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I read this (to me) strange article in the Washington Post saying a German comedian would go on trial in Germany for mocking the Turkish president.

It appears from the article that it's this whole politicized case with various German and Turkish politicians taking an interest. However, the case obviously still has to pass through regular legal avenues in Germany, with a trial, etc.

Under which exact German laws could this comedian plausibly be tried and convicted?

To clarify: I'm surprised that this is even a case. I thought the only exceptions to free speech in Germany were outright racial/sociological hate-speech and Holocaust-related topics. I am looking for an elaboration on how it's legally possible in Germany to put someone on trial for mocking a political leader (something that's often celebrated in democracies with freedom of speech.)

Was this a serious case of libel or slander?

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    The article linked to the one you linked says that there is a law on the books that makes it illegal to insult a head of state - as I don't speak German that's as far as I can go.
    – Dale M ♦
    Sep 16, 2016 at 2:51
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    Related question: Why may the German government decide if Jan Böhmermann will be prosecuted?
    – unor
    Sep 16, 2016 at 8:58
  • Insulting is also an exception to freedom of speech in Germany.
    – Jan
    Sep 17, 2016 at 16:10
  • @Jan Would that be applicable here? And are you talking about libel/slander, or can it be applied to rough political satire?
    – Fiksdal
    Sep 17, 2016 at 16:23
  • @Fiksdal I’m really bad with all those legal terms. I just checked Wikipedia, and it calles libel a case of spoken defamation and slander one of written defamation. However, it also states ‘defamation must generally be false and must have been made to someone other than the person defamed.’ The German criminal code has has the offense of insulting. It is an insult if you say something derogative about somebody, no matter who the recipient. If I say ‘Fiksdal is an arsehole’, that is an insulting statement and can be prosecuted upon request of (cont.)
    – Jan
    Sep 17, 2016 at 16:30

2 Answers 2

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Section 103 of the German criminal code states:

(1) Whosoever insults a foreign head of state, or, with respect to his position, 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 the Federal territory shall be liable to imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years.

(2) If the offence was committed publicly, in a meeting or through the dissemination of written materials (section 11(3)) Section 200 shall apply. An application for publication of the conviction may also be filed by the prosecution service.

According to section 104a, the German government has to approve the prosecution (which it did)

Offences under this chapter shall only be prosecuted if the Federal Republic of Germany maintains diplomatic relations with the other state, reciprocity is guaranteed and was also guaranteed at the time of the offence, a request to prosecute by the foreign government exists, and the Federal Government authorises the prosecution.

There are a number of restrictions on speech, such as defaming the President (sect 90), insulting the state (sect. 90a), speaking against the continued existence of the Bundesrepublik, besmirching flags and state symbols of foreign states (104), disseminating writing that glorifies violence (131), etc.

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  • Is this law often applied? Or is this a rare case?
    – Fiksdal
    Sep 16, 2016 at 4:24
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    The paper Kölner Stadt-Anzeiger was fined for insulting the Shah in 1964; it was used against anti-Pinochet protesters in 1975 who called his government a "gang of murderers". Generally it is not used, and rumor is that it will be stricken from the books in 2018.
    – user6726
    Sep 16, 2016 at 4:42
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    There was a discussion a bit later about insulting the Chinese government and it was said "you can only call a current or former foreign head of state a murderer if they were rightfully convicted", and one paper observed "under that rule, nobody could call Hitler a murderer".
    – gnasher729
    Sep 16, 2016 at 12:34
  • gnasher729: To make things worse, we can't convict Hitler rightfully because he committed suicide in 1945 and procedural law allows no investigations or proceedings against dead people.
    – erebus
    Mar 23, 2020 at 18:09
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This case is a bit more complicated. As far as I recall, it started with extra3 (a satire show on NDR) airing a critical song about Erdogan. The song can be found on Youtube: https://www.youtube.com/watch?v=R2e2yHjc_mc (Closed Captions are available in English, but you need to turn them on)

Erdogan obviously didn't like being criticised, so he complained that NDR was committing an “insult of organs and representatives of foreign countries” under § 103 StGB and a regular insult under § 185 StGB.

This attempt to silence NDR obviously didn't get far because the song published by NDR was covered by freedom of press and/or the freedom to express ones opinion.

To illustrate the difference between an expression of opinion and an insult, Jan Böhmermann then wrote a Schmähgedicht (smear poem) containing both criticism and profanity which he presented in his late-night show “Neo Magazin Royale” on ZDF.

It looks like the video was deleted from Youtube, but other sites still have it: https://vimeo.com/162455052

Unfortunately, the video doesn't have closed captions, but you can find a translation of the poem here: https://lyricstranslate.com/en/schm%C3%A4hkritik-vituperative-criticism.html (I suggest that you take a look at the translation as it helps understanding why part of the poem got banned)

Erdogan tried to fight this poem under civil and penal law and at one point, he even managed to obtain a preliminary injunction from the LG Hamburg where part of the poem was banned. To make things clear for the general public, the court even published a press release which explained which parts of the poem were banned and which parts weren't banned. The press release can be found here: https://web.archive.org/web/20160518111309/http://justiz.hamburg.de/oberlandesgericht/6103290/pressemeldung-2016-05-17-olg-01/

And the attachment to the press release is here: http://justiz.hamburg.de/contentblob/6103298/6b1b7ae264e23809630af9d7716ef2fd/data/schmaehgedicht-jan-boehmermann-pdfanhang.pdf

Böhmermann's smear poem later lead to the removal of § 103 StGB from the penal code and to the addition of the word “smear poem” to the Duden.

For further reading, I recommend the following Wikipedia articles:

(THe German versions are more extensive, especially with regards to the court proceedings.)
https://en.wikipedia.org/wiki/Extra_3#Erdo%C4%9Fan_controversy
https://de.wikipedia.org/wiki/Erdowie,_Erdowo,_Erdogan
https://en.wikipedia.org/wiki/B%C3%B6hmermann_affair
https://de.wikipedia.org/wiki/Böhmermann-Affäre

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    It should also be noted, that more peaple learned of the matter because of the charges. So the effect was the opposite that Erdogan had hoped for.
    – Mark Johnson
    Mar 21, 2020 at 7:32
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    @MarkJohnson: Right, this is called the STreisand effect. en.wikipedia.org/wiki/Streisand_effect
    – erebus
    Mar 21, 2020 at 16:48

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