May a survivor of the Second World War describe the former Bavarian Minister-President Franz Josef Strauß as a “Nazi murderer” and “Hitler’s contract killer”? This question is before the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) in Karlsruhe for decision in proceedings 1 BvR 2489/24, which attorney Dr. Tobias Rudolph brought in November 2024. The case touches on fundamental questions concerning the tension between freedom of expression and the honour and dignity of the deceased. The forthcoming decision could therefore mark a milestone in the further development of the post-mortem personality right.
AI-generated illustration. Not a historical photograph.
Current developments concerning insults against politicians
In recent years, insults directed at politicians have attracted considerably more attention. Not infrequently, sharp or polemical statements have even led to searches of homes that attracted wide media coverage – for instance in the case of accused persons who described office holders as a “halfwit” (Schwachkopf) or used similarly derogatory terms. The public prosecutors’ offices are now paying increased attention to such cases, in particular where they touch on the offence of insult directed against persons in political life (§§ 185, 188 StGB).
Some years ago the legislature already extended § 188 StGB (insults against persons in political life) in order to afford public office holders and politicians better legal protection. Behind this lies the concern that the increasing brutalisation of political discourse endangers both free democratic debate and politicians’ personal sense of security. In practice, however, it is apparent that not every sharp criticism of a politician automatically gives rise to criminal liability under §§ 185, 188 StGB. What is always decisive is whether, in the individual case, the boundary to personal defamation has been crossed and the public effectiveness of the person concerned is significantly impaired.
In the proceedings before the Federal Constitutional Court, too, the core question is whether the complainant’s statements are still protected as an expression of his (pointedly formulated) opinion or whether they already constitute an impermissible infringement of the post-mortem personality right.
The sad background to the case
The complainant, now 90 years old, lived through the Second World War as a child in Romania. At the age of nine he had to watch his father being shot dead by a Wehrmacht soldier. This traumatic experience haunts him to this day. When, decades later, the complainant saw a photograph of the former Bavarian Minister-President Franz Josef Strauß in Wehrmacht uniform, he believed that he recognised in Strauß the alleged murderer of his father.
Franz Josef Strauß, Bavarian Minister-President from 1978 to 1988, had served as an officer on the Eastern Front in the Second World War. The complainant’s repeated attempts to draw the authorities’ attention to that murder and to prompt fresh investigations were unsuccessful. To this day, his father’s death has not been cleared up.
The contested e-mails
In 2022 and 2023 the complainant sent several e-mails to the Bavarian Minister-President Markus Söder and to other members of the government. In them he denounced the inadequate examination of the Nazi past and the lack of recognition of his own painful experiences. The e-mails were in part very harshly worded and contained, among other things, the following passages:
E-mail of 23 October 2022:
“Hey Mr Söder,
[…] Your contempt for humanity and your arrogance towards migrants who were bought up by the Federal Republic in order to be exploited here as slaves are appalling, but for an admirer of Nazi murderers such as Franz Josef Strauß, the alleged murderer of my father, nothing new. […]”
E-mail of 26 December 2022:
“To the inhumane offspring of the Nazi murderers and most dreadful barbarians of the last century.
This year I spent my 79th Christmas Eve without my father, who was murdered by Nazi criminals around F.J. Strauß, carried off and buried somewhere like an animal. The barbarians shot me down as well and left me lying there bleeding. When the German bullet hit me I was nine and a half years old.
It was my first encounter with Germans, and it has imprinted itself on my memory for ever. I later recognised the murderer in a photograph. It was the young Nazi officer F.J. Strauß, later Bavarian Minister-President and Söder’s mentor. […]”
E-mail of 10 January 2023:
“Instead of rushing from one party to the next, you would do better to take the time to answer my letters, as is customary in civilised countries. Or is that too much to ask of the offspring of the Nazi murderers?
You do not do it because you have something to hide, because you do not want to give up your admiration for the Nazi murderer F.J. Strauß and because you are shaking with fear that someone will get wise to you. […]”
E-mail of 25 January 2023:
“Hello Mr Söder,
That you have still not answered a single one of my letters, for racist and nationalist reasons, underlines your lack of culture and your contempt for humanity. No wonder, since your mentor was the Nazi murderer and Hitler’s contract killer F.J. Strauß.
While my father’s murderer was in captivity only for a short time, I and many of my compatriots had to perform three years of forced labour, and that because the German barbarians had stigmatised us as Germans, as Germans which we never were. […]”
The criminal conviction
The family of Franz Josef Strauß saw in these statements a serious infringement of their father’s post-mortem personality right and filed a criminal complaint (Strafantrag) for defamation of the memory of the deceased (§ 189 StGB). The Bavarian courts sentenced the complainant to a fine. Their reasoning: the descriptions “Nazi murderer” and “Hitler’s contract killer” were untrue statements of fact which were capable of significantly impairing the memory of Franz Josef Strauß.
The constitutional complaint
Before the Federal Constitutional Court the complainant is represented by attorney Dr. Tobias Rudolph. The complaint asserts that the criminal conviction violates the fundamental right to freedom of expression (Art. 5(1) GG). In Dr. Rudolph’s view, the lower courts underestimated the weight of freedom of expression and attached inappropriately great weight to Franz Josef Strauß’s post-mortem personality right.
Above all, the central question is whether the contested e-mail passages really are statements of fact or rather value judgements which are protected by the fundamental right to freedom of expression. In the complainant’s submission, his personal experience of war and the trauma he suffered must be given appropriate consideration in the legal assessment.
At the same time, the complaint accuses the courts of not having sufficiently included in their balancing exercise the historical and personal context which shaped the statements. These particular circumstances – the complainant’s traumatic childhood, the fate of his father, which remains unresolved to this day, and the role of the Wehrmacht in the Second World War – ought to have played a greater role in the judgment.
Dr. Rudolph argues that what is at stake is not merely a personal injustice, but fundamental questions: how far may freedom of expression extend where a person is suspected of having been affected by Nazi crimes? And to what extent does the memory of the deceased enjoy protection where critical or even polemical statements are bound up with a specific personal experience of life?
Constitutional background to freedom of expression
Freedom of expression is fundamental to a living democracy. It permits statements to be made even where they are uncomfortable, provocative or polemical. However, it reaches its limits in particular where other legally protected interests (e.g. the personality right or public security) are at stake.
Distinguishing between statements of fact and value judgements
- Statements of fact can be examined for their truth content by means of evidence. Untrue statements of fact which damage a person’s reputation are not protected by Art. 5(1) GG.
- Value judgements are regarded as subjective expressions of opinion and are in principle covered by the Basic Law even where they are sharply or polemically worded.
The post-mortem personality right
Deceased persons no longer enjoy fundamental-rights protection of their own. Their reputation is, however, protected by the post-mortem personality right, which can be asserted by their relatives. This protection is nevertheless weaker than that of the living and must be balanced against freedom of expression in every individual case.
Possible effects of the decision
The Federal Constitutional Court could set important cornerstones here:
- Criteria for balancing the post-mortem personality right against freedom of expression
The court could work out when and how the honour of a deceased person must yield to the interest in public discussion – for example about historical guilt and responsibility. - Consideration of personal affectedness and of historical background
Particularly in cases in which traumatic experiences or war crimes play a role, there is a need for clear guidelines: how strongly should the individual context feed into the legal assessment? - Clarification of how to deal with critical or provocative statements
A decision in the complainant’s favour could widen the limits of freedom of expression and clarify which forms of sharp criticism of historical figures are permissible in principle.
Whether, when and how the Federal Constitutional Court will decide is open. In constitutional proceedings, months or years may pass before a judgment is handed down.
Outlook: insults against politicians and the significance of § 188 StGB
The present case does not, admittedly, have § 188 StGB directly as its subject matter. In the wider field surrounding the personality right, however, and precisely in the political context, a marked tightening of the legal position can be observed. § 188 StGB is an aggravated offence by means of which insults against persons in public life (e.g. politicians) can be punished more severely where they are capable of significantly impeding their public activity.
Even though the case here concerns a deceased politician and the criminal provisions against defamation of the memory of the deceased (§ 189 StGB) were applied, the discussion as a whole is moving into an area of tension: the need to protect political office holders and their work meets the fundamental right to freedom of expression and the necessity of an open culture of debate which may also be critical or polemical.