Michael Schmidt-Salomon, spokesman of the Giordano Bruno Foundation, criticized the German government's decision to allow criminal prosecution against Jan Böhmermann on the basis of §103 of the German Criminal Code (StGB) as "kneeling before a despot" who "in his own country utilizes the traditional criminal offence of lèse-majesty to eliminate political opponents”.
Chancellor Merkel declared that in Germany it is not the government but the judiciary that should have "the last word", which is why the authorization for criminal prosecution "does not mean that Böhmann has been prematurely convicted". Schmidt-Salomon described this as "hypocritical": "An authorization for criminal prosecution can only be granted if there is sufficient reason to suspect a crime. In this respect, the German chancellor must at least assume that Jan Böhmermann could have violated §103 StGB. This is absurd, however, if we consider the context in which the controversial poem 'Schmähkritik' ('abusive criticism', TN) was recited".
"Genuine abusive criticism requires the critic to be serious about his abuses," said Schmidt-Salomon. "Is this prerequisite present in this case? Certainly not! No one who has watched the programme and is reasonably lucid would assume that Jan Böhmermann was seriously suggesting that the Turkish president has unusually small genitals and is sexually involved with goats and sheep! Böhmermann was interested in something completely different (see the transcript of the programme): His satire was aimed at making Erdogan unable to distinguish between justified satire and forbidden abusive criticism, which the Turkish president impressively demonstrated with his reaction to the ZDF programme. This alone would be tragical-comical enough and proof of Böhmann's satirical qualities! Unfortunately, however, the German chancellor and her advisors do not seem to have the required ability to differentiate either, as was shown today, since otherwise she would have never given in to Turkey's interest in criminal prosecution due to the lack of the a sufficient reason to suspect a crime!"
Schmidt-Salomon positively noted that all SPD ("Social Democratic Party", TN) ministers voted against criminal prosecution: "Following an old saying that was originally directed against the SPD, one could say today: 'Who betrayed Böhmermann? Christian Democrats!' Similar to the debate on assisted suicide, the CDU/CSU has now stabbed in the back all those who seek to strengthen the principles of an open society on the question of how to deal with Turkey. The Chancellor had the chance today to demonstrate a stronger political profile and give the Turkish President a lesson in democracy, freedom of expression and freedom of the arts. Angela Merkel has abjectly missed this opportunity".
The gbs spokesman welcomed the German government's plans to delete §103 StGB in the near future: "This is a step long overdue! In this process, however, §166 StGB ought to be dropped as well, as 'blasphemy' and 'lèse-majesty' have always been closely connected. Both paragraphs originate from the unfortunate time of the throne-altar marriage and have no place in a modern open society, as they undermine the foundations of the democratic constitutional state".
Addendum by Michael Schmidt-Salomon (April 15th, 8 p.m):
In the debate on the Böhmermann case, it was claimed that the Chancellor had no other option, on the basis of the existing laws, than to grant an "authorization to prosecute". This is untrue, in fact the opposite can be justified instead: § 104a StGB, which regulates the requirements for criminal prosecution pursuant to the outdated § 103, is supposed to provide German citizens with a certain degree of protection from constitutionally questionable proceedings which are pursued from foreign countries. The Federal Government is therefore legally obliged (!) to examine the legal facts before granting an authorization! To leave this decision to the courts, as Merkel now intends to do, is thus a violation of the terms of §104a, which does not stipulate a legal automatism but gives an active role to the Federal Government (to protect citizens and fundamental rights). We must therefore distinguish very clearly between insult proceedings under §103 StGB (state level) and insult proceedings under §185 StGB (personal level). In short, today's decision by the Chancellor was highly open to criticism not only for political but also for legal reasons. In fact, the Federal Government would have been constitutionally obliged to deny the authority to prosecute the "Böhmermann case" according to §103/104 and to refer Erdogan to the personal complaint procedure according to §185, as explained by legal expert Alexander Thiele in this "Verfassungsblog":