## Facts

- Jürgen Rieger, a German lawyer and organizer of far-right events, sought permission to hold recurring annual public assemblies in Wunsiedel, Germany, to commemorate Rudolf Hess, Adolf Hitler’s deputy in the Nazi Party from 1933 to 1941.
- The assemblies were planned as public tributes to Hess in Wunsiedel, a location closely linked to Hess’s burial and thus highly symbolic for participants and onlookers.
- In 2005, the German legislature enacted Criminal Code § 130(4) (StGB), providing criminal penalties for anyone who publicly or in an assembly disturbed the public peace in a manner that violated the dignity of victims by approving, glorifying, or justifying National Socialist rule.
- Local authorities banned the requested 2005 assembly on public-security grounds, relying on Assembly Act § 15(1) (VersG) and reasoning that the assembly would foreseeably involve conduct falling within § 130(4) StGB.
- Rieger challenged the ban and argued that § 130(4) StGB violated the Basic Law, especially Article 5(1) (freedom of expression), and that the provision was unconstitutional at least as applied to the planned Hess tribute.
- The Bayreuth Administrative Court rejected his complaint; the Bavarian Administrative Court and the Federal Administrative Court also dismissed his challenges, leaving the ban in place.
- Rieger filed a constitutional complaint with the Federal Constitutional Court, attacking both § 130(4) StGB and the assembly ban based on that provision; he died shortly before the Court issued its decision, but the Court proceeded due to the importance of the constitutional questions.

## Issues

1. Whether Criminal Code § 130(4) StGB, which targets approval, glorification, or justification of National Socialist rule, violates Article 5(1) of the Basic Law protecting freedom of expression.
2. Whether § 130(4) StGB can be a constitutionally valid limit on speech even though it is not a “general law” in the usual sense contemplated by Article 5(2) of the Basic Law.
3. Whether banning the planned Wunsiedel assembly under Assembly Act § 15(1) based on the expected commission of § 130(4) StGB violated Articles 5(1) and 8(1) (freedom of assembly) of the Basic Law.
4. Whether § 130(4) StGB violates Article 103(2) (certainty in criminal law) or Article 3(3) (ban on discrimination) of the Basic Law.

## Decision

- The Federal Constitutional Court rejected the constitutional complaint as unfounded.
- The Court held that § 130(4) StGB is compatible with Article 5(1) and 5(2) of the Basic Law, even though the provision is not a “general law” in the usual doctrinal definition.
- The Court upheld the assembly ban, concluding that authorities could rely on § 15(1) VersG to prevent a concrete threat to public safety where an assembly would predictably involve conduct punishable under § 130(4) StGB.
- The Court also rejected challenges based on Article 103(2) and Article 3(3), finding the provision sufficiently definite and not an unconstitutional form of discrimination.

## Legal Principles

- Article 5(1) protects the expression of opinions, including offensive and politically extreme viewpoints, but Article 5(2) permits statutory limits, classically through “general laws,” youth-protection provisions, and rights of personal honor.
- § 130(4) StGB is not a “general law” under the traditional test because it addresses a specific subject matter: public approval, glorification, or justification of National Socialist rule.
- Despite that, Article 5 permits a narrow, historically specific exception for laws that set boundaries on propagandistic condonation of the National Socialist regime, given Germany’s constitutional order formed as a counter-model to National Socialism and in response to its crimes.
- Recognition of this exception does not authorize a broad content-based prohibition on right-wing radical or National Socialist ideas simply because of their ideological message; restrictions must be tied to defined harms and narrow statutory elements.
- § 130(4) StGB is limited to speech that (i) occurs publicly or in an assembly, (ii) disturbs the public peace, and (iii) does so in a manner that violates the dignity of victims by approving, glorifying, or justifying National Socialist rule; these limiting elements were central to the statute’s constitutional acceptability.
- Under Assembly Act § 15(1), an assembly may be prohibited where there is a sufficiently specific and predictable risk of violations of criminal law that amount to a threat to public safety; the State need not wait for the crime to occur when the projected course of the event makes the risk concrete.
- Proportionality review requires a legitimate aim and a measure that is suitable, necessary, and balanced; in this setting, protecting public peace and the dignity of victims could justify a narrowly framed criminal prohibition and an assembly ban grounded in a concrete forecast of violations.
- The criminal-law certainty requirement in Article 103(2) is satisfied when the statutory language provides a workable standard for courts and foreseeable guidance for citizens; the Court found § 130(4) StGB sufficiently determinate, even though evaluative terms such as “public peace” require judicial application to facts.

## Conclusion

In the Wunsiedel Case, the Federal Constitutional Court upheld § 130(4) StGB and the related prohibition of a Rudolf Hess memorial assembly, holding that Germany’s Basic Law permits a narrow, historically linked exception allowing targeted limits on propagandistic glorification of National Socialist rule when the statute is confined to protecting public peace and the dignity of victims and when an assembly ban is based on a concrete expectation that the criminal provision would be violated.


Wunsiedel Case, BVerfGE 124 (2009)