The former Section 103 of the German Criminal Code and The Case of Jan Böhmermann

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by Elisa Götz, Philipp Lutz, Matthäus Rothmeier and Selina Walter[1]
Abstract and introduction to the ‘Böhmermann’ case

The ‘Böhmermann case’ – or the ‘Böhmermann affair of state’ as it was to become – began in April 2016 and involved the comedian and television presenter, Jan Böhmermann, reciting a self-penned poem entitled ‘Schmähkritik[2]which was aimed at Turkey’s President, Recep Tayyip Erdoğan, grossly ridiculing and provoking him. In response to these insults, Erdoğan filed a motion for prosecution pursuant to section 185 StGB.[3]

Additionally, he sought to invoke section 103 StGB, a section dealing with defamatory insults levelled at important foreign persons such as heads of state. Section 103 StGB, which holds a far higher maximum sentence of up to five years’ imprisonment or a fine, was at that time not widely known to the public. Any prosecution pursuant to this section requires the authorisation of the German government[4], which was duly given in this case, sparking debates and enormous interest among the media.[5]
This article seeks to shed light on the relevant sections 185-187 StGB and 103, 104a StGB, considering in the process political as well as constitutional angles.

Explication of the relevant defamation sections and a detailed case summary (Sections 185-187 StGB)

Defamation is defined in three distinct sections of the StGB: 185, 186 and 187. Section 185 StGB renders all “Beleidigungen” (insults) punishable while not explicitly stating what constitutes an insult. It reads:

Insults shall be punished with imprisonment for not more than one year or a fine and, if the insult is committed by means of violence, with imprisonment for not more than two years or a fine.[6]

Consensus exists that section 185 StGB ought to protect the ‘honour’ of a person and thus an insult is generally an opinion that is supposed to intentionally tarnish and diminish the victim’s ethical or social reputation.[7]

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Section 186 StGB, on the other hand, deals not with opinions but factual statements made to a third party that could sully the victim’s reputation, whether made in writing or expressed verbally.[8]

The law explicitly states that no damage must be proven, but only the ‘Eignung’ (definite possibility) of doing so. While section 185 StGB can – in rare circumstances – also punish a true statement,[9]truth -if it can be proven – is an absolute defence to section 186 StGB.

Section 187 StGB, as the gravest of the defamation offences, requires a fact which is known to be untrue to then be relayed to a third party or ‑ with an even higher maximum penalty – to be published in writing or disseminated at an assembly, thereby besmirching the victim’s reputation or endangering his creditworthiness.

Section 103 StGB and its connections to the defamation sections 185-187 StGB

The key to comprehending the Böhmermann case is section 103 StGB and, more specifically, which conditions must be met in order for it to become applicable. Section 103 StGB is defined as follows:

(1) Whoever insults a foreign head of state, or, with respect to his position, a member of a foreign government, who is in Germany in official capacity, or a head of a foreign diplomatic mission who is accredited in the federal territory, shall be punished with imprisonment for not more than three years or a fine, in case of a slanderous insult, with imprisonment from three months to five years.

(2) If the act was committed publicly, in a meeting or through the dissemination of writings (Section 11, subsection (3)), then Section 200 shall be applicable. The public prosecutor may also file an application for publication of the conviction.[10]

1. Actus reus

The actus reus of section 103 StGB is an insult.
Section 103 does not contain its own definition but instead requires an insult in accordance with sections 185, 186 or 187 StGB.[11]

2. Protected subjects

Protected subjects are not only foreign heads of state but also members of foreign governments and the heads of diplomatic missions on German soil, if they are accredited or acting in an official capacity.
This provides protection for most foreign emissaries. In the case of a head of state being insulted, it is not necessary for the insult to be connected to the position itself, whilst members of foreign governments and heads of diplomatic missions must be insulted with regard to their political position.
Foreign heads of state and heads of diplomatic missions need not necessarily be on German soil to be protected by section 103 StGB, only other members of the foreign government are obliged to prove their presence for the purposes of section 103 StGB.

3. Permission in accordance with section 104a StGB

By virtue of the intricate nature of a separate provision protecting a foreign government official, section 104a StGB stipulates that certain requirements have to be met.
Germany, as well as the foreign state in question, must be engaged in a diplomatic relationship and protect each other’s government officials from defamation in a similar way. If this condition is met, the foreign government is required, in the event of an insult and an investigation pertaining to section 103 StGB, to request that the German government allow the prosecution. Only after this authorization has been granted is any prosecution possible.

Detailed case summary

On March 17th2016[12], a satirical video criticizing the violation of journalists’ rights and alleged persistent discrimination against Kurds in Turkey was aired on the German television show Extra 3.
As a direct consequence of this, the German ambassador in Ankara, Martin Erdmann, was summoned by the Turkish government.
The presenter and comedian, Jan Böhmermann, then recited a self-written poem in his weekly show Neo Magazin Royale on March 31st2016.
The Turkish government had instructed Erdmann to censor the satirical video[13], which was clearly protected under the freedom of speech according to Article 5 of the Grundgesetz[14].
In response, Böhmermann explained he wanted to give the Turkish government an example of obviously illegal satire, stating:

Mr. Erdoğan, but there are of course examples, that aren’t legal. On the one hand, there’s justified criticism, satire and fun, which is legal[15].
And on the other, there’s ‘abusive criticism’, which is illegal.
[…]Maybe we’ll explain it by way of a practical example[…] This would be considered illegal…

The comedian then proceeded to recite the now infamous poem which contained grossly humiliating, ridiculing and obviously untrue statements. On the following day, the management of the German broadcasting channel ZDF had already removed the video from its website, stating that it was not in accordance with its standards.[16]
On 4thof July 2016, the German government’s spokesman, Steffen Seibert, confirmed that a conversation between Chancellor Merkel and the Turkish Prime Minister, Ahmed Davutoğlu, had taken place in which Merkel admitted that the poem was intentionally abusive and/or injurious.[17]
After receiving numerous criminal complaints, the prosecution service in Mainz commenced a preliminary investigation against the comedian into a violation of section 103 StGB. Böhmermann consequently cancelled his appearance at the award show of the nationally renowned Grimme-Preis ceremony at which he was due to receive for his previous work, writing that everything he believed in was shaken up as well as apologizing for his absence and for cancelling his weekly show for the remainder of the season.[18]

On 10th April, the Turkish government filed a motion pursuant to section 104a StGB. Five days later the German government provided the requisite consent, allowing the prosecution service in Mainz to invoke section 103 StGB proceedingsand engage in an official investigation.
At the same time, somewhat ironically, the government also announced the complete removal of section 103 from the StGB.
At this point, the majority of media outlets and news broadcasters had live tickers and dozens of articles reporting on the Böhmermann case.
In the ensuing months, the media contained a great deal of debate concerning freedom of speech and the arts as well as concerns about external influences on domestic politics.

Ultimately, on 4th October 2016, the prosecution service stayed the investigation proceedings asserting that “no criminal acts could be proven with the necessary certainty” as the insults were “hyperbolic and detached from the concrete subject, so that the lack of sincerity and relation to the victim’s honour had to be apparent for every viewer thereby revealing that it was a joke or nonsense”.[19]
The comedian was, therefore, never actually charged with the offence. An appeal by the Turkish government was quickly dismissed by the chief public prosecutor in charge of the case.[20]
However, civil litigation is still ongoing: whilst the comedian did not sign a desired declaration of discontinuance, the Landgericht Hamburg (Hamburg District Court)granted the Turkish President an injunction prohibiting most parts of the poem from being repeated in public.
On 10thFebruary 2017, the Landgericht Hamburg reaffirmed the ban, although a further appeal is, at the time of writing, still possible.

Section 103 StGB – a highly disputed legal provision

As adumbrated above, the case Erdoğan vs. Böhmermann focused on a legal provision from the German criminal code which is rather dated and has almost fallen into oblivion: section 103 StGB.
The debates in relation to section 103 StGB were intensified on the 15thApril 2015 when the German Chancellor, Angela Merkel, proclaimed to the public that the German government would grant the requisite authorisation to enable a prosecution pursuant to section 104a StGB.[21]
However, she thereby alluded to the fact that the government opined, independently of these specific proceedings, that section 103 StGB was dispensable as a criminal provision for the protection of personal honour and, therefore, that the government would introduce a bill into Parliament in 2018 to repeal this particular section.[22]
On 25thJanuary 2017, German ministers decided in favour of the abolition of section 103 StGB, so that the German parliament then merely had to decide by a simple majority.[23]

This state of affairs led to two fundamental questions. Firstly, is section 103 StGB effectively a dispensable provision and, secondly, is it justifiable to criminalise certain conduct until the abolition of the corresponding legal provision when the state avowedly does not or at least no longer considers this conduct punishable?
In order to respond extensively to these questions, it is essential to comprehend why section 103 StGB exists, what aim or aims it pursues and what role it has played in the history of German criminal law to date.

Historical background of section 103 StGB

Section 103 StGB derives from the actus reusof the so-called ‘Majestätsbeleidigung’ (lèse-majesté/crimen lese maiestatis) existing at times of monarchy in Germany.[24]In the German criminal code of 1871, lèse-majesté was punishable with life imprisonment.
However, when the German Emperor, Wilhelm II, came into power, lèse-majestéitself was abolished.[25]
In essence, the third chapter of the present German criminal code entitled ‘Straftaten gegen ausländische Staaten’ (offences against foreign states), which comprises sections 102, 103, 104 and 104a StGB, originates in its entirity from sections 102 to 104 of the Reichsstrafgesetzbuch (RStGB)[26]in which it appeared under the heading ‘feindliche Handlungen gegen befreundete Staaten’ (hostile actions against allied states).

The Kontrollratsgesetz (KRG; Allied Control Council Law)[27]No. 11 subsequently abolished section 102 RStGB and the defamation of foreign sovereigns and regents pursuant to section 103 RStGB. Section 103a RStGB also included the insult of envoys in accordance with section 104 RStGB.
In 1953, the third Criminal Code Amendment Act was implemented. As a consequence of article 2, no. 12 of the Act, the third chapter of the present StGB (which had previously been the fourth chapter) essentially obtained its present form.[28]

The reintroduction of a criminal provision regulating insults directed at foreign states was highly controversial during the debates leading to the third Criminal Code Amendment Act in 1953.
An application against establishing the provision in the StGB, primaly due to the fact that there were concerns that the scope of criminal liability of section 103 StGB may, especially in respect of dictatorships, be interpreted too widely, was not able achieve the requisite majority.[29]

Legally protected interest

It is a highly-disputed matter as to which interest is actually being legally protected by section 103 StGB. With regard to this issue, three overriding views have been represented in legal literature since the RStGB came into force.

The first of these, the so-called ‘These vom Inlandschutz’ (theory concerning the protection of domestic territory), claims that section 103 StGB legally protects exclusively domestic interests.
These interests comprise the maintaining of intergovernmental peace and ensuring a minimum continuance of functioning relations to the respective foreign states.[30]Running contrary to this view is, however, the fact that the prosecution requires a request for prosecution by the foreign government.[31]

The second view is referred to as the ‘These vom Auslandsschutz’ (theory of the protection of foreign countries) which maintains that section 103 StGB legally protects exclusively foreign interests and, therefore, the dignity and honour of foreign institutions and representatives.[32]
However, this view is not sufficiently persuasive since national criminal law cannot protect foreign interests against its own citizens.[33]What additionally refutes this assertion is the fact that, pursuant to section 104a StGB, only states that have diplomatic relations with Germany are afforded protection under section 103 StGB, as well as the fact that the prosecution also depends on the authorisation of the German federal government.[34]

As a consequence of these two unsatisfactory theories, the intermediary and dominating view, the so-called ‘dualistische These’ (dualistic theory), is the most convincing.
In accordance with this theory, section 103 StGB cumulatively protects foreign interests as well as national interests.[35]

Practical relevance of section 103 StGB

From a criminological point of view, offences pursuant to sections 102 to 104 StGB fall within the category of political crime.[36]
Their practical relevance has, however, always been somewhat minor.
As such, the official police crime statistics are considerably higher than the rates of conviction and sentencing in the German Federal Ministry of Justice’s statistics.
This discrepancy could be a result of the existence of section 104a StGB and its conditions for prosecution.
In the period from 1997 to 2000, not more than one conviction annually was meted out, each one resulting in a fine.[37]

When German legal experts discuss section 103 StGB, they colloquially refer to it as the ‘Schah-Paragraf’ (Shah section) as it initially attracted a great deal of attention in 1964 when Mohammad Reza Pahlavi, the then Shah of Persia, felt libelled by a caricaturing photomontage published in a Cologne newspaper.
He instigated criminal proceedings pursuant to section 103 StGB against the newspaper employee responsible who was subsequently convicted and ordered to pay a fine.[38]In 1982, during the dictatorship of Pinochet, section 103 StGB once again played a significant role in a case relating to the question of whether the dissolution of a protest in front of the Chilean Embassy in Bonn was lawful.
In the course of this protest, the participating demonstrators diplayed a banner with the inscription ‘Mörderbande’ (gang of murderers) and, as a consequence, the Chilean ambassador felt libelled and instigated the dissolution of the protest by the police.
The Bundesverwaltungsgericht (German Federal Administrative Court) decided that the banner fulfilled the actus reusof section 103 StGB and, therefore, that the dissolution of the protest had been lawful.[39]

A further case concerned the former Swiss Federal President, Micheline Calmy-Rey, who had been libelled via the internet by a Swiss citizen living in Germany. A penalty order – which is equal to a judgment – pursuant to section 103 StGB was issued against the perpetrator and a fine of 500 Euros was imposed upon him.[40]
Since no public pronouncement of this penalty order took place, the case had not been disclosed to the public until a journalist working for a German newspaper called the “Stuttgarter Zeitung” investigated in order to unveil cases similar to the Böhmermann affair. In the course of his investigations, this journalist discovered the case concerning the former Swiss Federal President.[41]
The German prosecutor responsible for that case subsequently confirmed the penalty order. However, he made no statement regarding the libellous text the perpetrator drafted and published via the Internet, particularly as this text has already been deleted.[42]

Adhering to an inadmissible legal provision

After taking into consideration all of the above-mentioned facts and bearing in mind its infrequent application, it can be argued that section 103 StGB is essentially redundant in this day and age. Even if some lawyers opine that,[43]in accordance with international law, Germany has an obligation to protect foreign state organs therefore requiring a separate criminal provision[44], the range of sentences under section 103 StGB, which provides a custodial sentence under certain circumstances, appears inadequate and unsuitable in respect of the general framework of the range of sentences contained within the StGB.[45]
The possibility of instituting criminal proceedings in accordance with section 185 StGB also suffices for organs of foreign states in order to inhibit insults.
Thus, it is entirely comprehensible to see why the German government now deems section 103 StGB to be redundant and why it has instigated procedures for its abolition. However, the will to adhere to section 103 StGB in the Böhmermann case was not comprehensible. Numerous politicians favour this approach by stating that with a more expeditious abolition in the form of an ‘Einzelfallgesetz’ (law for only a particular, an isolated case), the grounds for Böhermann’s prosecution would be deprived.[46]This, however, denotes a contradiction to the underlying aim of criminal law which can only be ultima ratio in order to assure legal peace and the protection of certain legal interests.[47]
However, if the state has already ascertained that a certain legal provision is dispensable, the state should not wait to abolish it.

Constitutional Deliberations

Besides the aforementioned issues with 103 StGB, there are also constitutional concerns, more specifically with its being at odds with Article 5.

Article 5 GG: Freedom of expression, arts and sciences

Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance rom generally accessible sources. Freedom of the press and freedom of reporting by mean of broadcasts and films shall be guaranteed. There shall be no censorship.

These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.

Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution[48]

The overlap of freedoms granted by Article 5 GG and the restriction set upon the individual by section 103 StGB and even by sections 185-187 StGB is obvious.
To rectify this, the Bundesverfassungsgericht (German Federal Constitutional Court) uses the principle of practical concordance.
It is therefore of paramount importance for every court deciding in these cases to weigh up the different interests at hand for each individual case specifically.

The Böhmermann Case

  1. Actus reus

Böhmermann commited the actus reus of 103 StGB if he purposefully insulted a foreign head of state. However, if Böhmermann’s statements fall within the ambit of Article 5, paragraphs 1 and 3 GG, then, in accordance with the German constitution, the only possibility to be able to restrict his freedom of artistic expression would be if it encroached upon another fundamental right or freedom afforded by the constitution.[49]

If the poem was part of an artistic performance, it is protected under Article 5 paragraph 3 GG. This raises the question of what an artistic performance is. According to the Federal Constitutional Court, in order to constitute art something has to be a free creative process in which the impressions, past ventures and experiences of the artist are immediately displayed via a certain medium in a particular form of expression.[50]
It is important to note that the distinction between actual art and so-called Schmähkritik and the question as to whether the legally protected right to artistic expression is being encroached upon is actually a question of the actus reus.
If the expression in question is considered art in the eyes of the German law, then no actus reushas been committed in accordance with the Federal Constitutional Court’s interpretation. In the opinion of the Federal Constitutional Court something is either art or Schmähkritik and, if it is the latter, it is an insult.

Schmähkritik is defined as criticism that primarily seeks to defame the person at whom it is targeted.[51]
It is obvious to the viewer that Böhmermann’s poem itself was constructed in such a way so as to constitute the exact legal definition of Schmähkritik, hence the name. As the poem was just one part of an artistic performance, namely the showNeo Magazin Royal, it has to be interpreted in this context from the point of view of a ‘verständiger Dritter/Leser/Zuschauer’ (a reasonable third party/reader/viewer).[52]

As elucidated above, Böhmermann explains beforehand why he will recite the poem and continuously points out its illegality and while this alone is not sufficient to release Böhmermann of culpability, it has to be taken into account when determining the manner in which a reasonable third party would interpret the show as a whole.[53]The greater context of the show, which was aired a short time after the ‘extra 3 affair’ explained above, should also be taken into consideration. All the above factors help contribute to an answer to the question as to whether Böhmerman wanted to and actually succeeded in personally insulting President Erdoğan. An argument supporting the view that there was an intention to insult Erdoğan personally can be inferred from the excessive length of the poem and its explicit nature. On the other hand, it could be considered a testament to how far the principle of freedom of expression, which is entrenched in Article 5 GG, actually extends, having to go to such extremes to show its limits.

As one might imagine, the answer to the question of whether the actus reushas actually been committed is controversial. Some voices in legal literature contend that the actus reus has been committed but that the offence can be justified by Article 5 GG.[54]Others argue that by virtue of the numerous nuances of the case, it has to be decided by the principle of in dubio pro libertate, meaning if there is no definite insult, the court has to decide in favour of freedom.[55]

The prosecution service in Mainz cited the Federal Constitutional Court and argued that in order to determine whether the actus reus had been committed, it had to be determined whether the act was covered under the fundamental freedoms of Article 5, paragraphs 1 and 3 GG.[56]

In order to answer the question regarding whether a work of art has exceeded its boundaries, it must be analysed in two distinct steps.

First, the core meaning of the piece is analysed concerning its potential to be insulting. In the second step, the way it is presented and its context is evaluated.[57]As mentioned above, the core meaning of the poem, without considering its backdrop and presentation, is seemingly downright insulting.

From the point of view of a reasonable third-party viewer, however, the central meaning of Böhmermann’s performance was not the numerous personal insults of Erdoğan, but rather a criticism of Erdoğan’s policies and a demonstration of the laws pertaining to free speech in Germany. The essence of the poem was thus not insulting.

The second distinct step is evaluating whether the presentation of the poem in its context could indeed be insulting. The show Neo Magazine Royale is distinctly satirical and, as such, it is in its very nature to exaggerate, distort and to warp facts in order to suit its format and is thus allowed more leeway in its expression.[58]

The question then becomes whether Böhmermann’s statements can be considered insulting even in context of a satirical show. While it is not unusual for show hosts such as Böhmermann to use crass language in describing their political targets, the sheer number and severity of the insults in this case are remarkable.

Taking the wider context of Erdoğan’s actions into account, it remains questionable whether Böhmermann actually meant for the poem to be an insult, especially considering the fact that both persons and the subject at hand are matters of public interest, which, according to the Federal Constitutional Court, means that only statements uttered as part of a personal vendetta are not protected.[59]
Therefore, since Böhmermann is a journalist, albeit a satirical journalist, he has a vested interest in the criticism of Erdoğan and in journalistic freedom.

Böhmermann’s performance is thereby covered by Article 5 in accordance with established legal practice.

The prosecution service in Mainz merely raisedthe question of whether an actus reuswas committed, but did not come to a conclusion in this matter.[60]

2. Mens rea

Themens reais particularly important and controversial in a case of satire, especially considering that Böhmermann’s criminal liability hinges on the question of whether he actually meant to insult president Erdoğan personally.[61]
The prosecution service in Mainz used the argument of the missing mens rea as the basis for dismissing the case entirely.[62]
It argued that owing to the way it was presented and the obvious hyperbole used in the poem, the lack of intent to insult is evident.
This opinion does not, however, stand without challenge as some have argued that an artist should not be able to hide behind disclaimers and explanations. [63]

The Government’s decision to allow prosecution

Another constitutional aspect of section 103 StGB and its application is section 104a StGB. It stipulates that the crime shall only be prosecuted if, firstly, the foreign head of state files a request for prosecution and, secondly, if the federal German government subsequently authorizes the prosecution.[64]
This is noteworthy since it actively runs contrary to the principle of the separation of powers, more specifically, the executive and judicial powers in this case.[65]
It also undercuts the principle of legality to the effect of having the culpability of an act not only determined by law, but by a decision that is made after the act hast been committed. Angela Merkel, in her statement as head of government, not only mentioned the problematic nature of §104a, but also used it as her reasoning for authorizing the prosecution.[66]
From a constitutional point of view, this appears to be the correct decision.

Applicability of 103 StGB

With even the German Chancellor admonishing the very existence of 103 StGB, the question arises as to whether the prosecution service should have been allowed to initiate criminal investigations at all.
Was the government or even parliament not duty bound to intervene and suspend the law considering that large sections of the population, the government and numerous parliamentarians doubted its very legitimacy?
The somewhat surprising answer is that intervening would have been unconstitutional, since the law existed while the alleged crime was committed and was still valid and applicable at the time when the Turkish government filed its request for prosecution. Any attempt by the legislative branch to intervene, for example by suspending the law, would undoubtedly have contravened the principle of a state under the rule of law. More specifically, this would have been in contravention of the prohibition of regulating individual, isolated cases (Einzelfallgesetz), since it was patently obvious that this would be the only case affected.
Ultimately, any attempt to intervene in the judicial process would have raised serious constitutional concerns.

 

[1]The authors are all reading law at the Friedrich-Alexander-Universität Erlangen-Nürnberg and participated in an extracurricular advanced level legal English programme. The authors wish to thank Prof. Christoph Safferling and Dr. Kevin Pike for their assistance and for providing them with this opportunity.

[2]Schmähkritik as a German noun refers to a criticism that is not aimed at objectively judging something, but closer to a libelous defamation.

[3]One of the sections of the German criminal code (Strafgesetzbuch, StGB) pertaining to defamation. More information on this and other defamation sections below.

[4]Section 104a StGB.

[5]http://www.faz.net/aktuell/feuilleton/medien/geht-zdf-satiriker-jan-boehmermann-nicht-zum-grimme-preis-14167333.html(Last accessed on 10thMarch 2017); http://www.spiegel.de/kultur/tv/jan-boehmermann-zdf-moderator-verkuendet-tv-pause-via-facebook-a-1087591.html(Last accessed on 10thMarch 2017).

[6]Official English translation of the Bundesministerium der Justiz und für Verbraucherschutz(German Federal Ministry of Justice and Consumer Protection) http://germanlawarchive.iuscomp.org/?p=752(Last accessed on 10thMarch 2017).

[7]Fischer, §185 Rn. 3-8.

[8]Fischer, §186 Rn. 4.

[9]For example, an exaggerated revelation of someone’s embarrassing past can be insulting while being true.

[10]Official English translation of the Bundesministerium der Justiz und für Verbraucherschutz(German Federal Ministry of Justice and Consumer Protection) under http://germanlawarchive.iuscomp.org/?p=752(Last accessed on 10thMarch 2017).

[11]Fischer, §103 Rn. 2.

[12]https://www.welt.de/politik/deutschland/article153808463/Der-Mann-der-Erdogan-deutschen-Humor-erklaeren-muss.html(Last accessed on 10thMarch 2017).

[13]http://www.spiegel.de/politik/ausland/tuerkei-verlangt-offenbar-das-extra-3-video-zu-loeschen-a-1084490.html(Last accessed on 10thMarch 2017).

[14]The Grundgesetz(GG) is the German constitution and referred to hereinafter as the Basic Law.

[15]Böhmermann is relating here to the satirical video on the show Extra 3.

[16]Facebook statement on the page of the channel ZDFNeoon 1stApril 2016.

[17]Bundespressekonferenz(Federal press conference) of 4thApril 2016.

[18]Facebook statement on Böhmermann’s channel from 8th April 2016.

[19]Staatsanwaltschaft Mainz, 4.10.2016, 3113 Js 10220/16.

[20]http://www.zeit.de/news/2016-10/14/deutschland-erdogans-beschwerde-gegen-einstellung-von-boehmermann-ermittlungen-zurueckgewiesen-14124003.

[21]Fahl, Christian, NStZ 2016, S. 313 – 318 (313).

[22]Heinke, Daniel H., ZRP 2016, S. 121 – 122 (121).

[23]http://app.handelsblatt.com/politik/deutschland/nach-boehmermann-affaere-bundeskabinett-beschliesst-abschaffung-der-majestaetsbeleidigung/19303222.html?mwl=ok(Last accessed on 27thFebruary 2017).

[24]Heinke, Daniel H., ZRP 2016, S. 121 – 122 (122).

[25]http://www.mdr.de/nachrichten/politik/inland/faktencheck-beleidigungsparagraf-boehmermann-100.html(Last accessed on 2ndMarch 2017).

[26]The German criminal code which was in force from 1872 to 1953 until the publication of the third Criminal Code Amendment Act.

[27]The Allied Control Council Acts are the acts which were enacted in Germany by the four victorious powers of the Allied Control Council in order to combat National Socialism und militarism.

[28]MüKO/StGB-Kreß, Vorbemerkungen zu den §§ 102 ff., Rn. 5.

[29]MüKO/StGB-Kreß, § 103, Rn. 3.

[30]MüKO/StGB-Kreß, Vorbemerkungen zu den §§ 102 ff., Rn. 5.

[31]Leipziger Kommentar StGB-Heinrich Wilhelm Laufhütte, Vor § 102, Rn. 1.

[32]MüKO/StGB-Kreß, Vorbemerkungen zu den §§ 102 ff., Rn. 5.

[33]Kindhäuser/Neumann/Paeffgen-Wohlers/Kargl, Vorbemerkungen zu den §§ 102 ff, Rn. 2.

[34]Leipziger Kommentar StGB-Heinrich Wilhelm Laufhütte, Vor § 102, Rn. 1.

[35]Schönke/Schröder-Eser, Vorbemerkungen zu §§ 102 bis 104a, Rn. 2.

[36]MüKO/StGB-Kreß, Vorbemerkungen zu den §§ 102 ff., Rn. 17.

[37]MüKO/StGB-Kreß, Vorbemerkungen zu den §§ 102 ff., Rn. 16.

[38]http://www.spiegel.de/politik/deutschland/jan-boehmermann-das-besagt-der-paragraf-103-a-1087478.html(Last accessed on 3rdMarch 2017).

[39]BVerfG, NJW 1982, 1008.

[40]http://www.spiegel.de/politik/deutschland/jan-boehmermann-das-besagt-der-paragraf-103-a-1087478.html(Last accessed on 22ndFebruary 2017).

[41]https://www.bluewin.ch/de/news/inland/2016/4/14/ehemalige-schweizer-bundespraesidentin-uebel-beschimpft.html

(Last accessed on 22ndJune 2017).

[42]https://www.bluewin.ch/de/news/inland/2016/4/14/ehemalige-schweizer-bundespraesidentin-uebel-beschimpft.html

(Last accessed on 22ndJune 2017).

[43]Heinke, Daniel H., ZRP 2016, S. 121 – 122 (122).

[44]MüKO/StGB-Kreß, Vorbemerkungen zu den §§ 102 ff., Rn. 2.

[45]Heinke, Daniel H., ZRP 2016, S. 121 – 122 (122).

[46]Heinke, Daniel H., ZRP 2016, S. 121 – 122 (122).

[47]Heinke, Daniel H., ZRP 2016, S. 121 – 122 (122).

[48]Official English translation of the Bundesministerium der Justiz und für Verbraucherschutz(German Federal Ministry of Justice and Consumer Protection).  https://www.bundestag.de/blob/284870/ce0d03414872b427e57fccb703634dcd/basic_law-data.pdf(Last accessed on 8thMarch 2017).

[49]MüKoStGB/Kreß StGB § 103 Rn. 11.

[50]BVerfGE 30, 173.

[51]BGHSt 1,288 (289); Lenckner/Eisele in Schönke/Schröder § 185 Rn. 1.

[52]BVerfGE 93, 266 (295); BVerfGE 75, 369 (379).

[53]JuS 2016/599 Stephan Christoph; NStZ 2016, 313/314 Prof Dr Chrisitan Fahl.

[54]NStZ 2016,313 Prof. Dr. Christian Fahl; Roxin Strafrecht, AT I, 4. Aufl. 2006, § 18 Rn. 50.

[55]www.zeit.de/gesellschaft/zeitgeschehen/2016–05/jan-boehmermann-satire-ruecktritt-revisionsrecht-fischer-im-recht(Last accessed on 8thMarch 2017);LG Hamburg, Beschluss vom 17.05.2016 – 324 O 255/16.

[56]http://www2.mjv.rlp.de/icc/justiz/nav/634/broker.jsp?uMen=634b8385-d698-11d4-a73d-0050045687ab&uCon=86c6d096-9dd8-751e-6a1a-b5402e4e2711&uTem=aaaaaaaa-aaaa-aaaa-aaaa-000000000042(Last accessed on 8thMarch 2017).

[57]BVerfG, Beschluss vom 28. Juli 2014 – 1 BvR 482/13.

[58]BVerfG, Beschluß vom 03.06.1987 – 1 BvR 313/85.

[59]BVerfG, NJW 1999, 204.

[60]http://www2.mjv.rlp.de/icc/justiz/nav/634/broker.jsp?uMen=634b8385-d698-11d4-a73d-0050045687ab&uCon=86c6d096-9dd8-751e-6a1a-b5402e4e2711&uTem=aaaaaaaa-aaaa-aaaa-aaaa-000000000042(Last accesseded on 8thMarch 2017).

[61]MüKoStGB/Kreß StGB § 103 Rn. 8.

[62]http://www2.mjv.rlp.de/icc/justiz/nav/634/broker.jsp?uMen=634b8385-d698-11d4-a73d-0050045687ab&uCon=86c6d096-9dd8-751e-6a1a-b5402e4e2711&uTem=aaaaaaaa-aaaa-aaaa-aaaa-000000000042(Last accessed on 8thMarch 2017).

[63]NStZ 2016, 313, Prof. Dr. Christian Fahl.

[64]Schönke/Schröder Strafgesetzbuch 29. Auflage 2014 Rn. 1.

[65]MüKoStGB/Kreß StGB §104, Rn. 16.

[66] https://www.bundesregierung.de/Content/DE/Mitschrift/Pressekonferenzen/2016/04/2016-04-15-erklaerung-bkin.html(Last accessed on 8thMarch 2017).