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Germany: Law on Insulting Foreign Leaders Abolished

(July 26, 2017) On July 17, 2017, an act that abolishes the criminal law provision that made it a crime to insult a foreign head of state, 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 Germany was published in the Federal Law Gazette.  An “insult” is not defined in the Criminal Code, but the courts have interpreted it to be “a manifestation of disregard or contempt of another person provided that the offender is aware of the defamatory character of the statement.” (1 ENTSCHEIDUNGEN DES BUNDESGERICHTSHOFES IN STRAFSACHEN [BGHSt] [DECISIONS OF THE FEDERAL COURT OF JUSTICE IN CRIMINAL MATTERS] 289.) The crime of insulting a foreign leader was punishable by a term of imprisonment not exceeding three years or a fine.  (Gesetz zur Reform der Straftaten gegen ausländische Staaten [Act to Reform Crimes Against Foreign States], July 17, 2017, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 2439, BGBl. website.) The amendment of the Criminal Code repealing the provision will enter into force on January 1, 2018. (Id.)

The provision received international attention in the summer of 2016, when it was invoked by the Turkish government on behalf of the Turkish President Recep Tayyip Erdogan, who felt insulted by a poem written by the German satirist Jan Böhmermann. As a result of that incident, the German government announced in January 2017 that it would abolish the criminal provision, 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.” (Jenny Gesley, Lèse-Majesté in Germany – A Relic of a Long-Gone Era?, IN CUSTODIA LEGIS (Feb. 23, 2017); Entwurf eines Gesetzes zur Reform der Straftaten gegen ausländische Staaten [Draft Act to Reform Crimes Against Foreign States], DEUTSCHER BUNDESRAT: DRUCKSACHEN [BT-Drs.] 67/17, at 1.)

Under German law, it is generally a criminal offense to insult a person. The crime is punishable by a term of imprisonment not exceeding one year or a fine. (Strafgesetzbuch [StGB] [Criminal Code], Nov. 13, 1998, as amended, BGBl. I at 3322, § 185, GERMAN LAWS ONLINE; German Criminal Code (as last amended Oct. 10, 2013), GERMAN LAWS ONLINE (unofficial English translation.)