Successful Defeat
Kristina Hänel overcomes another hurdle on the way to the Federal Constitutional Court
Usually defendants hope for acquittal - unlike physician Kristina Hänel. In order to legally overturn the controversial § 219a of the German Criminal Code (StGB), she could not be acquitted in today's court hearing at the Giessen regional court. After the "successful defeat" in Giessen, Kristina Hänel can now appeal against the decision and is thus one step further on the way to the Federal Constitutional Court in Karlsruhe. A report by Michael Schmidt-Salomon, who advised Kristina Hänel and her supporters in the days before the trial and was at the scene on Friday morning.
Court hearings like this must be rare. All parties involved, the public prosecutor's office, defence, and judges, agreed on most points: Nobody denied that Kristina Hänel had violated § 219a StGB when she stated on her homepage that she performed abortions. There was also consensus that this paragraph in its present form could most certainly not be maintained. Judge Nink emphasized this not least in the verbal reasons for the judgment. He openly showed his sympathy for Hänel's goals and spoke of a "terrible compromise" and "poorly developed criminal law paragraphs", which in his personal opinion should be revised or abolished. However, the federal politicians or the judges of the Federal Constitutional Court bear responsibility for this, not the Giessen regional court, which has to comply with the existing laws.
In one decisive aspect Judge Nink did not agree with the argumentation of Karlheinz Merkel, Kristina Hänel's defender. Merkel had brilliantly argued before the court that § 219a implied an inadmissible restriction of freedom of expression (Article 5 in German Basic Law) and professional freedom (Article 12 in German Basic Law) and is therefore unconstitutional. In principle the court would thus have had the opportunity to suspend the proceedings in accordance with Article 100 of the Basic Law and to involve the Federal Constitutional Court. Judge Nink commented, that while he has doubts about the constitutional conformity of § 219a, these doubts are insufficient to allow him to initiate a norm control procedure on their basis. Kristina Hänel will have to proceed through further instances on her way to Karlsruhe. This may take a while if federal politicians do not come to their senses in time. § 219a StGB will fall at some point - Kristina Hänel and her many supporters are firmly convinced.
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