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As a result of the negative decision which the Alliance for Democracy had to accept from the >Berlin Public Prosecutor’s Office, this example of politicised press will not be brought to a close. The editor will therefore submit a constitutional complaint. The text is as follows:

Constitutional complaint

by Mr. Simon G. Jakob, Bergheimer Str. 49, 69115 Heidelberg

- Complainant -

Legal representative: Lawyers Jakob & Kollegen, Bergheimer Str. 49, 69115 Heidelberg


the >decision of the Supreme Court of Berlin of 27.02.2012, received on 15.03.2012, AZ: 3 Ws 92/12

The subject of the complaint is the violation of the right to due process of law (Art. 101 I 2 GG).


I. Introduction

With the above decision, the Supreme Court rejected a complaint enforcement application (§ 172 StPO) of the undersigned as inadmissible. The undersigned was not the injured party in the sense of § 172 StPO, and therefore not entitled to make a complaint enforcement application. The grounds of the >complaint enforcement application were not addressed.

By this decision, the fundamental right of the complainant to due process of law (Art. 101 I 2 GG) has been violated, since the decision was made arbitrarily and without foundation in the corresponding legal regulations (§ 172 StPO). The arbitrary rejection as inadmissible, without addressing the grounds of the complaint, constitutes an act of refusal of justice, against which Art. 101 I 2 GG is intended to provide protection.

The complaint enforcement application is based on a >criminal complaint by the undersigned against the Federal Chancellor and the Federal Government on the grounds of breach of trust (§ 266 StGB). The Chancellor financed partly advertising (“Letter to fellow citizens” of 17.11.2010) from the general national budget (€ 2.763 million), thereby misappropriating budget funds to the detriment of the citizens of the Federal Republic of Germany.

The investigation was discontinued, and the complaint enforcement application made against this decision - as stated above – was rejected as inadmissible.

II. Facts of the matter

1. Advertising campaign of the Chancellor

One day after the end of the CDU Party Conference (16.11.2010), the Chancellor Dr. Angela Merkel addressed herself to her “fellow citizens” in a >letter.

This letter was published over the period from 17.11. to 22.11.2010 in regional and national daily newspapers (e.g. Frankfurter Allgemeine Zeitung), tabloids (e.g. Bild), periodicals (e.g. Spiegel) and online (e.g. Web portal of GMX). According to the information of the Federal Government, the publication of the letter in all the above media cost €2.763 million.

These funds were taken from the general national budget.

In the letter, the Chancellor expresses her thanks to the public: “Thank you dear fellow-citizens, you have made Germany the country which has best weathered the worldwide economic crisis.” The letter then continues in praise of the CDU-FDP coalition government.

This “letter” was already the subject of a parliamentary question by the Bündnis 90/Die Grünen faction. The answer of the government is available as >Bundestag printed matter (BT printed matter 17/4158).

In the opinion of the undersigned, this letter is no more than pure party advertising.

2. Criminal complaint and other process progress

The undersigned lodged a criminal complaint against this action on 06.09.2011. In its letter of 19.10.2011, the Berlin Public Prosecutor’s Office stated that the investigative proceedings under § 170 II StPO had been discontinued. The complaint lodged against this action was also rejected by the Berlin Public Prosecutor’s Office in its letter of 30.01.2011. The complaint enforcement application was also rejected. The corresponding decision of the Berlin Supreme Court of 27.02.2012 is the subject of this constitutional complaint.

The criminal complaint and the other applications, as well as the relevant decisions of the Public Prosecutor's Office and of the Supreme Court are attached as appendices.

III. Admissibility of the constitutional complaint

1. Time limit

The month’s time limit under § 93 I BVerfGG has been observed. The decision of the Supreme Court was delivered to the undersigned on 15.03.2012.

2. Exhaustion of legal recourse

The legal process was exhausted. There is no appeal against the decision of the Supreme Court.

3. Right of complaint

The complainant is himself, presently and directly injured by the contested decision of the Berlin Supreme Court. His fundamental rights to due process of law have been violated (see the text relating to Grounds). The right of complaint is not a problem with regard to judicial decisions, because in contrast to an abstract norm, it is addressed directly to the respective complainant.

IV. Grounds of the constitutional complaint

The contested decision of the Berlin Supreme Court violates the fundamental right of the complainant to due process of law (see 1.), and this decision is based on this breach of the law (see 2.).

1. Violation of the right to due process of law

The right to due process of law is enshrined in Art. 101 I 2 GG. The case law of the Constitutional Court deals primarily with cases in which courts arbitrarily misconstrue and misapply the procedural rules of jurisdiction in the strict sense. Such an infringement against procedural rules of jurisdiction does not apply here, since the Supreme Court was locally and functionally responsible for the disputed complaint enforcement application.

The scope of application of Art. 101 I 2 GG is however not limited to the procedural rules of jurisdiction in the strict sense, but also extends to any other acts of refusal of justice which are rooted in an arbitrary application of procedural rules. This was expressly acknowledged by the Federal Constitutional Court for the case that an appellate court exercises powers which in themselves are the province of the higher court (Maunz/Bürig Art. 101 GG Rn. 41). Here the decision is handed down by a court which is functionally responsible, although it thereby exceeds the powers conferred under the respective procedural rules.

As a consequence or vice versa, the scope of application of Art. 101 I 2 GG also extends to cases of failure to exercise powers, i.e. in this case the failure to carry out any review of the grounds by arbitrarily citing the alleged inadmissibility of the complaint enforcement application. This is undeniably a case of refusal of justice. The right to due process of law was granted only in the formal sense. The protection of fundamental rights however is not aimed at a merely formal observation of basic rights or similar claims to justice, but at the effective and material protection of the respective holder of such rights, so that the arbitrary rejection of an application as inadmissible violates the right to due process of law.

Not every breach of procedural rules is capable of control in the context of the constitutional complaint, because the purpose of the constitutional complaint is not to install the Federal Constitutional Court as a “supreme court of review”. Therefore, the Federal Constitutional Court restricts the constitutional complaint in the field of rights of justice to an arbitrary control. It is not a matter of the subjective motivations of the judge, but only whether the decision can (still) be verified on the basis of the law (Maunz/Dürig Art. 101 GG Rn. 52).

One such case of arbitrariness is present here. § 172 StPO stipulates that a complaint enforcement application against the discontinuation of investigative proceedings may be made only by the person who is injured by the offence. The law thereby intends to prevent persons not involved from being able, possibly against the will of the injured party, to force the institution of investigative proceedings. This usually involves a relatively narrow definition of those entitled to make such applications. This does not have to be the case however.

In the case of breach of trust (§ 266 StGB), all persons whose funds have been misappropriated are entitled to make application under § 172 StPO. If the funds of a limited partnership are misappropriated for example, all partners are eligible to make application, even though – such as in the case of publicly traded companies – this may involve a number of people.

The same also applies to other legal entities. Those persons represented by the legal entity are entitled to make application. This also applies in the event that funds of the Federal Republic of Germany are misappropriated. In this case, all citizens of the Federal Republic of Germany are eligible to make application.

The Supreme Court on the other hand believes that if all citizens are affected, this means that there is no specific, individual effect per se, i.e. the property of being injured may be denied. However, no basis can be found in the law for such an interpretation. The law does not ask whether other third persons are injured or how many people are injured. It only asks whether the applicant has been injured. Whether other people have been injured or not in no way affects the injured property of the applicant. If all citizens of the Federal Republic of Germany have been injured, all citizens of the Federal Republic, including the undersigned, are entitled to make application. This is not superfluous litigation independent of the property of being injured, as the Supreme Court believes, but an application directly linked to the property of being injured, as envisaged by law.

Since the Supreme Court rejected the complaint enforcement application in an arbitrary and unjustifiable way as inadmissible, the right of the undersigned to due process of law has been violated.

2. Basis of the decision on the legal violation

The rejecting decision of the Supreme Court is also based on the above violation, because the Chancellor is punishable according to § 266 StGB on the grounds of misappropriation of funds from the national budget for party advertising (“Letter to fellow citizens”). If the Supreme Court had concerned itself with the merits of the complaint enforcement application, it would have acceded to it, so that investigative proceedings would have been instituted against the Chancellor.

a. Character of the letter as party advertising

The content of the “letter” consists of party advertising: “Now we must look forward. Great tasks lie before us. The Christian-liberal government will face these tasks with decisiveness.” The obvious purpose of the letter is to advertise the Christian-liberal government coalition.

In detail:

  • The letter is of an advertising character. The (alleged) resolution of the debt crisis is represented in very positive terms (“marketing language”):

    “You have made Germany the country which has best weathered the worldwide economic crisis. ... The world looks at our country and speaks of a miracle.”

  • The advertising refers explicitly to the coalition parties:

    “Great tasks lie before us. The Christian-liberal government will face these tasks with deci-siveness.”

    The wording is not aimed generally at the responsible constitutional body (Federal Government), but makes an explicit party reference to the “Christian-liberal government”. This expresses the intention of the parties involved in the governing coalition to want to stay in office, or even to have to stay in office, just so that the problems can be solved. Indirectly this denies that all other parties are unequal to this task.

  • The advertising campaign has no informational content, but is limited to general empty platitudes and general statements (safeguarding of finances, education, energy and health), which of course are in any case the constitutional obligations of the government and Chancellor.

  • In the visual layout, the image part (Chancellor) stands in the foreground. This is intended to direct empathy to the party chairperson of the CDU. The low factual content, which is visually disproportionate to the size of the advertisement, confirms the advertising intention.

  • The advertising campaign started one day after the end of the CDU Party Conference. The German Chancellor and leader of the CDU are one and the same person, so that the clear party political motivation is obvious.

In addition to the substantive analysis, the accompanying circumstances also clearly confirm the purely party-political motivation:

  • The advertising campaign started one day after the end of the CDU Party Conference.

  • The advertising campaign was the starting signal for the unusual state parliament election marathon of 2011, with elections in seven states (in February: Hamburg; in March: Baden-Württemberg, Rheinland-Pfalz, Sachsen-Anhalt; in May: Bremen; in September: Berlin, Mecklenburg-Vorpommern) and the local elections in Hessen (March 2011).

  • A constitutional organ (Chancellor) and party organ (party chairperson) are united in “personal union”.

b. Financing of party advertising from funds of the general national
budget as criminal breach of trust

Party advertising is of course legitimate, and an essential component of public discourse and public opinion-forming, particularly in an indirect, party-oriented democracy. The financing of party advertising however is the responsibility of the respective parties and must be borne by them (parties are provided with appropriate financial resources for this purpose through the state funding of political parties). Party advertising may not therefore be paid for out of general budget funds, which serve exclusively national purposes, and not private party objectives.

The misuse of general budget funds for party advertising is not only a politically questionable excess of so-called “public relations”, but is also criminally relevant.

The Federal Government and the Chancellor have to ensure the constitutional use of tax funds. They act on behalf of the taxpayer as “trustees”. The diversion of tax funds from the general budget into a private “party budget” is incompatible with the fiduciary responsibility of the Federal Government and the Chancellor. The amount of € 2.8 million far exceeds the limit of what is legally tolerable and even reasonable.

The Parties Act defines the conditions under which political parties may receive funds from the general national budget and use them for their own purposes (§ 18 ff. PartG). Outside of this legislation, access to the national budget is not allowed. In this respect the provisions of the Parties Act restrict the otherwise existing broad budgetary discretion of the Federal Government. There is no “self-service discretion” of political parties by the party-tactical exploitation of political offices (here: Chancellor/Ministers), and particularly not when - as here – such exorbitant sums (€ 2.763 million) are involved. Party advertising must accordingly not be funded from general budget funds.

By withdrawing funds from the national budget for inappropriate purposes, the Federal Republic of Germany suffers financial loss, which weighs particularly heavily in times of the debt crisis and the general budgetary constraint. By virtue of their office and their oath of office, the Chancellor and the other members of the government are responsible for this financial loss. The criminal liability of office-holders for misuse of public funds to the detriment of the public purse is generally recognised in law (see BGH of 15.06.1954 - 2 StR 128/54).

c. Legal interpretation of the Federal Constitutional Court

The criminal law relevance of the situation described above is also supported by the interpretation of the Federal Constitutional Court. Although this interpretation does not relate directly to the criminal issues under dispute here, it does shed light on the problem of party advertising disguised as public relations at election campaign times from the public, consti-tutional point of view, which in turn allows conclusions to be drawn about the criminal clas-sification of the facts.

According to this interpretation, public relations work is subject to constitutional restrictions during election campaigns (BVerfG, verdict of 02.03.1977, Az. 2 BvE 1/76). Public relations work must not be used as an instrument to influence the outcome of the election. The subject of the cited constitutional decision was an advertising campaign of the then Socialist-Liberal Government, in which it described its performance in all major political areas. The advertisements ended with: “The interim review shows: we are on the right track. Performance deserves confidence. We are safeguarding the future.” The tone and content of that advertising campaign are comparable to the campaign under dispute. According to the legal interpretation of the Federal Constitutional Court, public relations work must avoid the impression of promotional influence in favour of any party (BVerfG idem, Rn. 70).

This restriction is clearly exceeded by the advertising campaign under dispute. It is materially no longer public relations work but party advertising, which should be financed by the own financial resources of the respective parties. This classification/demarcation is also relevant for criminal law, and therefore breaches the bounds of criminality.

The legal interpretation of the Federal Constitutional Court concerned a different situation, in that it was a campaign of the Federal Government in the run-up to the national elections, while the campaign of the Federal Government in this case concerns the run-up to the state parliament election marathon of 2011 (Baden-Württemberg, Berlin, Bremen, Hamburg, Mecklenburg-Vorpommern, Rheinland-Pfalz, Sachsen-Anhalt). The principles of the ruling are nevertheless applicable. The Constitutional Court of the state of Rheinland-Pfalz has already considered the interaction between state and national level in the direction of state -> Federal Government. The state governments are accordingly subject essentially to the same restrictions in terms of the national election campaign as established by the Federal Constitutional Court in its key (VerfGH RLP of 23.10.2006 – VGH O 17/05). This must also apply for the direction Federal Government -> state, i.e. the intervention of the Federal Government in the state parliament election campaign, because the state parliament election campaign is often overshadowed by national political topics. The national political mood is crucial for state parliament elections. The advertising campaign of the Chancellor was designed to translate their sympathies at the national level to the state level, in order if possible to secure the power base in the Bundesrat (upper house).

The cited key decision of the Federal Constitutional Court dates from the year 1977. This shows that the misuse of public relations work for party advertising and thus the misappropriation of funds from the general national budget for party purposes is not a new problem, but a structural problem. Unfortunately, the ruling of the Federal Constitutional Court from 1977 has not led to a disciplining of politics. So-called public relations work has rather been politically instrumentalised on a grand scale, by which the corresponding constitutional organs are discredited and public funds misused and misappropriated for ultimately private party purposes. The advertising campaign of the Chancellor under dispute is insofar only an example. A clear signal from Karlsruhe to politics is needed.

III. Requirements for the acceptance of the constitutional complaint

The requirements for the acceptance of the constitutional complaint have been met. The legal questions raised are of fundamental constitutional significance.

With kind regards
Simon G. Jakob

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