Allegation of Insult under § 185 StGB

A brief glance at the world reveals insults in various forms, targe­ting diffe­rent social groups, indi­vi­duals, and contexts. Insults range from vulga­ri­ties like „Arsch­loch“ or „Schlampe“ to homo­phobic or trans­phobic slurs such as „schwule Sau“ or „du scheiß Transe.“

Poli­ti­cians are often prime targets for such contempt.
For instance, a retired man in Göttingen recently made head­lines when he yelled at a Green Party poli­ti­cian in late May 2024, calling her „Drecks­pack, ihr Grünen!“

Poli­ti­cally moti­vated insults also proli­fe­rate on social media, as seen in notable cases. In 2021, Angela Merkel was labeled a „dumme Schlampe“ by a Face­book user, while Jens Spahn faced remarks like „Hau ab, du schwuler Wichser, du schwule Sau“.

A classic example of a poli­ti­cally charged insult is the dismissed case concer­ning Jan Böhmer­mann’s „Schmäh­ge­dicht“ directed at Turkish Presi­dent Erdogan.

Law enforce­ment offi­cers are another common target of insults.
The phrase „ACAB“ („All cops are bastards“) remains a recur­ring insult nati­on­wide. Refer­ring to the police as a „Rassis­ten­verein“ might seem mild compared to the broader case law surroun­ding insults directed at law enforce­ment offi­cers.

These examples illus­trate how insults pene­trate various societal strata, from private indi­vi­duals to public offi­cials, shaping discus­sions about freedom of expres­sion and legal accoun­ta­bi­lity.

The offense under § 185 StGB

From an objec­tive perspec­tive, the offense of insult under § 185 StGB requires an insult-worthy subject and a suitable act of insult.

A living person is gene­rally considered capable of being insulted. Theoretical—and, given the frequency of such cases, practical—issues arise regar­ding the insult-wort­hi­ness of groups. A distinc­tion must be made between insults directed at a coll­ec­tive desi­gna­tion and coll­ec­tive insults. For insults under a coll­ec­tive desi­gna­tion, it is required that the affected group clearly stands out from the general public, is nume­ri­cally mana­geable, and that indi­vi­dual members can iden­tify them­selves as part of this group. Examples include soldiers of the Bundes­wehr or, due to their histo­rical signi­fi­cance in Germany, “the Jews” as a defi­nable group.

In contrast, a coll­ec­tive insult targets an entire entity. Such an entity is considered capable of being insulted if it fulfills a reco­gnized social func­tion, demons­trates a unified will, and main­tains its iden­tity regard­less of changes in member­ship. The insult-wort­hi­ness of autho­ri­ties and public bodies is speci­fi­cally regu­lated under § 194(3) and (4) StGB.

An insult-worthy subject must also be paired with an objec­tively suitable act of insult. This is gene­rally unders­tood as an attack on the honor of another person through the expres­sion of disre­gard or contempt. As a speech-related offense, it targets a core area of human dignity protected by Article 1 of the Grund­ge­setz (GG). Contempt directed at the subject under § 185 StGB can be expressed in various forms: an insult can take the form of a defa­ma­tory value judgment directed at the victim or a third party, or a defa­ma­tory false state­ment directed at the victim. In the latter case, the falsity of the state­ment becomes an objec­tive element of the offense. Written, verbal, or implied actions (e.g., gestures) can suffice to convey an insult, fulfil­ling the nature of a speech-related offense.

Subjec­tively, insult under § 185 StGB requires inten­tional action.
The offender must have acted knowingly and willingly to fulfill the objec­tive elements of the offense. It is suffi­cient that the expres­sion of contempt is included in their intent; a specific inten­tion to insult is not required.

The second alter­na­tive under § 185 StGB involves a physical insult (tätliche Belei­di­gung), a quali­fied form of insult.
This occurs when the insult involves a physical act directed at the victim’s body, conveying a heigh­tened degree of contempt or disre­gard for the victim’s honor. Examples include spit­ting on the victim or striking them in a degra­ding context.

For a simple case of insult under § 185 StGB, the offense is charac­te­rized as an abso­lute private prose­cu­tion offense (§ 194(1) StGB).
This means that prose­cu­tion is initiated exclu­si­vely upon the filing of a complaint (Antrags­de­likt) as regu­lated under §§ 77 ff. StGB.

Several specific forms of insult are regu­lated in the 14th section of the Straf­ge­setz­buch (StGB). These include insults directed at persons in poli­tical life (§ 188 StGB), defa­ma­tion of the memory of the deceased (§ 189 StGB), and inci­teful insults (§ 192a StGB). A signi­fi­cantly defa­ma­tory state­ment can thus fulfill the elements of § 188 StGB—for example, refer­ring to Angela Merkel on Face­book as a “dumme Schlampe” (stupid slut) could fall under this offense.

What are the penalties for insult?

For a simple insult under § 185 StGB, the poten­tial penalty ranges from a fine to impri­son­ment of up to one year. The penalty increases to impri­son­ment of up to two years if the insult is committed publicly, during an assembly, through the disse­mi­na­tion of content (§ 11(3) StGB), or by physical action (§ 185 Alt. 2 StGB).

Certain special forms of insult carry the same penalty as physical insult under § 185 Alt. 2 StGB, or in some cases, even higher penal­ties. While the defa­ma­tion of the memory of the deceased under § 189 StGB and inci­teful insult under § 192a StGB also provide for penal­ties ranging from a fine to impri­son­ment of up to two years, insults directed at persons in poli­tical life under § 188 StGB can even result in impri­son­ment of up to three years.

The seve­rity of the penalty for insult offenses largely depends on the specific circum­s­tances of the indi­vi­dual case. In addi­tion to the facts of the offense, any prior convic­tions of the offender play a critical role. Further­more, there is a possi­bi­lity of the penalty being recorded in the criminal record. Gene­rally, fines are only recorded if they exceed 90 daily rates, or impri­son­ment if it exceeds three months, provided no other penal­ties are already listed. A key task of the defense attorney is to avoid such an entry wherever possible, as many employers require the submis­sion of a clean criminal record.

Do I need a lawyer?

If you have received a police summons for an insult under § 185 Alt. 1 StGB or for an insult invol­ving physical action under § 185 Alt. 2 StGB, it is in your best inte­rest to remain calm. As a suspect in an inves­ti­ga­tion for insult under § 185 StGB, you are not obli­gated to make state­ments to the police.

Even though an insult may initi­ally seem trivial, you should not unde­re­sti­mate the allegation—insult is a criminal offense and can be punished accor­dingly under criminal law.

Legal assess­ment and advice from a lawyer expe­ri­enced in insult offenses can help alle­viate initial uncer­tain­ties and provide a clear course of action tail­ored to your specific case.

Judgments in insult cases are often issued in writing via a penalty order.
You have 14 days from the date of deli­very to file an objec­tion. Targeted criminal defense can often lead to the dismissal of the procee­dings. A dismissal is parti­cu­larly important for indi­vi­duals in sensi­tive profes­sions such as civil servants, public sector employees, doctors, teachers, or lawyers, as a convic­tion could jeopar­dize their profes­sional future. Poten­tial addi­tional penal­ties, as well as impri­son­ment of up to one year depen­ding on the seve­rity of the insult, should not be unde­re­sti­mated.

To coun­teract a harsher penalty or, ideally, to avoid a convic­tion altog­e­ther, it is advi­sable to seek effec­tive support from a specia­lized criminal defense attorney if you are accused of insult. Take the accu­sa­tion seriously—even if it does not involve other offenses such as bodily harm or threats, a convic­tion for insult could result in a criminal record. Avoi­ding such conse­quences is the primary goal of the defense.

Act promptly to ensure that your repre­sen­ta­tion in court is guaran­teed by an expe­ri­enced criminal defense attorney.

If you have further ques­tions or are accused in a criminal case, please feel free to contact us.