Tenor

The applicant’s appeal against the decision of the Berlin Administrative Court dated May 3, 2019 is dismissed.

The applicant shall bear the costs of the appeal.

The value of the object of the appeal is set at EUR 5,000.00.

Reasons

1
The appeal is unsuccessful. Taking into account the appeal submissions, which determine the scope of the review by the Higher Administrative Court pursuant to Section 146 (4) sentence 6 VwGO, the Administrative Court was right not to object to the defendant’s refusal to broadcast the election commercial submitted by the applicant prior to the European elections.

I.
2
With regard to the standard of review to be applied here, it is not possible to follow the view expressed in some higher court case law, according to which the Higher Administrative Court must always review the first instance decision comprehensively ex officio, contrary to Section 146 para. 4 sentence 6 VwGO with regard to Article 19 para. 4 GG, if the appellant cannot exhaust the one-month period of Section 146 para. 4 sentence 1 VwGO (see VGH Kassel, decision of 4 November 2016 – 8 B 2681/16 – juris para. 2).
3
It is true that the requirements for the presentation of evidence demanded by the legislator in appeal proceedings pursuant to Section 146 (4) VwGO must not be overstretched in order to satisfy the constitutional requirement guaranteed in Article 19 (4) GG to ensure effective legal protection in appeal proceedings as well. This applies in particular if the appellant only has a limited amount of time to substantiate his appeal. However, the clear wording of Section 146 (4) sentence 3 and sentence 6 VwGO requires that the appellant must deal with the contested decision and that the Higher Administrative Court must only review the reasons given, at least at a first stage (see Rudisile, NVwZ 2019, 1, 9). If, instead, an ex officio review is regularly required if the appellant cannot exhaust the one-month deadline for reasons of particular urgency, this would lead to unjustified unequal treatment, because there may also be sufficient time to substantiate the appeal before the one-month deadline expires. In light of this, the requirements that may be placed on the requirement to provide evidence are generally determined by the circumstances of the individual case. They may be lower if the appellant only has little time to substantiate their appeal due to the urgency of their request and are therefore based on the urgency of their request (OVG Bautzen, decision of July 5, 2017 – 3 B 163/17 – juris para. 3; see also Guckelberger, in: Sodan/Ziekow, VwGO, 5th edition, Section 146 para. 112; Happ, in: Eyermann, VwGO, 15th edition, Section 146 para. 23).
4
Furthermore, the Federal Constitutional Court has also ruled that the sole review of the reasons stated by the Higher Administrative Court pursuant to Section 146 para. 4 sentence 6 VwGO in summary proceedings under assembly law has not been objected to as a violation of Art. 19 para. 4 GG if the one-month period under § 146 para. 4 sentence 1 VwGO had not yet expired (cf. e.g. BVerfG, decision of 14 August 2003 – 1 BvQ 30. August 2003 – 1 BvQ 30/03 – juris para. 2 and 5 = NJW 2003, 3689).
5
In light of this, it does not violate Article 19 (4) of the Basic Law to demand a discussion of the challenged decision, which the appeal otherwise provides. The decision of the Administrative Court was served on the applicant’s attorney of record, who had already represented the applicant in the proceedings at first instance, on May 3, 2019, so that, although not the one-month deadline, there was sufficient time to substantiate the complaint in good time before the election commercial was broadcast on May 17, 2019 and to obtain a decision from the Higher Administrative Court.

II.
6
Contrary to the complaint, the decision of the court of first instance is compatible with the cited case law of the Federal Constitutional Court (decision of 25 April 1985 – 2 BvR 617/84 – juris para. 33), according to which public broadcasters may only reject a political party’s election commercial due to a violation of general criminal laws if the violation is evident and not of minor importance and according to which, in cases of doubt, the submitted election commercials must be released for broadcast in favor of the political parties.
7
The complaint’s objection that the rejected election commercial does not manifestly and seriously violate the criminal offense of incitement of the people within the meaning of § 130 Para. 1 No. 2 of the German Criminal Code (StGB), as affirmed by the administrative court, does not hold water, especially when taking into account the fundamental right to freedom of expression under Art. 5 Para. 1 of the German Basic Law. According to this provision, anyone who attacks the human dignity of others by insulting, maliciously disparaging or defaming a designated group, parts of the population or an individual because of their membership of a designated group or part of the population in a manner that is likely to disturb the public peace is punished.
8
The complaint asserts without success that the interpretation of the court of first instance, according to which all migrants who have entered Germany since September 2015 are collectively and sweepingly portrayed as criminals who attack Germans on an almost daily basis, is not supported by the wording of the text. Contrary to the complaint, the Administrative Court was entitled to assume, without violating Article 5(1) of the Basic Law, that the applicant had not merely pointed out the causality between the opening of the border in 2015 and the fact that more and more Germans had become victims as a result. The commercial is not limited to criticizing what the applicant sees as the uncontrolled mass immigration since 2015 and the associated dangers posed by individual migrants, but rather propagates – also by means of the technical and content-related staging described by the Administrative Court, especially at the beginning of the commercial – a general division of society into Germans and (criminal) foreigners, from whom Germans, who are described in the commercial solely as victims of violent acts committed by foreigners, would have to seek safety in protection zones to be set up. In this respect,
– contrary to the complaint – the commercial does not only draw attention to those migrants who have actually committed crimes since 2015, but demands that Germans be protected from all migrants, who are portrayed as a real and existential threat.
9
This lack of differentiation and the blanket allocation to the group of (Germans to be protected) or to the group of (criminal) migrants was correctly described in detail by the Administrative Court. It is illustrated not only by the text in the context of an overall view (Germans become victims almost daily, protection zones as places where Germans feel safe again, we create security for us Germans), but also by the dramaturgical presentation, namely the increasing sequence of sequences, which in the end can no longer be traced in detail, which characterizes the crimes of migrants as no longer quantifiable and immeasurable. The fact that it is about migrants as criminals is clear from the context of the commercial (Germans as victims of uncontrolled mass immigration), despite the lack of mention of names, which also lists the names from the media of known crime scenes and names of victims (e.g. Kandel – M. V.). In light of the above, the complaint cannot be upheld with the argument that the advertisement does not mention “any population groups at all”.
10
Contrary to the complaint’s objection, it is not possible here – irrespective of the overall view that already speaks for an evident violation of § 130 para. 1 no. 2 StGB – no other possible interpretation of the commercial in favor of the applicant can be considered if one takes into account the understanding of an unbiased and reasonable audience, taking into account freedom of expression (see BVerfG, decision of March 25, 2008 – 1 BvR 1753/03 – juris para. 32 f.). Contrary to the complaint, a different interpretation than the one adopted by the Administrative Court (especially with regard to the blanket division between Germans and criminal migrants and the establishment of protection zones) is not only not obvious, but appears to be virtually impossible. This follows in particular from the judgment of the Federal Constitutional Court of January 17, 2017 (- 2 BvB 1/13 – juris = BVerfGE 144, 20 et seq.) – also referred to by the defendant in its response to the complaint – and the findings made therein regarding the applicant’s political concept, in the light of which the election commercial must be assessed. Since this is a violation of § 130 para. 1 no. 2 StGB, it is not solely a matter of the fact that hostile behavior of a political party towards the free democratic basic order does not in itself justify the prohibition of an election commercial (cf. in this regard BVerfG, decision of February 14, 1978 – 2 BvR 523/75 et al. – juris para. 90).
11
According to the Federal Constitutional Court, the applicant, based on its objectives and the behavior of its supporters, seeks to eliminate the free democratic basic order and aims to replace the existing constitutional order with an authoritarian “nation state” based on the ethnic “national community”. This political concept – according to the Federal Constitutional Court – disregards the human dignity of all those who do not belong to the ethnic community (BVerfG, judgment of January 17, 2017 – 2 BvB 1/13 – juris, guiding principle 9. a) and can already be inferred from the – still valid – party program of the applicant (cf. in detail BVerfG, judgment of January 17, 2017 – 2 BvB 1/13 – juris para. 636 et seq.).
12
The Federal Constitutional Court also commented in detail on the ethnic definition of the “German national community” and the associated permanent exclusion of “ethnic non-Germans” from this community as a fundamental conviction of the applicant (para. 657 et seq.) and described this concept of the people as constitutionally untenable (para. 690 et seq.). The Federal Constitutional Court considered the resulting disregard for human dignity to be proven on the basis of numerous positions towards foreigners, migrants and minorities attributable to the applicant (para. 698 et seq.). Against this background, the election advertisement can only be understood from the perspective of an unbiased and intelligent audience to mean that Germany and Europe are to be created as safe protection zones exclusively for Germans, in which migrants, who are generally accused of criminal behavior, can have no place. Incidentally, this is also shown at the end of the commercial (“We create security for us Germans: NPD”).
13
Apart from this, the applicant’s intention – as a subjective requirement of the facts that she disputes – to defame migrants as criminals across the board with her advertisement is also beyond doubt because the current modified election advertisement in the previous – also rejected – version was expanded to include an addendum expressly described as “censored”, which expressed this unreservedly and unambiguously. It read: “Since the arbitrary opening of the border in 2015 and the uncontrolled mass immigration since then, Germans have become victims of foreign knifemen almost every day. Migration kills!”, whereby the latter was displayed in large red letters (cf. on the previous version OVG Koblenz, decision of 26 April 2019 – 2 B 10639/19 – juris para. 4 et seq.).
14
Measured against this, it is not objectionable in the context of the required overall assessment that the first instance decision affirms the requirements of Section 130 para. 1 no. 2 StGB. As stated, in the rejected election advertisement, the applicant makes a generalized dichotomy between Germans and migrants who, in the applicant’s view, pose a considerable danger to the German population due to their criminal actions. This sweeping and undifferentiated view, which ultimately imputes criminal energy to all migrants and demands protection from them through the establishment of protection zones – to be extended to Germany and Europe – is not only an attack on honor, but also on human dignity in the sense of malicious disparagement. The fact that the applicant is merely “primarily concerned with the protection of Germans” and does not want to leave foreigners without protection cannot be upheld. The further issue raised by the complaint that the creation of protection zones should not undermine the state’s monopoly on the use of force and should not incite violence against foreigners is no longer relevant to the decision, even if the findings of the Federal Constitutional Court on the respondent’s political concept could suggest such a thing.
15
Finally, to the extent that the applicant objects that the migrants who entered the country from 2015 onwards are not “parts of the population” within the meaning of Section 130(1) StGB because they cannot be easily distinguished from the rest of the population, this does not help the complaint to succeed either. This is already the case because the election commercial is not directed against foreigners who have entered the country since 2015 and committed crimes, but – as explained above – takes immigration since 2015 as an opportunity to propagate a blanket division of society into Germans and non-Germans favored by the applicant and is generally directed against migrants. There can be no doubt about this interpretation in light of the cited decision of the Federal Constitutional Court; rather, it is evident that the rejected election advertisement violates criminal law and that the violation is not minor.
16
The decision on costs follows from Section 154 (2) VwGO. The determination of the value in dispute is based on § 47 Para. 1, § 53 Para. 2 No. 1, § 52 Para. 2 GKG.
17
This decision is final (§ 152 Para. 1 VwGO, § 68 Para. 1 Sentence 5 in conjunction with § 66 Para. 3 Sentence 3 GKG).