Federal Constitutional Court of Germany

12/15/2022 | Press release | Distributed by Public on 12/15/2022 02:38

Unsuccessful constitutional complaints concerning the post-mortem personality right of former Federal Chancellor Dr. Helmut Kohl

Unsuccessful constitutional complaints concerning the post-mortem personality right of former Federal Chancellor Dr.Helmut Kohl

Press Release No. 108/2022 of 15 December 2022

Orders of 24 October 2022 - 1 BvR 19/22, 1 BvR 110/22

In orders published today, the First Chamber of the First Senate of the Federal Constitutional Court did not admit for decision two constitutional complaints lodged by the widow and sole heiress (hereinafter: the complainant) of former Federal Chancellor Dr.Helmut Kohl(hereinafter: the testator). The constitutional complaints were directed against decisions of the civil courts concerning actions for cease and desist and the payment of compensation.

Facts of the case:

One of the constitutional complaints is directed against court decisions concerning an action that was initially brought by the testator and was continued by the complainant after the testator's death. In this action, the testator applied for a court order requiring the defendants to cease and desist the publication and dissemination of 116 passages of the book "Vermächtnis - Die Kohl-Protokolle" ("Legacy - The Kohl Transcripts"). In the challenged judgments, the Higher Regional Court (Oberlandesgericht) and the Federal Court of Justice (Bundesgerichtshof) held that the action was only in part well-founded.

The other constitutional complaint is directed against court decisions concerning a continued claim for compensation, after the testator's death, on the grounds of a violation of his personality right. In the context of the publication of the book "Vermächtnis - Die Kohl-Protokolle", the testator had sued the defendants for compensation in the amount of EUR 5 million. The Higher Regional Court rejected the action which - following the testator's death in the course of the appeal proceedings - was continued by the complainant as the testator's sole heiress. The appeal on points of law (Revision) to the Federal Court of Justice was unsuccessful.

Key considerations of the Chamber:

The constitutional complaints are not admitted for decision.

I. The constitutional complaint concerning the cease-and-desist action does not have sufficient prospects. As the testator's sole heiress, the complainant did have standing to lodge a constitutional complaint invoking the testator's personality right after his death. However, she failed to sufficiently substantiate her constitutional complaint.

1. Only living persons are holders of the general right of personality following from Art. 2(1) in conjunction with Art. 1(1) of the Basic Law (Grundgesetz - GG). After their death, persons are no longer protected by the general right of personality. By contrast, the mandate of protection arising from Art. 1(1) GG continues to apply even after a person's death. It would be incompatible with the constitutional guarantee of the inviolability of human dignity, which is the root of all fundamental rights and applies to all human beings, if a person could be degraded or humiliated after their death in a manner affecting their general right to respect for their person (Achtungsanspruch).

a) The protection afforded by the general right of personality is not exactly the same as the protection afforded under Art. 1(1) GG. Rather, in its established case-law, the Federal Constitutional Court has emphasised that human dignity is distinct from the general right of personality. In cases of conflict between human dignity and freedom of expression, human dignity always prevails and there is no need for a balancing of interests, whereas in conflicts between freedom of expression and the general right of personality, the conflicting interests must generally be balanced against one another. Notwithstanding the extent to which a deceased person is entitled to have their human dignity respected in a given case, the protection afforded by this right cannot be more extensive than the protection of the honour of living persons.

b) It is true that statements may have considerable adverse effects on the general right of personality if they are falsely attributed to a person, or if they are rendered in an incorrect, distorted or flawed manner, especially when they are presented as quotes. However, a violation of the inviolable core of human dignity can only be found if a person is degraded or humiliated in a particularly offensive manner that violates either their general right to respect for one's person, which is afforded to every person for their own sake, or the moral, personal and social image (Geltungswert) they have acquired through their life's work.

2. The complainant failed to demonstrate that the publication of the challenged passages in the book degraded or humiliated the testator in a manner that violated his general right to respect for his person under Art. 1(1) GG. In any case, the moral, personal and social image acquired by the testator through his life's work has not been violated to such a degree that it would affect the core of human dignity. The testator voluntarily divulged memories from his time as a political leader to a journalist who was contractually bound to prepare a draft of his memoirs. The publication of this content does not affect the innermost core of the testator's personality. Measured against the constitutional standard of review, the challenged judgments are not objectionable. Both the Higher Regional Court and the Federal Court of Justice based their judgments on decisions of the Federal Constitutional Court regarding the scope of the post-mortem right of personality following from Art. 1(1) GG. The Federal Court of Justice correctly held that the publication of the book passages in the present case did not violate the human dignity core of the general right of personality. It stated that calling the image acquired by the testator through his life's work into question did not amount to such a violation. This is not objectionable under constitutional law.

II. The other constitutional complaint, which concerned a claim for compensation that was continued, after the testator's death, on the grounds of a violation of his personality right, is unfounded.

1. Neither the general right of personality afforded to living persons nor the protection of human dignity afforded to the deceased gives rise to substantive claims, determined by the affected person, to be compensated for violations by private actors. It is for the legislator to establish and implement an appropriate concept of protection here. In this respect, the legislator generally has a margin of appreciation, assessment and manoeuvre, even if it is obliged to take measures to protect a legal interest. The same holds true when the civil courts fulfil the duty of protection in cases where the legislator has not regulated the matter in question.

2. Based on this standard, the courts did not violate the state's duty of protection following from Art. 1(1) GG by rejecting the action for compensation that was brought by the complainant, as the testator's sole heiress, with the aim of remedying a violation of the right of personality that arose when the testator was still alive.

a) The mandate of protection following from the guarantee of human dignity does not require that a specific sanction be imposed for violations of a person's dignity. In particular, there is no constitutional principle requiring that a violation of human dignity must always give rise to a claim for compensation.

b) In accordance with the challenged judgment of the Higher Regional Court, the Federal Court of Justice, in its judgment challenged here, found that claims to compensation for violations of the general right of personality were not in principle inheritable. According to the Federal Court of Justice, this also applied in cases where an action in relation to the claim was already pending before the courts at the time the affected person - i.e., the person originally entitled to the claim - died. The court held that the purpose of the claim for compensation - which was primarily to provide satisfaction to the affected person - meant that such claims were not inheritable because a deceased person could no longer obtain such satisfaction. The Federal Court of Justice went on to say that the fact that such claims for compensation also served preventive purposes did not mean that human dignity required the continued existence of such claims after death.

c) These considerations are not objectionable under constitutional law. The guarantee of human dignity does not place the civil courts under any obligation to extend the civil law foundations upon which claims against violations of the right of personality may be based. This is not constitutionally required, at least not if the legal order provides for other possibilities to protect human dignity after a person's death. It is not evident in the present case that the testator's human dignity after his death was left unprotected against infringements by the defendants. The testator did have the right to request a court order requiring that the defendants cease and desist the publication when he was alive. This right was transferred to the complainant after the testator's death.