The Fight for Justice vs. Insult of a Judge

The freedom of expression guaranteed by constitutional law enables the expression and dissemination of one's own opinion, even in the form of criticism, without having to expect prosecution and punishment. But does it also permit accusing a judge of lying, describing her judgment as sloppy and deceitful, describing her conduct as "shabby, unlawful and conduct unbecoming of a judge", as well as demanding that the attacked judge must "be efficiently punished in order to prevent this judge from going astray"?

This question had to be addressed by the Federal Constitutional Court (BVerfG). The starting point was the conviction of the complainant on account of a service supervision complaint against a judge, after the complainant had previously been unsuccessful in civil proceedings.

This service supervision complaint contained, amongst other things, the following wording:

"Up to this point, the judgment can be regarded as deliberately or inadvertently sloppy and deceitful.
Departing from the core of judicial activity, I protest henceforth against the shabby, unlawful and conduct unbecoming of a judge behaviour of the judge … and believe that she must be efficiently punished in order to prevent this judge from going astray." (…)
"She took her place and babbled on incoherently" (…)
"(…) is not only a lie, but in view of the fact that this insidious lie is used to make me lose the case, it is base and against the law." (…)

The Regional Court (LG) Duisburg subsequently convicted the complainant in criminal proceedings for insult, and the Higher Regional Court (OLG) Düsseldorf dismissed his appeal. By doing so, the complainant saw himself aggrieved in his fundamental right to freedom of expression and therefore lodged a constitutional complaint before the Federal Constitutional Court (BVerfG).

Decision of the Court

The Federal Constitutional Court (BVerfG)Order of the BVerfG of 28.07.2014, Az.: 1 BvR 482/13ruled in favour of the complainant and found him aggrieved in his fundamental right to freedom of expression by the conviction for insult. Contrary to the view of the lower courts, the demand for appropriate punishment could not be regarded as a criminally relevant insulting criticism. Excessive and abusive criticism is not, in itself, sufficient. Rather, what is additionally required is that the substantive dispute is no longer the focus, but rather the denigration of the person.

At least if the statement falls within the scope of a service supervision complaint, is intended to bring about a review by a higher body and is based on a substantive discussion, this is, however, not the case.

In the case of ambiguous statements such as that of the complainant "(…) I believe she must be efficiently punished in order to prevent this judge from going astray", it is not permissible to proceed simply from the most serious interpretation, namely that the judge is imputed future commission of criminal offences, but rather it is required that the court first reject other possible interpretations with cogent reasons.

In particular, if, as in the present case, the circle of recipients is deliberately limited, the statements made nevertheless constitute a permissible "fight for justice", so that the statement, in the context of the requisite balancing of interests, is still protected by freedom of expression.

Conclusion

Even excessive and abusive criticism does not necessarily have to result in the satisfaction of the offence of insult. This must at least apply if the statements are connected with the assertion of one's own legal positions.