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Calibrating Liberty and Security: Federal Constitutional Court Rules on Freedom of Speech in PKK Case

Published online by Cambridge University Press:  06 March 2019

Dan Wielsch

Extract

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In a recently published decision the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court) was concerned with the basic right of free speech of PKK sympathizers. The decision draws a fine line between, on the one hand, preventative measures which aim to inhibit radical associations and, on the other hand, the protection of free speech which lies at the core of democracy. The Court's decision touches upon the debate about security triggered by the events of September 11th and Germany's proactive stance towards right-wing radicalism, characterized by the Court's present consideration of an application to ban the extreme right-wing National demokratischen Partei Deutschlands (NPD – National Democratic Party of Germany).

Type
Research Article
Information
German Law Journal , Volume 3 , Issue 6 , June 2002 , E2
Copyright
Copyright © 2002 by German Law Journal GbR 

References

(1) 1 BvR 98/97, 1 BvR 2180/98, 1 BvR 289/00.Google Scholar

(2) Sec. 20.1 Sentence 1 No. 4, Sec. 18 Sentence 2 VereinsG.Google Scholar

(3) Secs. 15.1, 14.1 VereinsG.Google Scholar

(4) 1 BvR 98/97. Published at NStZ-RR 2002, 120; DVBl. 2002, 469.Google Scholar

(5) BGHSt 42, 30.Google Scholar

(6) Article 5 [freedom of expression]Google Scholar

1 Everyone shall have the right freely to express and disseminate his opinion by speech, writing and pictures and freely to inform himself from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films are guaranteed. There shall be no censorship.Google Scholar

2 These rights are limited by the provisions of the general laws, the provisions of law for the protection of youth, and by the right to inviolability of personal honour.Google Scholar

3 Art and science, research and teaching, shall be free. Freedom of teaching shall not absolve from loyalty to the constitution.Google Scholar

(7) Sec. 93a.2 BVerfGG.Google Scholar

(8) BVerfGE 7, 198 (209).Google Scholar

(9) BVerfGE 7, 198 (208 and following).Google Scholar

(10) BVerfGE 25, 44 (58 and following).Google Scholar

(11) Unfortunately the printing in the German lawjournals reads verbatim that it is also not constitutionally objectionable when the BGH states that the offender's actions need (!) to serve as a measurable promotion of the association. Obviously the negation “not” is missing here.Google Scholar

(12) BVerfGE 25, 44 (58).Google Scholar

(13) For details of constitutional requirements on the interpretation of disputed statements, see, e.g., BVerfGE 82, 272 (282 f.); BVerfGE 93, 266 (295 f.).Google Scholar

(14) BVerwGE 55, 175 (183).Google Scholar

(15) BVerfGE 5, 85.Google Scholar

(16) BVerfGE 25, 44.Google Scholar

(17) Now, Sec. 84 StGB.Google Scholar

(18) BVerfGE 25, 44 (57).Google Scholar

(19) BGBl. I, p. 361.Google Scholar

(20) BVerfGE 49, 24 (56 f.).Google Scholar

(21) BVerfGE 33, 52 (86).Google Scholar

(22) Denninger, StV 2002, p. 97.Google Scholar