Slander against a member of parliament and his wife – prison sentence upheld by the Higher Regional Court of Karlsruhe

A 51-year-old woman from the Enzkreis district has been sentenced to prison for defamation offenses against Gunther Krichbaum, a member of the German Bundestag from Pforzheim, and his wife, Dr. Oana Krichbaum. The First Criminal Senate of the Higher Regional Court of Karlsruhe dismissed the defendant's appeal against a judgment issued by the Pforzheim branch of the Karlsruhe Regional Court on March 8, 2023, as unfounded. In that judgment, the defendant had been sentenced to a total of seven months' imprisonment, one month of which was deemed served due to unlawful procedural delays.

According to the findings of the Regional Court, the defendant had allegedly claimed in numerous instances on Facebook and in emails to various recipients, including newspaper editorial offices and members of the state and federal parliaments, that Dr. Oana Krichbaum had been involved in illegal child trafficking in Romania and that Gunther Krichbaum had attempted to cover this up by exploiting his political office. After the Krichbaums initially pursued civil action against the defendant, they filed a criminal complaint on April 23, 2018, regarding three Facebook posts published by the defendant on February 13, February 26, and March 26, 2018, which in all cases referred to Dr. Oana Krichbaum and in two cases also to Gunther Krichbaum. The defendant continued to make similar defamatory statements, even in her final statement at the appeal hearing before the Regional Court. The regional court also stated in its judgment that the defendants' claims were neither demonstrably true nor covered by freedom of expression or other legitimate interests of the defendants.

The Karlsruhe Regional Court sentenced the defendant to six months' imprisonment each for the three aforementioned offenses from 2018, which are the sole subject of the proceedings, and combined these individual sentences into a total prison term of seven months. The Regional Court declared one month of this sentence already served due to an unlawful delay in the appeal proceedings. The Regional Court did not suspend the execution of the total prison term because it did not consider the defendant to have a positive prognosis for future criminal behavior, as she had not been deterred by either civil proceedings or the previous criminal proceedings from continuing to make defamatory statements about the Krichbaum couple.

In the appeal proceedings, the First Criminal Senate of the Higher Regional Court was required to review both the content of the Regional Court's written grounds for judgment and – insofar as raised by the defendants' defense – the proceedings before the Regional Court for any legal errors that might have affected the decision. The Senate found no such legal errors on which the Regional Court's judgment was based. In particular, it did not consider the offenses to be time-barred and did not object to the rejection of the defense's supplementary motions for evidence. The fact that a witness's email was read aloud during the main hearing instead of her testimony had clearly not affected the content of the Regional Court's judgment. The Regional Court correctly considered the defendants' fundamental right to freedom of expression. The Regional Court's sentencing – including the decision not to suspend the sentence – was also not subject to legal challenge on appeal.

No further legal recourse is available. The judgment of the Karlsruhe Regional Court is now legally binding.

Higher Regional Court of Karlsruhe, decision of 15 November 2023, file number: 1 ORs 34 SRs 692/23

Lower court: Karlsruhe Regional Court – Pforzheim External Criminal Chamber, judgment of March 8, 2023, case number: 18 Ns 91 Js 4804/18

Background:

The exact charge against the defendant is defamation in three cases pursuant to Section 186 of the Criminal Code (StGB), two of which are in conjunction with defamation against persons in political life pursuant to Section 188 StGB. 

The relevant penal provisions of the German Criminal Code (StGB) are as follows:

§ 186 Defamation

Anyone who asserts or disseminates a fact concerning another person which is likely to make that person contemptible or to lower their standing in public opinion shall, unless that fact is demonstrably true, be punished with imprisonment for up to one year or with a fine, and, if the act is committed publicly, in an assembly or by disseminating content (Section 11 Paragraph 3), with imprisonment for up to two years or with a fine.

§ 188 Insult, slander and defamation directed against persons in political life

(1) If an insult (§ 185) is committed against a person active in the political life of the people, either publicly, in an assembly, or by disseminating content (§ 11 paragraph 3), for reasons related to the insulted person's position in public life, and the act is likely to significantly impede their public activities, the penalty shall be imprisonment for up to three years or a fine. The political life of the people extends down to the municipal level.

(2) Under the same conditions, defamation (§ 186) shall be punishable by imprisonment from three months to five years and slander (§ 187) by imprisonment from six months to five years.

§ 193 Protection of legitimate interests

Critical judgments about scientific, artistic or commercial achievements, as well as statements or actions under Section 192a, which are undertaken to enforce or defend rights or to protect legitimate interests, as well as reprimands and rebukes by superiors against their subordinates, official reports or judgments by a civil servant and similar cases are only punishable insofar as the existence of an insult is evident from the form of the statement or from the circumstances under which it occurred.