From eurozone turmoil to refugee crisis via diplomatic tensions with Russia, Angela Merkel has in recent years managed to weather more than one global storm. Yet this week an obscure paragraph in the German penal code has landed the chancellor in such an awkward predicament that some think it may lead to her eventual downfall.
Merkel is currently under pressure to give her verdict on whether Germany’s state prosecutor should start proceedings against the TV presenter Jan Böhmermann, after the Turkish president Recep Tayyip Erdoğan requested the comedian be prosecuted for allegedly defaming him in a “smear poem”.
The legal oddity that allows Turkey’s president to do so is paragraph 103 of the German criminal code, concerning insults against organs or representatives of foreign states – a paragraph so rarely used that even many seasoned lawyers and politicians had never heard of it until this week.
“Paragraph 103 has been around for ever, but has rarely been used,” said Holger Heinen, a lawyer who completed his PhD on the subject.
Triggering the law requires both a notification from the offended party and an authorisation from the government. The former exists now that Erdoğan has personally registered his displeasure. The latter is Merkel’s dilemma.
If she gives consent for the trial to go ahead, she risks being seen as the puppet of Turkey’s strongman leader and a weak guardian of free speech. If she stops the proceedings, she gives Turkey a reason to cancel the refugee swap deal with the EU, which has recently eased political pressure on the German chancellor.
Paragraph 103 goes back to the days when European diplomacy was still conducted by easily offended monarchs. In the penal code of 1871, lèse-majesté – an offence against the dignity of a reigning sovereign – was punishable with a lifelong spell in jail. Under Kaiser Wilhelm II, lèse-majesté was transformed into a broader law also forbidding denigration of non-royal foreign heads of state.
Insulting foreign heads of state remains a criminal offence not just in Germany but also in Italy, Poland and Switzerland. Denmark, the Netherlands, Norway and Spain have remnants of the lèse-majesté laws for royals in their criminal codes.
In most of the UK, defamation was decriminalised as recently as 2009. The Treason Felony Act 1848 – which makes it a criminal offence, punishable by life imprisonment, to advocate abolition of the monarchy in print, even by peaceful means – remains technically in force, but has not been deployed in a prosecution since 1879.
The suspension of the old penal code in postwar Germany between 1945 and 1953 may have provided an opportunity to reconsider the lèse-majesté paragraph – had the British administration, one of the occupying authorities, not triggered it.
In 1949 the news weekly Der Spiegel, published in the British-occupied zone, was banned for a week for reporting in a “broadly insulting tone” on the coronation of the Dutch queen Juliana. What exactly had offended the Dutch royal family never emerged, though the Spiegel article did make reference to Juliana’s husband’s membership of the SS.
More recently, paragraph 103 has become known in Germany as the “Shah paragraph”, after the Iranian leader Mohammed Reza Pahlavi tried to get demonstrators prosecuted after a visit in 1967. The German interior minister at the time flew to Tehran and managed to persuade Pahlavi to drop the matter.
The last time it troubled German courts was six years ago, when a Bavarian judge ruled that a banner showing Pope Benedict with a red ribbon and condoms on his fingers had been unfairly removed from a Christopher Street Day parade in Munich.
In the aftermath of the Böhmermann affair, senior politicians from the Social Democrats, the Greens, and Alternative für Deutschland have campaigned for the paragraph to be deleted from the criminal code at the first opportunity.
“This is an antiquated rule,” said Thomas Oppermann, party faction leader of the SPD, the junior member in Angela Merkel’s coalition. “It no longer suits the modern age.”
The deletion could take place as soon as in two weeks – which would still be too late to solve Merkel’s dilemma. “The German penal code can be changed quickly, but not quickly enough to let off Böhmermann,” said Ralf Höcker, a media lawyer.
Höcker told the Guardian he expected the trial to go ahead, but that it was unlikely the comedian would end up in jail. Given that Böhmermann has no previous convictions, he would more likely be asked to pay a small fine or make a donation to charity.
