Definition of terms: Deceased, Defamation
The defamation of the deceased is a specific criminal offense under German law that regulates the protection of post-mortem personal rights. The legislator’s intention is to protect a person’s dignity and reputation even after death. In a broader sense, the term encompasses all actions intended to insult, degrade, or otherwise impair the memory of the deceased. The defamation of the deceased is a special category of offenses against honor and is explicitly found in the German Criminal Code (StGB).
Legal Basis
Section 189 German Criminal Code (StGB) – Defamation of the Memory of the Deceased
The central statutory provision regarding the defamation of the deceased is Section 189 StGB (“Defamation of the Memory of the Deceased”). The paragraph reads as follows:“Whoever defames the memory of a deceased person shall be punished with imprisonment for up to two years or with a fine.”This provision further protects the dignity and reputation of the deceased as a post-mortem personal right. It thus supplements the regulations for protecting the honor of living persons, such as Sections 185 et seq. StGB (insult offenses).
Elements of the Offense and Requirements
Protected Legal Interest
The protected legal interest is the memory of a deceased person. Protected is their personal and social honor, which is preserved even after death. The legal system recognizes that personality endures beyond death.
Potential Offenders
Any natural person can be an offender. The criminal offense thus applies to anyone, regardless of their relationship to the deceased.
Actus Reus
Acts include all forms of defamation, that is, denigrating, insulting, or making contemptuous the memory of the deceased. Defamation occurs if the act is objectively suitable to violate or diminish the moral, social, or societal respect owed to the deceased.
Examples of Acts:
- Defamatory publications about the deceased in the press, on the internet, or on social media
- Derogatory remarks or insults at the grave
- Distortion of graves or grave markers with defamatory content
- Spreading defamatory untruths after death
Subjective Element
Intent is required. This means the act must be carried out deliberately or knowingly — negligent conduct is not sufficient.
Sentencing and Sentencing Framework
Section 189 StGB provides for a sentencing framework of up to two years’ imprisonment or a fine. It is an offense requiring a complaint according to Section 194 StGB, provided that a justified interest of the relatives exists or there is a special public interest.
Relationship to Other Criminal Offenses
Insult (Section 185 StGB) and Defamation (Section 186 StGB)
The defamation of the memory of the deceased must be distinguished from insult or defamation, both of which only protect the honor of living persons. However, the offenses may overlap in individual transitional cases, such as when offenses against honor are committed shortly before death or in connection with family members.
Disturbance of the Peace of the Dead (Section 168 StGB)
In parallel, the offense of disturbing the peace of the dead exists, which penalizes physical interference with the body, grave, or mortal remains. The defamation of the memory of the deceased, on the other hand, relates to the immaterial aspect (reputation).
Personal Rights and Protection Interests
Post-mortem Personal Rights
Post-mortem personal rights are protected under constitutional law (Art. 1 para. 1 GG: human dignity). Although legal capacity ends with death, the respect for the individual continues, especially in terms of public reputation.
Protected Relatives
Criminal prosecution can usually be initiated upon application by close relatives. These typically include spouses, descendants, parents, and siblings of the deceased.
Special Procedural Provisions
Offense Requiring a Complaint and Criminal Complaint
In practice, criminal prosecution generally requires a corresponding complaint. Without a complaint from the relatives, an investigation only takes place in exceptional cases, namely when the public interest in prosecution is particularly affected by the act.
Limitation Period
The statute of limitations for prosecuting the defamation of the memory of the deceased is generally three years (Section 78 para. 3 no. 5 StGB).
Critique and Reform Discussion
The protection of post-mortem personal rights is regularly discussed in case law and legal literature, particularly regarding the balance between freedom of expression (Art. 5 GG) and protection of honor. Historical reviews and scientific discussions are occasionally also subject to Section 189 StGB, which leads to debates over the regulation’s scope. The legislator has not fundamentally reformed the offense so far, although new challenges for the protection of the honor of the deceased have arisen in digital media.
International Legal Situation
In international comparison, similar protection often exists in continental European legal systems. In many countries, the memory of the deceased is considered particularly worthy of protection. However, scope, requirements, and sanctions sometimes differ considerably.
Recommendations for Action and Prevention Measures
To avoid punishable acts pursuant to Section 189 StGB, it is advisable to treat publications and statements about the deceased with particular sensitivity. Especially in the media and communications sector, careful consideration is required between public interest in information and the protection of the deceased’s honor.
References
- Fischer, Criminal Code and Supplementary Laws, Commentary, latest edition
- Satzger, International and European Criminal Law
- MüKoStGB, Commentary on the Criminal Code
- Dreher/Tröndle, Criminal Code and Supplementary Laws
- Decisions of the Federal Court of Justice, in particular regarding the distinction between freedom of expression and protection of honor
Summary
The defamation of the deceased is an independent criminal offense that protects the memory and good reputation of deceased persons. Section 189 StGB ensures that defamatory acts can be prosecuted even after a person’s death, with the range of acts extending from verbal remarks to publications. The provision serves an important protective function for the post-mortem personal right and secures the continuation of human dignity after death.
Frequently Asked Questions
Is defamation of the memory of the deceased punishable in Germany?
Yes, defamation of the memory of the deceased is expressly punishable in Germany under Section 189 of the Criminal Code (StGB). This paragraph protects the personal reputation of the deceased and their dignity after death. A prerequisite for punishability is that the defamatory act is suitable to impair the memory of the deceased. The offense can be committed through words, images, gestures, or other actions. It is not necessary for relatives to be present or specifically insulted for the offense; the general disparagement towards third parties is sufficient. However, prosecution occurs exclusively on application, which must be filed by relatives or the public prosecutor’s office. A sentencing framework of up to two years’ imprisonment or a fine is provided.
Who can file a criminal complaint for defamation of the memory of the deceased?
In principle, close relatives of the deceased, such as spouses, parents, children, or siblings, have the right to file an application. In addition, pursuant to Section 77 para. 2 StGB, the public prosecutor’s office also has the right to assume a particular public interest in prosecution and to take action itself, for example, in particularly serious cases or when relatives are unknown or do not exist. The application does not have to be justified in detail, but should make clear which act is considered defamatory.
What actions can constitute defamation of the memory of the deceased?
Defamatory acts can occur verbally, in writing, visually, or even through gestures. Classic examples include insults, vituperation, or false and defamatory allegations about the deceased. Willful damage or defacement of graves and gravestones is also included, provided it is accompanied by a defamatory intent towards the deceased. The assessment always depends on the individual case, with the decisive factor being whether there is a defamatory effect that impairs the reputation of the deceased.
Does the protection of honor also apply to deceased persons who were public figures?
Yes, public figures, such as politicians, celebrities, or minor public personalities, are also protected under Section 189 StGB after their death. However, in their case, further-reaching criticism may be covered by freedom of expression, since their life and actions were often part of public discourse. The limit is nevertheless exceeded when the statements objectively constitute vilification, slander, or insult that is no longer justified by a legitimate interest.
Are there deadlines within which an application must be filed?
The deadline for filing a criminal complaint for defamation of the memory of the deceased pursuant to Section 77b StGB is three months from the time the offender and offense become known. If the entitled person misses this deadline, legal proceedings can generally no longer be initiated. An extension or reinstatement is possible only in absolute exceptional cases.
What civil claims exist alongside criminal prosecution?
In addition to the criminal aspect, defamation may also have civil law consequences. Close relatives can, for example, assert claims for injunctive relief or damages under the provisions of the Civil Code (BGB), particularly within the framework of post-mortem personal rights. In such cases, the courts examine whether an unlawful infringement of personal rights has occurred and whether the relatives’ claims are to be given priority. These claims are also subject to the general statutes of limitations and must always be reviewed on an individual basis.
Are there exceptions to the criminal protection of the memory of the deceased?
Not every critical or negative statement about a deceased person is automatically punishable. In particular, freedom of expression according to Article 5 of the Basic Law stands in tension with the protection of honor. Criticism or assertions of fact that serve the public interest or informational purposes may be permitted under the right to free expression, as long as they do not constitute vilification or are clearly defamatory. The threshold for criminality is crossed when the statement is made deliberately derogatory and defamatory.
