Urteil des BVerfG vom 14.03.2017

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Gericht

Bundesverfassungsgericht

Aktenzeichen

2 BvR 1072/01

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14.03.2017

Schlagworte

Are , Freiheit , Report , See , Public relations , General , Who , Provision , Same , Evaluation

BVerfG: are, freiheit, report, see, public relations, general, who, provision, same, evaluation

Entscheidungen

Office for the Protection of the Constitution report case

HEADNOTES:

Order of the First Senate of 24 May 2005

– 1 BvR 1072/01

1. Where the report of the Office for the Protection of the Constitution of a Land (state) refers to a suspicion that a

press publishing house has shown tendencies hostile to the constitution, this is equivalent to an encroachment

on the freedom of the press and must therefore be justified by a general statute in the meaning of Article 5.2 of

the Basic Law (Grundgesetz – GG). § 15.2 of the Act on the Protection of the Constitution in North-

Rhine/Westphalia (Gesetz über den Verfassungsschutz in Nordrhein-Westfalen) is such a statute.

2. On the constitutional requirements for the substantiation of a suspicion of tendencies hostile to the constitution

on the part of a press publishing house.

Order of the First Senate

of 24 May 2005 – 1 BvR 1072/01 –

in the proceedings on the constitutional complaint of

Junge Freiheit GmbH & Co., represented by the managing director –

- authorised representative:

the attorney … –

against

the order of the Higher Administrative Court (Oberverwaltungsgericht) for the Land

North-Rhine/Westphalia of 22 May 2001 – 5 A 2055/97 –,

the judgment of Düsseldorf Administrative Court (Verwaltungsgericht) of 14 February

1997 – 1 K 9318/96 –,

the reports of the Office for the Protection of the Constitution of the Land North-

Rhine/Westphalia for the years 1994 and 1995.

RULING:

1. The order of the Higher Administrative Court for the Land North-Rhine/Westphalia of 22 May 2001 – 5 A

2055/97 – and the judgment of Düsseldorf Administrative Court of 14 February 1997 – 1 K 9318/96 – violate the

complainant’s fundamental right under Article 5.1 sentence 2 of the Basic Law. The decisions are reversed.

The matter is referred back to Düsseldorf Administrative Court.

2. The Land North-Rhine/Westphalia is ordered to reimburse the complainant its necessary expenses.

GROUNDS:

1. The complainant, whose seat is in Berlin, publishes the weekly newspaper Junge Freiheit. The Ministry of the

Interior of the Land North-Rhine/Westphalia publishes annual reports of the Office for the Protection of the Constitution

to inform the public. The legal basis for this is § 15.2 of the Act on the Protection of the Constitution in North-

Rhine/Westphalia (Gesetz über den Verfassungsschutz in Nordrhein-Westfalen, Verfassungsschutzgesetz Nordrhein-

Westfalen – VSG NRW – NRW Protection of the Constitution Act) as amended by the Act of 18 December 2002

(North-Rhine/Westphalia Legal Gazette (Gesetz- und Verordnungsblatt Nordrhein-Westfalen – GV NRW) 2003 p. 2),

which reads as follows:

The authority for the protection of the constitution may, under § 3.1, publish information, in

particular reports of the Office for the Protection of the Constitution, for the purpose of

informing the public on tendencies and activities, but it may publish personal data only if

disclosure is necessary for the understanding of the context or the presentation of

organisations and the interests of the general public outweighs the interests warranting

protection of the person affected.

§ 3.1 of the Act on the Protection of the Constitution in North-Rhine/Westphalia, to which reference is made, reads

as follows:

The function of the authority for the protection of the constitution is the collection and

evaluation of information, in particular of factual and personal information, news and

documents concerning

1. tendencies that are directed against the free democratic fundamental order, the existence or

the security of the Federal Government or the government of a Land or whose aim is an

unlawful interference with constitutional bodies of the Federal Government or of a Land or of

their members in carrying out their duties,

2. to 4. …,

in the area of application of the Basic Law, to the extent that there are factual indications

supporting the suspicion of such tendencies and activities.

Subsection 3 of § 3 of the NRW Protection of the Constitution Act contains a definition:

In the meaning of this Act

a) and b)...,

c) tendencies against the free democratic fundamental order means such politically

determined, goal-directed and purposeful practices in or for an association of persons as has

the purpose of removing or invalidating one of the constitutional principles named in

subsection 4.

A person who strongly supports an association of persons in its tendencies acts for that

association of persons. Practices of individuals who are not acting in or for an association of

persons are tendencies in the meaning of this Act if they are directed towards the use of force

or by reason of their mode of operation are capable of causing substantial damage to an

interest protected by this statute.

2. In the reports on the years 1994 and 1995, Junge Freiheit – in a similar way as in the following years too – was

dealt with in detail as part of the reporting on extremist right-wing tendencies. The contributions published in it, in the

estimation of the Land, contained indications supporting the suspicion of tendencies hostile to the constitution. It was

published in 1994 under the heading “right-wing extremism” in the sub-category “right-wing publications, publishing

houses, distributors, media” and in 1995 under the heading “right-wing extremist organisations, groupings and

tendencies”.

a) In the report of the Office for the Protection of the Constitution for the year 1994, extracts of articles from Junge

Freiheit in the following subject areas are quoted and analysed:

– Nationalist- and racist-motivated xenophobia / tendencies against fundamental rights of

equality – disregard for human dignity;

– Anti-parliamentarianism / tendencies against parliamentary democracy;

– Lack of distance to Nazi rule / minimising and relativising Nazi crimes – justification of

National Socialism;

– Strategic statements / strategic demands.

In addition, the report contains an assessment of the New Right (Neue Rechte) movement, whose thought, it states,

is propagated in Junge Freiheit. Inter alia, the report states:

The North-Rhine/Westphalia Office for the Protection of the Constitution has assessed the

editions of Junge Freiheit that have appeared to date, in particular those of the year 1994, and

this assessment has found a large number of factual indications supporting the suspicion of

extremist right-wing tendencies. Consistently and strikingly, Junge Freiheit is permeated with

articles in which the authors promote political viewpoints or make claims that are not

consistent with fundamental principles of the free democratic fundamental order, in particular

not consistent with respect for the human rights put into concrete terms in the Basic Law and

the principle of the responsibility of the government to parliament.

b) In the report of the Office for the Protection of the Constitution for the year 1995, it is emphasised that the North-

Rhine/Westphalia Office for the Protection of the Constitution is not at present employing any means of intelligence in

the observation of Junge Freiheit. In the case of Junge Freiheit, it is stated, observation means that the newspaper is

read and assessed and the results of this assessment are published. In order to document continuing factual

indications supporting the suspicion of extremist right-wing tendencies, articles from Junge Freiheit are collected

under the following main topic headings: agitation in connection with 8 May; revisionism; re-education and coming to

terms with the past; political correctness (PC); re-evaluation of the terms “conservative”, “nation” and “democracy”;

conservative revolutionary movement; anti-parliamentarianism; agitation against institutions and office-holders of free

democracy; tendencies against fundamental rights.

In addition, there are reports on the circles of readers of Junge Freiheit, on the relationship to what is known as the

JF Summer University, and again on the New Right.

II.

The complainant instituted legal proceedings at the Administrative Court against the Land North-Rhine/Westphalia,

inter alia for an order that the Land cease and desist from disseminating the reports of the Office for the Protection of

the Constitution, unless the passages on Junge Freiheit were removed, for a declaration that the Land was not entitled

to classify Junge Freiheit in the category of right-wing extremism as long as it had no more than a suspicion of this,

and in addition for a correction to the effect that the classification had not been justified and for the revocation of

allegations.

1. The Administrative Court dismissed the action in the year 1997.

a) The court stated that the areas protected by Article 5.1 sentence 2 and Article 12.1 of the Basic Law

(Grundgesetz) were not even impinged on. Article 5.1 sentence 2 of the Basic Law, it held, protected the

dissemination of opinions and facts in printed works. Despite the publication of the reports of the Office for the

Protection of the Constitution, it was possible for the complainant to produce and disseminate Junge Freiheit and to

make decisions as to the contents of the articles it published. The disadvantages of a financial nature asserted by the

complainant as a result of the criticism expressed in the reports of the Office for the Protection of the Constitution

were not part of the scope of protection of Article 5.1 sentence 2 of the Basic Law.

The fundamental right under Article 12.1 of the Basic Law was equally unaffected by the reports of the Office for the

Protection of the Constitution and the associated information of the public, because the editors and employees of the

complainant were able to continue their activities.

b) Nor did the reports violate the complainant’s general right of personality following from Article 2.1 in conjunction

with Article 1.1 of the Basic Law, because the encroachment constituted by the reports was justified. The basis for

this was in the enabling provision of § 15.2 of the NRW Protection of the Constitution Act, whose formal and

substantive requirements were satisfied. In a formal respect, the Land was the competent association to act; in

particular, the defendant Land had jurisdiction to mention the newspaper published by the complainant in the reports of

the Office for the Protection of the Constitution. An association of persons with its seat in North-Rhine/Westphalia

was not required; on the contrary, it was sufficient that Junge Freiheit was disseminated in North-Rhine/Westphalia.

The publication of the reports of the Office for the Protection of the Constitution was also substantively lawful. The

complainant did not only wish to express opinions, but through its publications to set in motion a process of change in

the public climate of opinion, in the spirit of its editorial principles. There were factual indications supporting the

suspicion that this practice was intended to remove or invalidate constitutional principles that are part of the free

democratic fundamental order. This was sufficient for publication in a report of the Office for the Protection of the

Constitution; this followed from the mere wording of § 15.2 of the NRW Protection of the Constitution Act, which

referred to § 3.1 of the NRW Protection of the Constitution Act and the last half-sentence thereof. The meaning and

purpose of the provision did not require a departure from this. Reports of the Office for the Protection of the

Constitution served the purpose of information, as followed directly from § 15.2 of the NRW Protection of the

Constitution Act, which provided for information of the public on tendencies against the constitutional order. The

provision was the expression of the principle of “militant democracy”, which constitutionally imposed on the state the

duty to protect the free democratic fundamental order. The discharge of this duty entailed the task of effectively

warning the public of dangers to constitutionally protected interests even if there were only indications of the suspicion

of tendencies hostile to the constitution. If the information were permissible only when there was certainty, the danger

warning might be too late.

There were factual indications supporting a suspicion against the complainant. The newspaper did not offer a

“market for opinions”, since it could not and did not represent every opinion. The opinions expressed and facts

reported in the newspaper were published on the responsibility of the editorial department in compliance with the rules

of press law and were to be attributed to the newspaper if the newspaper did not express disapproval or distance itself

from the texts distinctly enough at a close point in time or physically close to the publication. An overall survey of all

articles revealed the tendency of the newspaper, which showed intentions directed against the free democratic

fundamental order. Conclusions were to be drawn from all articles, including those written by freelances and the

readers’ letters. The objective declaratory content of a statement was essentially to be understood in the way in which

it affected a third party, that is, the circle of addressees.

On this basis, the reports led to the conclusion that the complainant disregarded the human rights of the Basic Law.

Foreigners were represented as inferior and undesirable for economic and ecological reasons. A racist reader’s letter

with the heading “ASYLyrik” [Translator’s note: a combination of the terms for “asylum” and “lyric poetry”] had been

published with no indication at a close date that the newspaper distanced itself from this. The cynical denigration of

holocaust victims through satirical means displayed an anti-Semitic stance. Aids victims were also defamed in a

review of the year by being named in the same breath as slaughtered animals. In addition, the newspaper showed

indications supporting the suspicion of tendencies against the principle of democracy. Doubt was cast on the

multiparty system. A form of state was propagated in which the government would no longer be answerable to

parliament. An anti-democratic attitude was also shown in the fact that the complainant supported the idea of

conservative revolutionary movement, which was advocated in the German empire and in the Weimar Republic.

The publication in the reports of the Office for the Protection of the Constitution was not out of proportion. It was

suitable and necessary in order to show the public indications supporting the suspicion of tendencies that were

significant from the point of view of protection of the constitution. Nor was it out of proportion to the disadvantages

asserted by the complainant. On the one hand, the complainant had not substantiated its submissions of financial

disadvantages caused by the reports of the Office for the Protection of the Constitution. On the other hand, these

disadvantages were subordinate to the concerns pursued in the reports, and in the last instance they were merely a

consequence of the reports.

2. The Higher Administrative Court rejected the application for leave to appeal in the year 2001.

It stated that there were no serious doubts as to the correctness of the decision of the Administrative Court in the

meaning of § 124.2 no. 1 of the Rules of Procedure of the Administrative Courts (Verwaltungsgerichtsordnung –

VwGO). The complainant’s general right of personality had not been violated, since the reports had been lawful. The

Land had been the competent association to act with regard to the challenged measures. The Administrative Court,

whose arguments the Higher Administrative Court adopted, had rightly assumed, on the basis of a comprehensive

assessment of a large number of publications of Junge Freiheit, that with regard to the complainant there were factual

indications supporting the suspicion of tendencies against the free democratic fundamental order which justified a

publication in the reports of the Office for the Protection of the Constitution. In an overall survey, the impression was

formed that the complainant actively advocated the above opinions hostile to the constitution. The objections of the

complainant made against this were not capable of removing the suspicion. It was irrelevant whether the articles could

also be interpreted differently. The only conclusive factor was the fact that the articles in question, when considered

reasonably, could also, and particularly, be understood in the sense set out by the Administrative Court and the

totality of the articles assessed by the Administrative Court at all events gave sufficient cause for the suspicion of

aims hostile to the constitution. Over a long period of time, the editorial department had published a large number of

such articles without commentary and without distancing itself from them. In addition, the Higher Administrative Court,

in conformity with the decision of the Administrative Court, assumes that a violation of the principle of proportionality

cannot be established and the areas protected by Article 5.1 sentence 2 and Article 12.1 of the Basic Law are not

affected. The Higher Administrative Court also, without giving details of the reasons for this, refused leave to appeal

for the reasons in § 124.2 no. 2 of the Regulations of the Administrative Courts (case with special factual or legal

difficulties) and of § 124.2 no. 3 of the Regulations of the Administrative Courts (fundamental importance).

III.

In its constitutional complaint, the complainant challenges a violation of its fundamental rights under Article 2.1 in

conjunction with Article 1.1 and under Article 5.1 sentences 1 and 2 and Article 12.1 of the Basic Law by the two

reports of the Office for the Protection of the Constitution and the decisions of the Administrative Courts. In addition,

it submits, the order of the Higher Administrative Court violates its fundamental rights under Article 2.1 in conjunction

with Article 20.3 and under Article 3.1 and Article 19.4 of the Basic Law.

1. The complainant submits that an encroachment on the freedom of the press and occupational freedom also

results from the intensity of the detriment suffered by the complainant in consequence of the reports. In this

connection, it is not necessary to substantiate this in detail, because including the complainant in the reports of the

Office for the Protection of the Constitution stigmatises it in public. This makes it considerably more difficult to obtain

advertising customers, to secure its marketing and to attract readers. The complainant submits that the public does

not differentiate between the statement that Junge Freiheit is of the extremist right and the statement that there are

factual indications supporting such a suspicion. As a result of the reports, the complainant states that it cannot

successfully defend itself in legal disputes under private law against being designated as of the extremist right. In

addition, it should be taken into account that the reports of the Office for the Protection of the Constitution have a

political effect mainly through the mass media. The public at large does not read the reports of the Office for the

Protection of the Constitution; in contrast, the media follow the reports of the Office for the Protection of the

Constitution in their reporting and their assessments when it comes to classifying political groups or publications as

extremist. The fact that the report of the Office for the Protection of the Constitution states that there are “factual

indications supporting the suspicion of a right-wing extremist tendency” scarcely moderates the stigmatising effect of

the report in practice. In the “Osho” and “Glykol” decisions (reference to Decisions of the Federal Constitutional Court

(Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 105, 279 and BVerfGE 105, 252), according to the

complainant, the Federal Constitutional Court established that adverse effects that did not have the quality of an

encroachment are to be reviewed by the standard of the special right of freedom involved. Here, the Federal

Constitutional Court departed from an earlier decision (BVerfGE 40, 287) under which the indirect effects of the

classification as extremist in a report of the Office for the Protection of the Constitution are to be measured only

against the prohibition of arbitrariness.

2. The complainant submits that the encroachment on its fundamental rights is not justified by § 15.2 of the NRW

Protection of the Constitution Act.

a) In the courts’ interpretation of the provision, the Land is not the competent association under § 15.2 of the NRW

Protection of the Constitution Act. Even in the area of protection of the constitution, the jurisdiction of each of the

Länder is territorially restricted. This applies to a greater extent to the public-relations activities of the Office for the

Protection of the Constitution than to its collection and processing of information. The present case concerns an

opinion on a Berlin newspaper. Any “tendencies” hostile to the constitution can have occurred only there. Merely

disseminating Junge Freiheit in North-Rhine/Westphalia too, in contrast, cannot be regarded as such a “tendency”,

since it is a matter of acts by people; in this case, those people are the members of the editorial staff resident in

Berlin, not the readers and sellers in North-Rhine/Westphalia. In publishing the reports, the Land encroached on the

competence to assess of the Land Berlin and the Federal Government.

b) § 15.2 of the NRW Protection of the Constitution Act, according to the complainant, is also substantively

unconstitutional, if the interpretation used by the courts is applied. It is neither a general statute, nor does it put into

concrete terms a barrier to the freedom of the press that is inherent to the Basic Law. Including matters in the reports

on the basis of a mere suspicion of tendencies hostile to the constitution is incompatible with the fundamental rights

of the complainant and with the principle of the rule of law and the principle of democracy. The purpose of the reports

is not informing the public, but protecting the free democratic fundamental order. For this reason, according to the

complainant, a mere suspicion is inadequate. On the contrary, drafting challenges to organisations presupposes that

these are actually known to have an objective outside the scope of democratic consensus. The idea of warding off

dangers does not lead to a different result. If a group is wrongly included in a report of the Office for the Protection of

the Constitution, the free democratic fundamental order as the interest protected by the publication is adversely

affected. On account of the serious consequences of inclusion in a report, it is even appropriate to draw an analogy to

the presumption of innocence in criminal law. The suspicion of tendencies hostile to the constitution, the complainant

submits, may justify only measures for the purpose of investigation, but not an attack on the organisation affected.

Under the aspect of proportionality too, an investigation of dangers has priority over potential measures to ward off

dangers. At least, it is not necessary to set out the cases of suspicion in the same chapter and with the same visual

design and manner of presentation as is used for groups that have been proved to be hostile to the constitution. The

designation “extremist” is also out of proportion, according to the complainant.

c) The complainant submits that the application of § 15.2 of the NRW Protection of the Constitution Act to the

present case is also incompatible with the constitution. There are no factual indications supporting the suspicion that

Junge Freiheit has objectives hostile to the constitution. The courts misunderstood the message of the majority of the

quotations that are contained in the reports cited. Other possibilities of interpretation were not excluded. An exception

was the racist reader’s letter, but this is not attributable to the complainant and the complainant distances itself from

it.

According to the complainant, an overall consideration of Junge Freiheit does not justify the reports of the Office for

the Protection of the Constitution either. The reader’s letter alone, at all events, is insufficient. The Administrative

Court referred to only sixteen quotations, six of which did not come from the periods of time to which the reports

related. Bearing in mind that Junge Freiheit publishes several thousand articles per year, this is too small a proportion.

Finally, the publication in the reports of the Office for the Protection of the Constitution was out of proportion. The

free democratic fundamental order, the complainant submits, is wrongly weighed against the adverse effects on the

complainant as an abstract quantity. Instead, the importance of the complainant’s acts for this fundamental order

should have been determined; here, for example, the relevant factors are the number of readers, the influence of the

newspaper in society as a whole and the stability of democracy in Germany, The courts, according to the

complainant, also failed to appreciate the intangible adverse effect of the reports on the complainant and made

exaggerated demands for the submission of financial disadvantages.

3. The complainant submits that the Order of the Higher Administrative Court deals with the requirements for leave

to appeal in a manner that violates fundamental procedural rights. The Higher Administrative Court passed an appeal

judgment in the matter without conducting appeal proceedings. In consequence, the complainant’s possibility of

making further factual submissions was curtailed in a manner contrary to the rule of law. In addition, the complainant

submits that proceedings lasting more than four years at the appeal level are too long, although in its pleading of 6

December 2004 it points out that it is interested above all in a decision on the merits, since finality can only be

attained if the fundamental constitutional questions are solved.

IV.

The Land North-Rhine/Westphalia, in its submission, denies that substantive fundamental rights of the complainant

have been violated and submits in particular that the suspicion against the complainant was sufficient to include it in

the reports of the Office for the Protection of the Constitution. It submits that Junge Freiheit gives a large number of

factual indications to support the suspicion that the complainant, through this newspaper, shows tendencies that are

directed above all against the democratic and parliamentary order of the Basic Law. The complainant relies,

sometimes expressly and sometimes impliedly, on the anti-democratic and anti-parliamentarian thought of the

conservative revolutionary movement, inclines to minimise National Socialism and the holocaust, advocates

geographical revisionism and denigrates the constitutional order of the Basic Law and its political opponents. In

addition, a large number of articles in Junge Freiheit contain remarks that are xenophobic and tend to anti-Semitism.

The North-Rhine/Westphalian Office for the Protection of the Constitution is entitled, according to the Land, to pursue

such a suspicion, since Junge Freiheit is also disseminated in North-Rhine/Westphalia. Contrary to the opinion of the

complainant, the Office is not obliged to print the information on Junge Freiheit separately from reports on

organisations with regard to which more than a suspicion exists.

The constitutional complaint is admissible and is well-founded.

The challenged decisions violate the complainant’s fundamental right to freedom of the press under Article 5.1

sentence 2 of the Basic Law.

1. The Administrative Court dismissed the complainant’s action inter alia on the grounds that incorporating passages

on Junge Freiheit in the North-Rhine/Westphalia reports of the Office for the Protection of the Constitution of 1994 and

1995 does not impinge on the area protected by freedom of the press. The same legal assessment is a principal

argument for the rejection by the Higher Administrative Court of the application for leave to appeal. This view fails to

appreciate the scope of the area protected by the fundamental right of freedom of the press.

a) The complainant, as the publisher and editor of a weekly newspaper, is protected by the fundamental rights under

Article 5.1 sentences 1 and 2 of the Basic Law. As a legal person under private law, it may also rely on freedom of

speech and freedom of the press under Article 19.3 of the Basic Law (see BVerfGE 80, 124 (131); 95, 28 (34)). The

fundamental right safeguards the freedom of production and dissemination of printed works and thus the press as a

medium of communication (see BVerfGE 85, 1 (12-13)). In contrast, freedom of speech under Article 5.1 sentence 1

of the Basic Law protects the form and content of expressions of opinion, even if they are disseminated in a printed

publication (see BVerfGE 97, 391 (400)).

In the present case, the basis for the court’s judicial review is the freedom of the press. The government measure

affects the printed publication itself and influences the basic conditions of press activity. The object of the reports of

the Office for the Protection of the Constitution is the reference to the suspicion that the complainant shows

tendencies to remove or invalidate, with the help of the newspaper, the free democratic fundamental order in the

federal and Länder governments. The reports of the Office for the Protection of the Constitution, in order to evidence

the assumed suspicion of tendencies hostile to the constitution, pick out individual articles from Junge Freiheit in

order to justify an overall assessment of the newspaper and the group behind it on this basis: the negative

assessment of the tendencies applies to the organisation that uses the newspaper as a mouthpiece.

In this connection, the reports of the Office for the Protection of the Constitution assess individual expressions of

opinion each in isolation as hostile to the constitution and attribute them to the complainant. From this point of view,

the freedom of speech in Article 5.1 sentence 1 of the Basic Law may become a basis for the court’s judicial review.

But in the present case, the complainant challenges only the conclusions drawn from the articles on the complainant’s

tendencies hostile to the constitution as the publisher of a newspaper. Consequently, the fundamental right to freedom

of speech has no independent significance for the constitutional assessment of the challenged decisions in the

present proceedings.

b) Not every government activity relating to information and not every participation of the government in the process

of formation of public opinion is to be assessed as an encroachment upon fundamental rights (see BVerfGE 105, 252

(265 et seq.) on Article 12.1 of the Basic Law; 105, 279 (294 et seq., 299 et seq.) on Article 4.1 of the Basic Law).

The conclusive factor is whether the area of protection of a fundamental right is impinged on and whether the adverse

effect is an encroachment or a measure equivalent to an encroachment. These requirements are satisfied when the

complainant is named in the report of the Office for the Protection of the Constitution.

aa) The area of protection of the fundamental right of freedom of the press is determined taking into account the

purpose of the guarantee made by the fundamental right. The freedom of the press is specially protected as a

fundamental right in view of the fact that a free press not controlled by public authority is an essential element of a

free state and is indispensable to a democracy (see BVerfGE 20, 162 (174)). Consequently, it is the task of the press

to enable comprehensive information, to reproduce the variety of existing opinions and itself to form and advocate

opinions (see BVerfGE 52, 283 (296)). For this to happen, the press must be independent of the state. The freedom of

the press therefore protects the holders of fundamental rights against influence exerted by the state on information

disseminated with the help of the press, in particular against negative or positive sanctions which are linked to the

content and design of the publication (see BVerfGE 80, 124 (133-134) on subsidies).

The protection against encroachments relating to content relates not only to encroachments in the traditional sense

(on the traditional concept of encroachment, see BVerfGE 105, 279 (300)), but may also be triggered in the case of

indirect effects on the press (see BVerfGE 52, 283 (296)), if the objective and effects of these are equivalent to

encroachments (see BVerfGE 105, 252 (273)). Article 5.1 sentence 2 of the Basic Law therefore grants the holders of

freedom of the press a subjective defensive right even against adverse effects that are caused indirectly when the

state influences third parties, for example in such a way that the conduct of those third parties has negative effects

on the possibilities of journalistic impact or the financial returns of the organ of the press in a manner that is

equivalent to an encroachment. In contrast, it is not a requirement for finding that the freedom of communication may

have been adversely effected that, in addition to actual disadvantages for activity relating to information, the state

measure must also entail legal consequences – as the Second Senate assumed in the year 1975 for the area of

Article 21 of the Basic Law (BVerfGE 40, 287 (293)).

bb) In the present case, the mention of Junge Freiheit and the critical examination of it in the reports of the Office for

the Protection of the Constitution serve the purpose of the Office for the Protection of the Constitution, paraphrased in

§ 3.1 and § 15.2 of the NRW Protection of the Constitution Act, of warding off tendencies against the free democratic

fundamental order of the federation and the Länder through informing the public. The effects caused by a report of the

Office for the Protection of the Constitution in connection with this objective are equivalent to an encroachment.

The report of the Office for the Protection of the Constitution is not an arbitrary product of government public

relations work. It is aimed at warding off particular dangers (§ 1 of the NRW Protection of the Constitution Act) and

comes from an office specialised in this and working with particular powers (see §§ 5 et seq. of the NRW Protection of

the Constitution Act), including the legal power to employ intelligence resources. In this respect, publication in the

report of the Office for the Protection of the Constitution goes beyond the mere participation of government office-

holders in public discussion or in the creation of a sufficient information basis to enable the citizens to form decisions

independently, for example as participants in the market (see BVerfGE 105, 252 (267 et seq.)). It is a negative

sanction imposed on the complainant, linked to the disseminated contents communicated and indirectly onerous.

In the reports, the authority for the protection of the constitution assesses individual contents of the newspaper as

hostile to the constitution and adds conclusions on the complainant’s tendencies. In the opinion of the Administrative

Court, the statement in the report of the Office for the Protection of the Constitution at the same time has the

character of a warning against the complainant and the newspaper for which it is responsible (on the warning function,

see also Higher Administrative Court of North-Rhine/Westphalia (Oberverwaltungsgericht Nordrhein-Westfalen – OVG

NRW), Neue Zeitschrift für Verwaltungsrecht - NVwZ 1994, pp. 588-589; Murswiek, NVwZ 2004, p. 769 (771) with

further references in footnote 21). The publishing house and the editorial department of Junge Freiheit are admittedly

not prevented by the mention in the reports of the Office for the Protection of the Constitution from continuing to

produce and distribute the newspaper and from publishing articles in the future like those objected to. However, their

possibilities of impact are adversely affected by the report of the Office for the Protection of the Constitution.

Potential readers may be prevented from buying and reading the newspaper, and it is not unlikely, for example, that

advertisers, journalists or writers of readers’ letters may take the reference in the report of the Office for the Protection

of the Constitution as a cause to turn away from or boycott the newspaper.

Such an indirect effect of the reports of the Office for the Protection of the Constitution is equivalent to an

encroachment on the fundamental right of communication.

2. The assumption of the authority and the courts, which admittedly took place as part of the assessment under

Article 2.1 of the Basic Law, that such an adverse effect is at least justified, does not in every respect stand up to

examination under constitutional law.

a) In principle, the state is not prevented from making a value judgment on the actual conduct of groups or their

members (see BVerfGE 105, 279 (294) on Article 4.1 of the Basic Law). The defence of principles and values of the

constitution by organs and office-holders of the state may also take place with the help of information to the public

and participation in public discussions. But if the government activity relating to information results in adverse effects

that are equivalent to an encroachment on a fundamental right (see BVerfGE 105, 252 (273)), these must be justified

(see BVerfGE 105, 279 (299 et seq.) on Article 4 of the Basic Law).

aa) The freedom of the press is not guaranteed without restriction. Under Article 5.2 of the Basic Law, it finds its

limits inter alia in the general statutes. General statutes are statutes that are not directed against the fundamental

right in itself or against the expression of a particular opinion, but serve the protection of a legal interest in itself,

irrespective of a particular opinion (see BVerfGE 7, 198 (209-210); 97, 125 (146); established case-law).

§ 15.2 of the NRW Protection of the Constitution Act is such a general statute. The authorisation contained in § 15.2

of the NRW Protection of the Constitution Act to inform the public in reports of the Office for the Protection of the

Constitution for the purpose of giving information on tendencies and activities hostile to the constitution, as is shown

by the reference to § 3.1 of the NRW Protection of the Constitution Act, serves to protect the free democratic

fundamental order in the federal and Länder governments. The authorisation is directed neither against a particular

opinion nor against the process of free formation of opinions or against free information as such, but aims to preserve

a legal interest generally enshrined in the legal order, in the present case in the constitution, the protection of which is

independent of whether it is endangered or violated by expressions of opinion or in another way.

bb) There are no reservations as to the formal constitutionality of § 15.2 in conjunction with § 3.1 of the NRW

Protection of the Constitution Act. In particular, the Land North-Rhine/Westphalia has not exceeded its legislative

competence.

Under Article 73 no. 10 letter b of the Basic Law, the federal government has the exclusive legislative competence

for the cooperation of the federal government and the Länder in the area of protection of the constitution, but not for

the protection of the constitution in general. In this respect, the legislative competence of the Länder arises under

Article 70.1 of the Basic Law. The Länder are authorised to pass statutes to avert tendencies against the free

democratic fundamental order to the extent that these have their effects in the Land in question and can therefore give

rise to dangers there. In the case of a newspaper, this may be the case in every Land in which it is distributed.

Contrary to the opinion of the complainant, it is not decisive whether the tendencies originate in another Land – in the

present case Berlin, the seat of the editorial department and publishing house of Junge Freiheit.

Nor is the legislature in principle prevented from authorising measures to avert tendencies hostile to the constitution

where those measures unavoidably have effects outside the boundaries of the Land. In the case of reports of the

Office for the Protection of the Constitution as printed works, the possibility can never be excluded that the

information contained in them is also received in other Länder or is disseminated further, for example through reporting

in the media.

cc) Under substantive law too, there are no constitutional objections against § 15.2 in conjunction with § 3.1 of the

NRW Protection of the Constitution Act, which authorises the authority, in circumstances set out in more detail, to

inform the public of tendencies hostile to the constitution in the report of the Office for the Protection of the

Constitution.

(1) Publication in the reports of the Office for the Protection of the Constitution is a precaution basically appropriate

to inform the public and, in this context, to guard against tendencies hostile to the constitution. When the

authorisation of § 15.2 of the NRW Protection of the Constitution Act is relied on to publish information in the report of

the Office for the Protection of the Constitution, the legal limits of discretion must be observed (see § 40 of the

Administrative Procedure Act for North-Rhine/Westphalia – VwVfG NRW); these include the principle of

proportionality. Admittedly, in § 15.2 of the NRW Protection of the Constitution Act the precept of necessity is

mentioned expressly only with regard to the publication of personal data. However, under constitutional law, it is

always part of the principle of proportionality in the case of encroachments or adverse effects equivalent to

encroachments on fundamental rights, and it is therefore an unwritten element of the provision.

(2) The constitutional requirements of the proportionality of an onerous measure are influenced individually by the

priority of the legal interest to be protected and the intensity of its endangerment, but also by the manner and severity

of the adverse effect on the right of freedom of the person affected.

The authority for the protection of the constitution and the courts have interpreted § 15.2 in conjunction with § 3.1

no. 1 of the NRW Protection of the Constitution Act to mean that the existence of factual indications supporting the

suspicion of tendencies hostile to the constitution is sufficient for a matter to be included in the report of the Office for

the Protection of the Constitution. In support, they have relied on the last part of the sentence in § 3.1 of the NRW

Protection of the Constitution Act, which contains a general restriction of the task of the authority for the protection of

the constitution in the words “to the extent that factual indications supporting the suspicion of such tendencies and

activities are available”. Notwithstanding the criticism expressed in the literature of this understanding of the provision,

in particular for systematic reasons (see Murswiek, NVwZ 2004, p. 769 (775)), the Federal Constitutional Court, in the

constitutional evaluation of the measures challenged, must proceed on the basis of the interpretation of the

nonconstitutional courts, because no constitutional objections may be made to it.

(a) The factual indications must, however, be sufficiently weighty. If it justifies merely the conclusion that there may

possibly be grounds for a suspicion, then it is not sufficient as the basis of an adverse effect on fundamental rights

under this interpretation either. If the tendencies are not yet established but factual indications give rise to such a

suspicion, their intensity must be sufficient to justify publication in reports of the Office for the Protection of the

Constitution even despite the adverse effects on the persons involved.

The statute understands tendencies in the meaning of § 15.2 of the NRW Protection of the Constitution Act as

politically motivated, goal-directed and purposeful practices in or for an association of persons which has the purpose

of removing or invalidating one of the constitutional principles named in § 3.4 of the NRW Protection of the

Constitution Act (§ 3.3 sentence 1 letter c VSG NRW). A person who strongly supports an association of persons in

its tendencies acts for that association of persons (§ 3.3 sentence 2 of the NRW Protection of the Constitution Act).

Practices of individuals who are not acting in or for an association of persons are only in exceptional cases to be

regarded as tendencies in the meaning of the statute, for example if they are directed toward the use of force (§ 3.3

sentence 2 of the NRW Protection of the Constitution Act).

In the definition of the tendencies in § 3.3 sentence 1 letter c of the NRW Protection of the Constitution Act, the

statute takes up an element of the definition that is also contained in § 92.3 no. 3 of the Criminal Code

(Strafgesetzbuch – StGB). In criminal law, it is recognised that the disapproval of a principle of the constitution is not

sufficient to satisfy the element. On the contrary, it is required that particular persons or groups attempt to remove

one of the principles of the constitution (see Stree/Sternberg-Lieben in: Schönke/Schröder, Strafgesetzbuch, 26th ed.

2001, marg. nos. 16-17 on § 92). The mere criticism of constitutional values and constitutional principles is not to be

assessed as a danger to the free democratic fundamental order, unlike activities to remove it that go beyond this.

Taking into account the principle of proportionality, the nature and gravity of the sanction must be correlated to the

concrete potential for danger.

(b) If the sanction is linked to expressions of opinion or press publications, account must also be taken of the fact

that freedom of speech and of the press is itself a constitutive element of democracy, which also permits critical

discussion of constitutional principles and values. The extent of protection of fundamental rights of communication

may have effects both on the requirements for establishing tendencies or suspicion to this effect and also on the legal

evaluation of the measure taken, in particular with regard to its reasonableness.

(aa) However, it is constitutionally unobjectionable if the authority for the protection of the constitution links inclusion

in its reports to the contents of expressions of opinion to the extent that these are the expression of a tendency to

remove the free democratic fundamental order. In principle, the state is not prevented from drawing conclusions from

expressions of opinion and if necessary taking measures to protect legal interests. Thus, for example, statements

giving notice of an intended criminal offence may be the cause for taking measures to prevent the offence being

committed. If tendencies to remove the free democratic fundamental order may be inferred from expressions of

opinion, measures to defend this fundamental order may be taken. But protection by Article 5.1 of the Basic Law has

effects on the examination as to whether the tendency hostile to the constitution is expressed in the statement. Here,

it must be taken into account that criticism of the constitution and its essential elements is just as much allowed as is

the expression of the demand that principal elements of the free democratic fundamental order should be changed.

Consequently, the mere criticism of constitutional values is not a sufficient cause to affirm a tendency hostile to the

constitution in the meaning of § 15.2 in conjunction with § 3.3 of the NRW Protection of the Constitution Act, or for

this reason alone to impose the negative sanction of publication in the reports of the Office for the Protection of the

Constitution. Nor does § 15.2 of the NRW Protection of the Constitution Act provide for a valuation of the contents of

articles in the report of the Office for the Protection of the Constitution separate from the establishment of the

suspicion of such tendencies. However, individual articles may be cited to justify the suspicion of tendencies hostile

to the constitution if they suggest this in themselves or in conjunction with other findings.

(bb) The use of the articles published in the newspaper as indications of such tendencies on the part of the

complainant may also refer to articles that the complainant or the members of its editorial department did not

themselves write. However, § 3.3 sentence 1 of the NRW Protection of the Constitution Act expressly does not regard

practices by individuals that do not satisfy the requirements of § 3.3 sentence 3 of the NRW Protection of the

Constitution Act as tendencies in the meaning of the statute insofar as they do not act in or for an association of

persons. Special indications are therefore necessary to show why such tendencies on the part of the publishing house

and the editorial department can be derived from the articles of third parties who are not part of the editorial

department. This may be the case if tendencies hostile to the constitution on the part of the publishing house and the

editorial department are expressed as a result of the editorial choice of the publications written by third parties.

However, in the evaluation it should be taken into account that newspapers usually do not adopt all the contents

they publish, even if they do not expressly distance themselves from these in each case. Consequently, the

Administrative Court stated that decisive indications were mainly derived from articles and commentaries by the

members of the editorial department itself and by the freelances. Other statements [in the newspaper] could at all

events be ruled out, insofar as the newspaper offered a “market for opinions” without identifying itself with any. If this

was not the case, the statements of third parties, for example of other authors and writers of readers’ letters, might be

attributable to the publishing house and the editorial department, unless these were merely isolated aberrations.

In principle, this opinion is constitutionally unobjectionable. But when it is put into practice, it should be noted that

the newspaper is free to restrict the function and scope of the forum it opens, for example to a particular political

spectrum. If the reproduction of the articles or readers’ letters by third parties shows the intention of the editorial

department not to restrict itself to contributions that follow a particular editorial line, then it may not be automatically

concluded from their publication that this also shows a tendency of the publishing house and the editorial department.

For this to be the case, additional indications would be needed. If, on the contrary, the newspaper does not see itself

as a “market for opinions”, it is constitutionally unobjectionable to attribute to the editorial department the positions

shown in the published articles, unless it expressly distances itself from them. It is also possible to make an

attribution if a particular line of content is recognisable from the selection of the articles and expressions of opinion of

third parties.

proportionality is the standard for the decision as to the way in which it may be reported.

The measure must be restricted to what is necessary to protect legal interests, which includes, when a report is

made on the basis of a suspicion, not creating the impression that it has been established that the group in question

pursues tendencies directed against free democratic fundamental order. In consequence, a clear distinction must be

made – for example in the headings chosen and the structure of the report – between organisations in the case of

which there is only a suspicion and those in the case of which such tendencies have been proved.

The principle of necessity further requires that where such a suspicion based only on individual publications is

repeatedly published over a long period of time, other measures should be taken to determine whether the tendencies

actually exist.

b) The decisions of the Administrative Court and the Higher Administrative Court did not in every respect take these

constitutional requirements into account.

aa) As already set out, it is in principle not constitutionally objectionable for the suspicion of tendencies hostile to

the constitution to be based on publications in the newspaper, to the extent that these are attributable to the

complainant.

(1) Whether particular articles in the complainant’s newspaper are the expression of its own tendencies, however,

may not be derived from the institution of responsibility under the press laws, contrary to the opinion of the

Administrative Court and the Higher Administrative Court. This serves other purposes. The duty, expressly provided in

the press laws, to have a masthead and in this, inter alia, to give the name of the publishing house and of the

responsible editor (see § 8 North-Rhine/Westphalia Press Act – Landespressegesetz NRW – LPG NRW) is intended

to prevent the frustration of criminal and civil liability by escape into anonymity (see Sedelmeier in: Löffler,

Presserecht, 4th ed. 1997, marginal no. 1 on § 9 of the North-Rhine/Westphalia Press Act). This responsibility under

the press law, however, does not lead to all published articles, readers’ letters and advertisements being attributed to

the press organ. Nor does the criminal liability of the responsible editor or publisher rest on the attribution to them of

criminal articles by third parties. On the contrary, they are independently liable if they do not prevent the publication of

criminal publications by others (see § 21.2 of the North-Rhine/Westphalia Press Act).

(2) The suspicion of tendencies hostile to the constitution on the part of the publishing house and the editorial

department that is based on facts must therefore be substantiated in a different way. Establishing such

circumstances is the duty of the authority and the nonconstitutional courts. The Federal Constitutional Court merely

assesses whether constitutional principles were disregarded in the assessment of facts (see BVerfGE 18, 85 (92-93,

96); 42, 143 (148); 60, 79 (90)). That is in part the case here.

(a) However, it is not constitutionally objectionable that the authority and the courts did not rely solely on the

assessment of articles that were published in the years 1994 and 1995. It is the duty of the report of the Office for the

Protection of the Constitution to provide information on tendencies of a group without it necessarily being possible to

derive these only from articles in the period reported.

(b) But the constitutional requirements are not satisfied by the explanation why the articles cited as evidence are

understood to express the tendencies hostile to the constitution of the publishing house and editorial department and

not merely of their authors. The Administrative Court rejects the assumption that Junge Freiheit opened a “market for

opinions” in making it a requirement that it must be possible for “everything to be able to be represented and to be

represented”. The freedom of the press also covers the decision to intend to offer a forum for only one particular

political spectrum, but in that forum to allow the authors great freedom and thereafter not to identify oneself with all

individual publications. In its own assessment, Junge Freiheit is conservative and right-wing, but in the spectrum of

the right wing it publishes articles of greatly differing authors with different concerns. These also include in part

articles by prominent conservative politicians and writers who are not under suspicion of tendencies hostile to the

constitution. Special indications would therefore be needed as to why the editorial department does not identify itself

with these articles, but does identify itself with the articles cited by the courts, or why the editorial department uses

this spectrum of opinions only in order to be able to place articles hostile to the constitution in such a context and to

better communicate them to the public. The courts evidently omitted arguments on this because they wrongly

assumed that Junge Freiheit could not be seen as a “market for opinions” for the sole reason that it was open only to

one particular political spectrum.

declaration of a statement as it is understood by third parties (according to the Administrative Court), and that what

matters is how the articles may be understood when considered reasonably (according to the Higher Administrative

Court). These approaches fail to appreciate the requirements made to establish the suspicion of tendencies hostile to

the constitution on the part of a press publishing house. The statutory authorisation for the adverse effects on

fundamental rights that are decisive in the present case is, under § 3.3 sentence 1 letter c of the NRW Protection of

the Constitution Act, linked exclusively to the aims of the group, and is therefore not related to the effect on third

parties.

(d) Whether the factual indications supporting a suspicion of tendencies hostile to the constitution on the part of the

complainant are sufficient even when these principles are taken into account must be re-evaluated by the

nonconstitutional courts.

bb) The nonconstitutional courts will also have to examine whether the nature of the publication in the reports of the

Office for the Protection of the Constitution for 1994 and 1995 satisfied the requirements of the principle of

proportionality.

Although the authority proceeded on the assumption only of factual indications to support a suspicion, it equated the

complainant with groups for which it has established tendencies hostile to the constitution, under the headings

“Rightwing extremism”, “Rightwing extremist publications, publishing houses, distributors, media” or “Rightwing

extremist organisations, groups and movements”, without any differentiation in the classification or in the headings of

the report. A less burdensome approach might be to design the report in such a way that it is apparent that the

tendencies hostile to the constitution have by no means been established. It is true that in the text of the report it is

not claimed that these tendencies are firmly established; on the contrary, there is reference only to the factual

indications supporting the suspicion of such tendencies. But it is possible that on a cursory reading, this

differentiation will not be noticed, and the lack of differentiation in the design of the report might mislead readers. It

must also be taken into account that the media, when reporting on tendencies hostile to the constitution, do not

usually reproduced nuances contained in the text, but put all organisations contained in the report of the Office for the

Protection of the Constitution under the same heading in one category. It is necessary for the further findings of the

nonconstitutional courts to determine whether the design and the content of the report make it clear without doubt and

in an easily discernible way that no tendencies hostile to the constitution have been proved.

II.

Since the courts did not take sufficient account of the constitutional requirements arising from Article 5.1 sentence 2

of the Basic Law, their decisions are reversed. The matter is to be referred back to the Administrative Court for a new

decision.

Whether in addition other fundamental rights, for example Article 2.1 and Article 12.1 of the Basic Law, have been

violated need not be decided here. Nor is a decision necessary on the submission that fundamental procedural rights

have been violated. The complainant, in its pleading of 6 December 2004, points out that, in the interest of attaining

finality, it is most concerned to obtain a decision on the merits by clarifying the basic constitutional questions.

III.

The decision on costs is based on § 34 a.2 of the Federal Constitutional Court Act

(Bundesverfassungsgerichtsgesetz - BVerfGG).

Judges: