“Volksschädling”: acquittal and freedom of expression

“Volksschädling” on a placard: acquittal upheld through three instances

A demonstrator called the then German Chancellor Olaf Scholz “Volksschädling” on a placard containing several political messages. He carried it at a demonstration in Ingolstadt on 24 April 2022 under the slogan “Endgültiges Maßnahmenaus”, calling for an end to the measures. Around 100 people were present when police seized the placard. The local court acquitted him. The prosecution’s appeal and further appeal on points of law were unsuccessful. The Bavarian Supreme Regional Court upheld the acquittal by judgment of 6 March 2025 (206 StRR 433/24, paragraphs 1 to 3, 7 and 31).

The central issue is freedom of expression: can a criminal conviction rest on a particularly hurtful word alone without examining its meaning in the political context? The BayObLG said no. It specifically criticised the regional court for classifying the term as a formal insult without adequately establishing its meaning and conducting the necessary balancing exercise. The acquittal was correct in its outcome, but that reasoning was flawed (paragraphs 7 to 16).

Article 5: freedom of expression also protects harsh criticism of those in power

Article 5(1) of the Basic Law protects everyone’s right to express and disseminate opinions in speech, writing and images. A value judgment does not fall outside that protection simply because it is polemical or hurtful. The BayObLG emphasises the particular weight of criticism of state power. At the same time, this does not permit every personal insult directed at a public office-holder (paragraph 10; Article 5(1) and (2) of the Basic Law).

As a rule, freedom of expression and personal honour must be balanced in light of the specific circumstances. Only narrowly defined exceptions, such as abusive criticism, formal insults or attacks on human dignity, can dispense with that exercise. Even classification within such an exception requires reasons. Labelling a statement “insulting” does not replace the constitutional assessment (BayObLG, paragraphs 11 to 13).

Why the historically loaded term did not lead to conviction here

For the BayObLG, the association of “Volksschädling” with the Nazi regime did not suffice to establish a criminal statement independently of its overall context. Where several meanings are possible, a conviction cannot simply adopt the incriminating interpretation without convincingly excluding other plausible interpretations (paragraphs 12 to 13).

The complete placard did not rule out an interpretation that the defendant was primarily criticising the Chancellor’s conduct in office as harmful to the population in his view. The court regarded this particular criticism of political power as permissible even in its polemical form. Section 185 of the Criminal Code was therefore not satisfied. The limit on transferring this outcome matters: the court did not authorise use of the term on every occasion or against every person (paragraph 16; the last statement is our own explanation of the decision’s limits).

First the basic offence, then the additional protection

Section 188(1) StGB builds on an insult against a person active in political life. The act must take place publicly, at an assembly or through dissemination of content. The motives must relate to the person’s political position, and the act must be capable of substantially impeding their public activity. The provision also covers local politics. An insult against a politician therefore does not automatically satisfy section 188.

For comparison: “Geh putzen” was a different case

A Facebook user commented on a video concerning a state parliament member’s speech with “Geh putzen” (“Go clean”) and a symbol expressing disgust. The local court imposed 50 daily fines of EUR 40 each. The regional court upheld the conviction. Hamm Higher Regional Court acquitted him on 10 February 2026. It did not merely remit the case for reconsideration, but itself entered the acquittal (5 ORs 94/25, paragraphs 3 to 4 and 36).

This order by the Hamm Higher Regional Court concerns different facts from the demonstration placard. Here too, balancing freedom of expression against personality rights was decisive. In its specific context, the court understood the comment primarily as criticism of suitability for political office. The absence of likes was only one factor among several, not a general rule of immunity from prosecution (paragraphs 21 and 25 to 29).

Section 188: reach matters, but there is no simple threshold

Both courts additionally explain why the special offence under section 188 cannot simply be inferred from a potentially large readership. Hamm Higher Regional Court found it insufficient merely to state that many Facebook users could see the comment. The Bavarian court considered dissemination, audience and circumstances as well as content. Actual harm to political activity need not be proved: the statute requires the relevant capacity to impede it (Hamm, paragraphs 31 to 32; Bavarian court, paragraphs 26 to 29).

These additional observations were not decisive, because both acquittals already followed from the assessment under section 185. Both courts also identify a differing approach by Zweibrücken Higher Regional Court focusing on content. The decisions therefore do not show that all questions about reach and section 188 have been conclusively settled by the highest court (Bavarian court, paragraph 30; Hamm, paragraph 32).

No prosecution request does not automatically end proceedings

In the placard case, the Federal Chancellor waived a formal request for prosecution but did not object to prosecution by the authorities. Section 194(1) StGB permits prosecution without such a request in section 188 cases where a special public interest exists. An express objection by the injured person is different. The shortcut “no prosecution request means no prosecution” is therefore incorrect here (Bavarian court, paragraph 3; section 194(1) StGB).

What defendants and content teams should preserve

Our practical recommendation: preserve the full publication, including the original post, discussion, date and visible dissemination. A screenshot of the disputed sentence alone may omit precisely the circumstances that matter. A person questioned as a suspect has the right to remain silent on the allegations and consult defence counsel beforehand (section 136(1) StPO). Any response should not rely solely on a supposedly comparable acquittal.

For creators, editorial teams and businesses, our assessment is that legal review must cover the specific content and its publication context. Civil claims for removal or an injunction are a separate question. A criminal acquittal does not automatically resolve every dispute about a publication.