X – x – x – x – x T – e – x – t – – – – – – – – – How the Frankfurt “soldiers’ judgments” wrote a piece of legal history 25 years ago.
Frankfurt. And then the office burned. It was a shock, says Frankfurt lawyer Michael Hofferbert (75). At first he did not associate the fire in his office at Schumannstrasse 10 (Westend) with “this matter”. When investigators found empty petrol cans at the scene of the fire, it was clear: it was arson. It was all almost 33 years ago.
This matter, with which Hofferbert dealt professionally at the time, was an explosive one in many ways – legally, politically, socially. It was about nothing less than the provocative quote by the author Kurt Tucholsky “Soldiers are murderers”, which was already an excitement when it was published in August 1931 and caused violent legal disputes for decades from the mid-1980s.
25 years ago, a ruling by the Federal Constitutional Court caused a high point in the case law as well as in the social debate. The sentence “soldiers are murderers” can be covered by the right to freedom of expression and then does not constitute an insult to individual soldiers or the armed forces (AZ: 1 BvR 1476/91 and others) – so the Federal Constitutional Court in Karlsruhe ruled on November 7th Decision published in 1995.
This fundamental decision has marked the broad limits of freedom of expression to this day. She did not meet with love everywhere.
The constitutional judge Dieter Grimm, who was then responsible for the area of freedom of expression, was threatened and had to be placed under police protection at times. Before the Karlsruhe court came to this conclusion, the Tucholsky quote had preoccupied the Frankfurt courts across all instances. The Frankfurt “soldiers’ judgments” are a piece of legal history.
A heated public debate was sparked by the explosive sentence during a panel discussion in a Frankfurt school. A doctor present there and a former medical officer candidate addressed a youth officer as follows: “Every soldier is a potential murderer – you too, Mr. xyz. There is a drill to murder in the Bundeswehr.”
The sentence hit like a bomb. The doctor was hostile, reported, and charged. Criminal charge: sedition, insult. Michael Hofferbert defended the doctor in court and through all instances up to the higher regional court, which finally referred the issue back to the regional court, where the now legendary Frankfurt criminal judge Heinrich Gehrke was dealing with it. At the hearing, defense attorney Michael Hofferbert, supported by experts, presented the methods of military drills. The public prosecutor’s office used experts from the Bundeswehr, a general and a senior ministerial official who all agreed that the Bundeswehr was solely responsible for deterrence and pursue immediate national defense, but would never wage war outside the Federal Republic. Michael Hofferbert remembers that the Bundeswehr had presented three high-ranking staff officers from the three branches of service as witnesses, who were supposed to expose the quotation with the thesis of deterrence as false and malicious.
That, as Michael Hofferbert remembers today, was the hour of the astute lawyer Gehrke. “The presiding judge asked the first of the three witnesses the simple and obvious question, what would happen now and how he would act if the deterrent failed and war did break out.
Gehrke did not allow himself to be dissuaded from this question by the fact that the witness repeated the assertion that the military armament and the presence of weapons of mass destruction serve exclusively to avoid war, so that the soldiers of the Bundeswehr could absolutely not be potential murderers. The judge insisted on answering his question, the witness, according to Hofferbert, had literally stammered. “Obviously irritated by the persistence of the court, he finally declared that he would step down in such a case.” There was a lot of laughter in the audience.
After a total of five different judgments by the district court, regional court and higher regional court, the legal dispute ended in 1992 with a suspension due to minor guilt. In parallel proceedings, the Federal Constitutional Court had meanwhile qualified the Tucholsky words as covered by freedom of expression.
Heinrich Gehrke was severely threatened after the trial. Michael Hofferbert, the office was burned down. Michael Hofferbert sees one reason for the bitterness with which people argued about what to say at the time in an almost collective stance of repressing a society traumatized by the horrors of the war. “This attitude of repressing was the highly taboo life lie in matters of military violence in post-war Germany for decades,” said Hofferbert.
Even today there is still no serenity in this matter. The sentence “soldiers are murderers”, says the Protestant military bishop Bernhard Felmberg, would mean that Bundeswehr soldiers “would very well refer to themselves. They would feel offended in their professional identity and honor.” He could understand this well. Even if Bundeswehr soldiers would have to use violence as an extreme means: “That is why the soldiers of the Bundeswehr are not murderers – neither in the legal sense nor in terms of their mandate or their intention,” said Felmberg.
–
