Bad for presidents, good for the people
In a democracy, everyone is normally equal before the law. The German Basic Law provides for this in Article 3, Paragraph 1. But in the legal jungle some are still more equal than others — as demonstrated by Paragraph 103 of the penal code book, entitled "Insults to Bodies and Representatives of Foreign States." This law is based on the old paragraphs from 1871 regarding lese majesty — insulting the sovereign. Anyone convicted on the basis of this paragraph gets up to five years in jail, while someone who insults his neighbor gets off with a fine, or at worst — in very exceptional instances — a year in jail. But why should people receive a different punishment for insulting a head of state than for insulting an ordinary citizen?
This New Year's Day, the law has finally been abolished. The reason for doing it now was the brouhaha about a libelous poem by the satirist Jan Böhmermann. The Turkish president, Recep Tayyip Erdogan, felt he had been personally insulted, and responded by demanding that Böhmermann be prosecuted on the basis of Paragraph 103. Politicians from every German party rejected the idea that this paragraph should provide a foreign ruler with such a powerful legal tool — especially one so heavily criticized for his harsh dealings with the media, judiciary and members of the opposition in his own country. It was therefore only logical that at the beginning of July 2016 the Bundestag voted unanimously to cull the law.
Read more — Böhmermann: How a German satirist sparked a freedom of speech debate
Protecting bloody dictators
This should, however, have happened long ago. Paragraph 103 has frequently played an inglorious role in the legal history of modern Germany: over criticism of the Shah of Iran, for example, or the Chilean dictator Augusto Pinochet. The fact that the German justice system protected the heads of two bloody dictatorships but punished demonstrators and journalists for expressing their opinions was a scandal: It perverted the understanding of the roles of perpetrator and victim.
There were several other cases of state prosecutors initiating a purely preventative investigation on the basis of this law, as for example when a FEMEN activist, who had written "F--- Dictator" on her naked chest, ran towards Russia's President Putin at the Hannover Trade Fair in 2013. Or 10 years earlier, when a butcher in Marburg described the then US President George W. Bush as "clearly bonkers" and "bloodthirsty" because of his involvement in the Iraq War. In both cases — as in many others — the affected politicians declined to pursue legal action.
Paragraph 103 evolved from the traditions of an authoritarian state. It repeatedly turned the German justice system into the henchman of dictators, and it also made the German government vulnerable. It's a good thing for all of us that it's gone!