement because the author must be aware, due to the monitoring, that his statement will gain the knowledge of third persons. This is irreconcilable with the protection of the basic right to a private sphere from Article 2.1. in relation with Article 1.1. of the Basic Law which supplements the right to freedom of opinion. Ascertainments, according to which the confidentiality of the statement [of the petitioner] had not been done away with just by the state's monitoring of letters but already by the petitioner herself, have not been made by the [courts below]. The ascertained facts also do not give an occasion for such an assumption.
Because already the assessment of the letter as an insult deserving of criminal punishment has to be objected [from a constitutional perspective], it is not necessary to test whether also the use of the letter in the criminal trial violated basic rights of the petitioner.
[Signed by all eight Judges.]
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