An excerpt from the statement:
Legal background
The right to the freedom indispensable for artistic expression and creativity is protected under articles 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and 19 of the International Covenant on Civil and Political Rights (ICCPR).
Implicit provisions encompass those guaranteeing the right to freedom of expression or the right to take part in cultural life without specific reference to arts or creative activities. Relevant provisions include article 19 of the Universal Declaration on Human Rights, article 10 of the European Convention for the Safeguard of Human Rights and Fundamental Freedoms, articles 9 and 17 of the African Charter on Human and Peoples’ Rights, and article 32 of the Arab Charter for Human Rights. In General Comment 21, the CESCR has stressed that the right to take part in cultural life entails rights of participation in, access to, and contribution to cultural life, and encompasses the right of everyone “to seek and develop cultural knowledge and expressions and to share them with others, as well as to act creatively and take part in creative activity ».
In Germany, Artistic freedom is expressly protected as a fundamental right by the Constitution (Basic Law) Article 5 para. 3 sentence 1 of the Basic Law that says: “Arts and sciences, research and teaching shall be free.” Artistic freedom is also included in the constitutions of many of the Federal Länder. In its response to the 2012 questionnaire sent by the Special Rapporteur in the field of cultural rights Germany provided the example of Lower Saxony’s State Constitution that states in its Article 6 “The Land, municipalities and rural districts shall protect and promote the arts, culture and sport. »
The information related to cultural education and the remit and role of cultural policy is contained in Annex 26. It affirms that « The overarching goal of cultural policy in Germany is to guarantee artistic freedom and ensure universal access to art and culture ». Efforts for education and for protecting and promoting the cultures of the national minorities living in Germany. Länder-initiated and funded projects also encourage people with immigrant backgrounds to take greater part in cultural life. (p. 77 to 79 of the annexes to the Sixth periodic report submitted by the Federal Republic of Germany under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights 2016 Reporting period: 2008 to the end of 2015 (mid-2016 in some cases)).
The Federal Republic of Germany thus possesses a good legal framework for the protection of artistic freedom. The implementation of the basic law is effective with a separation of powers into legislature, executive, and judiciary, as the trias politica model. It also had developed policy in this field through the support by the Foreign Ministry of Foreign Affairs of initiatives such as the Arts Rights Justice Programme at the University of Hildesheim and the Martin Roth-Initiative by Institute für Auslandsbeziehungen and Goethe-Institut.
Threats to artistic freedom
Recent cases collected by organizations monitoring artistic freedom show that threats to artistic freedom and censorship have mainly come from third parties, either commercial groups or political groups. ARJ has also been informed that as in other countries, the confrontation between pro Boycott, Divestment and Sanctions Movement (BDS) and anti BDS is creating tensions within the artistic community and putting pressure on artists, curators, festival makers. (Example, Germany: Broadcasters refuse to promote musician’s concerts, 18 December 2017, Source Freemuse). The German parliament created an anti-Semitism Commissioner post in January 2018 considering it holds « special responsibility » to fight anti-Semitism due to the Holocaust.
Recent cases
* On 7 February 2017 artist’s Manaf Halbouni’s ‘Monument’, a peace memorial inspired by the Syrian war gathered protestors from the AfD (Alternative for Germany) nationalist party and PEGIDA movement in Dresden. Dresden Mayor Dirk Hilbert had been placed under police protection due to receiving death threats after approving the piece of public art.
(Source : Freemuse / Germany: Right-wing groups protest installation in Dresden; threaten mayor, 3 April 2017)
* On 15 May 2018, the Hamburg Higher Court ruled to dismiss Turkish President Recep Tayyip Erdoğan’s appeal to ban German comedian Jan Böhmermann’s poem due to claims of insult and mockery. The court did uphold a ban regarding specific passages within the poem but it ruled that the poem could not be completely banned due to Germany’s laws protecting free speech.
The Turkish president filed a case against the German-based comedian on the basis of Section 103 of the Criminal Code Act (Criminal Code Art. 103) which covers insulting a foreign head of state, or a member of a foreign government in Germany in official capacity, or the accredited head of a foreign diplomatic mission in Germany. The penalty is up to three years in prison or a fine. In the case of slander, the penalty is increased to three months to five years in prison.
(Source Freemuse, Germany: Court dismisses Turkish president’s appeal to ban poem 21 June 2018)
The case of Jan Böhmermann shows that the procedures for protecting artist worked effectively : protection of the artist by police against existing and potential threats, clarification the case on the basis of existing law, sentence of the artist only after all legal procedures have ended.
On 15 May 2018, the Hamburg Higher Court ruled to dismiss Turkish President Recep Tayyip Erdoğan’s appeal to ban German comedian Jan Böhmermann’s poem due to claims of insult and mockery. The comedian had initially presented the poem on 31 March 2016 on the ZDF television programme ‘Neo Magazin Royale’. The court ruled that the poem could not be completely banned due to Germany’s laws protecting free speech. However, the court did uphold a ban regarding specific passages within the poem.
The Turkish president filed a case against the German-based comedian on the basis of Section 103 of the Criminal Code Act(Criminal Code Art. 103) which covers insulting a foreign head of state, or a member of a foreign government in Germany in official capacity, or the accredited head of a foreign diplomatic mission in Germany. The penalty is up to three years in prison or a fine. In the case of slander, the penalty is increased from three months up to five years in prison.
(Source Freemuse, Germany: Court dismisses Turkish president’s appeal to ban poem
21 June 2018)
Recent threats to artistic freedom, especially in relation to the right-wing nationalist political uprisings in many European countries have prompted two German parliamentarians to initiate a petition called «Brussels declaration for the freedom of the arts» in July 2018 where they alert that «the right to free expression and the diversity and the liberty of the arts are threatened in Europe». They refer mainly to Austria, Hungary and Poland «But in Germany, too, right-wing nationalists are speaking of their desire to “clean up the cultural sector” and eliminate public funding for “leftist and liberal diversity ideology”.
Recommendations
The Arts Rights Justice Working Group reiterates the recommendation included in the 2013 UN Report that :
– States should abide by their obligation to protect artists and all persons participating in artistic activities or dissemination of artistic expressions and creations from violence by third parties. States should de-escalate tensions when these arise, maintain the rule of law and protect artistic freedoms. The police should not charge artists and cultural institutions for the costs of their protection; (A/HRC/23/34, recommendation e)
It further recommends that :
– Due to the increasing pressure on artists and cultural actors in the context of the Boycott, Divestment, Sanctions (BDS) movement measures, the State should facilitate dialogue between those concerned and create and/or support public forums for discussion and exchange.
It also strongly encourages the State to establish or support a mechanism for the systematic documentation of violations of the right to freedom of artistic expression and creativity. This mechanism would serve as a monitoring tool for the cases that arise in the next reporting period.”
