Slander to the detriment of a member of the Bundestag and his wife – prison sentence confirmed by the Higher Regional Court of Karlsruhe

A 51-year-old woman from the Enz district has been sentenced to prison for defamation of Pforzheim Member of the Bundestag Gunther Krichbaum and his wife Dr. Oana Krichbaum. By decision of November 15, 2023, the 1st Criminal Senate of the Karlsruhe Higher Regional Court dismissed as unfounded the defendant's appeal against a judgment of the Pforzheim Criminal Division of the Karlsruhe Regional Court dated March 8, 2023. This judgment sentenced the defendant to a total of seven months' imprisonment, one month of which is considered served due to procedural delays contrary to the rule of law.

According to the findings of the Regional Court, the defendant had alleged in numerous Facebook posts and in emails to various recipients, including newspaper editorial staff and members of 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 initially pursuing civil action against the defendant, the Krichbaum couple 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, all of which referred to Dr. Oana Krichbaum and, in two cases, to Gunter Krichbaum. The defendant continued to make similar defamatory allegations, even in her final statement at the appeal hearing before the Regional Court. In its judgment, the Regional Court also found that the defendants’ allegations 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 offenses mentioned in 2018, which are the sole subject of these proceedings, and combined these individual sentences into a total prison sentence of seven months. The Regional Court declared one month of this sentence to have already been served due to a procedural delay that occurred during the appeal proceedings, which violated the rule of law. The Regional Court did not suspend the execution of the total prison sentence because it did not consider the defendant to have a positive criminal prognosis, as neither the civil proceedings nor the previous criminal proceedings had deterred her from continuing to make defamatory allegations about the Krichbaum couple.

In the appeal proceedings, the First Criminal Senate of the Higher Regional Court had to examine both the content of the Regional Court's written reasons for the judgment and – to the extent challenged by the defendants' defense – the proceedings before the Regional Court for legal errors that may have affected the decision. However, the Senate did not identify any 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 defense's rejection of applications for auxiliary evidence. The fact that a witness's email was read out at the main hearing instead of her being questioned clearly had no effect on 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 failure to grant a suspended sentence – is also not objectionable under the law of appeal.

No further appeal is available. The Karlsruhe Regional Court's ruling is now final.

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

Lower court: Regional Court of Karlsruhe – Pforzheim Criminal Division, judgment of 8 March 2023, file 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 were committed in conjunction with defamation against political figures pursuant to Section 188 StGB. 

The relevant criminal provisions of the Criminal Code are:

§ 186 Defamation

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

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

(1) If an insult (Section 185) is committed against a person involved in the political life of the people, publicly, in a meeting, or by disseminating content (Section 11(3)), for reasons related to the insulted person's position in public life, and if the act is likely to significantly impede his or her public activities, the punishment 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 circumstances, slander (Section 186) shall be punished by imprisonment from three months to five years and defamation (Section 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 acts pursuant to Section 192a which are made to exercise or defend rights or to safeguard legitimate interests, as well as allegations and reprimands by superiors against their subordinates, official reports or judgments by an official and similar cases are only punishable insofar as the existence of an insult is evident from the form of the statement or the circumstances under which it was made.

§ 194 Criminal complaint

(1) Insults shall only be prosecuted upon application. […]