A defence lawyer in Berlin found himself on the defence after getting into a spat with a public prosecutor, thus setting off a legal spat that went all the way to Germany's top court.
The defence lawyer’s client had been accused in a case of misappropriating donation funds within a Berlin emergency help association for women. The prosecution had requested an arrest warrant for the man, whose lawyer then responded to questions by a journalist by insulting the prosecutor, according to Süddeutsche Zeitung (SZ).
The defence attorney told the journalist that the prosecutor was “mentally disturbed”, “cuckoo” as well as “repulsive, malicious and simple-minded”.
The prosecutor considered this slander and the matter found its way to the Constitutional Court which then had to decide: at what point do insults become illegal slander?
“More stringent criteria must be applied to determine the meaning and scope of freedom of expression in regards abusive criticism,” the Constitutional Court said, explaining that calling a public prosecutor “cuckoo” should not automatically be classified as slander.
A lower Berlin court had initially fined the defence lawyer €8,400 because he had insulted the prosecutor in an “exaggerated way, accusing her of negative characteristics and behaviours”, SZ reported.
But the Constitutional Court overturned this ruling, saying that courts must in the future balance freedom of expression with the personal rights of the individual who was insulted, and better explain why a remark should be considered insulting.
The Berlin court must now clearly justify why the statements by the defence lawyer should be considered insulting criticism. The court must also clarify whether the statements were “fully detached” from the court case, or whether the man had used the case as an excuse to attack the prosecutor, according to Die Zeit.
Süddeutsche Zeitung predicts that the defence lawyer will ultimately be acquitted.
The ruling has attracted attention in light of the case of comedian Jan Böhmermann, who is currently facing legal action over a satirical poem in which he said Turkish President Recep Tayyip Erdogan had sex with goats and watched child porn, among other things.
But Böhmermann’s case also involves a seldom-used German law that specifically forbids insulting foreign heads of state, and also raises the matter of artistic freedom, according to SZ.
In a separate case in southern Germany, a court decided that a lawyer had the right to call the Bavarian interior minister “a product of inbreeding”.