Böhmermann very clearly violated that law, on television, deliberately. The law makes no exception for intent. So if he hasn't violated the law then what would? And unfortunately it says, quite clearly, it is punished by a jail sentence. Unless German courts are an absolute joke he is going to rot in jail for a while.
The only person who could have stopped that outcome is Merkel. And what has she done? She has said in public, unambiguously that she doesn't want to do this BUT IS DOING IT ANYWAY TO PLEASE ERDOGAN.
That's a huge problem for everyone in Europe. Germany is very powerful in the EU. If the German leader is willing to publicly bend over and obey whilst simultaneously protesting then Erdogan is realising that he has Germany (and thus the EU) by the balls. What will he demand next?
You will find that the majority of actual lawyers who have voiced an opinion actually disagree with you; there's no doubt that this is a bit of a gray area, but the Constitutional Court generally allows only very narrow exceptions when it comes to even heated and offensive utterances in the arena of public discourse.
This does not even account for the fact that non-violent first time offenders rarely ever go to jail in Germany, except for the most serious of crimes.
The law says punishable with up to 5 years in jail or a monetary fine. "wird mit Freiheitsstrafe bis zu drei Jahren oder mit Geldstrafe, im Falle der verleumderischen Beleidigung mit Freiheitsstrafe von drei Monaten bis zu fünf Jahren bestraft."
There's no way this will end up with a jail sentence.
I hope you are right. Nonetheless, I see no way he can escape punishment unless the courts choose to ignore the law entirely by setting the fine to one euro or something like that, which seems like an unfortunate thing for courts to do in general, even if in this case it'd be highly convenient.
SO there is still no way around the fact that Merkel should not have done this.
It's actually quite well possible that there's no punishment in the end. The case hinges on the question whether the poem and its presentation were satire thus still protected or pure defamation. The scholars are divided about this, but there seems to be a slight majority on the side of protected speech. Then there wouldn't be an offense and thus no case and no punishment.
There's a lot of factors playing into this, Böhmermann was treading on the line as he certainly was aware of, but in his favor the long standing rulings accept that the tone of the critique can be adapted to the target or the critique. Since Erdogan is known not to mince words, that plays into Böhmermanns favor. Using the same words on the Dalai Lama would be a much more clear cut case.
Things are going to be interesting in the next couple of month/years :) If there's a court case I fully expect that to go up to the constitutional court.
The federal government gets a veto right here because it is an affected party – diplomatic relations are part of what §103 of the penal code aims to protect; there are other sections of the penal code that already deal with defamation – and to verify that reciprocity is observed. The federal government is neither equipped nor entitled to do the job of the actual prosecutors (which, except for certain types of offenses, is the responsibility of the states) and thus reasonably does not wish to preempt them.
Would be the decision exactly the same for some random African or Latin american head of state? I doubt it and it looks like I'm not alone in that.
That would just highlight the hypocritical nature of the law. Laws should be about justice; either some deed is damaging to some person/group/society or not. Whether I like the offender or victim, or not, is not a part of the equation. If it is, the law is not a just law, it is something to beat the opponents with.
Such laws could be expected in dictatorships, but not in a supposedly democratic country.
I'm a bit torn on the decision. It would have been nice to take a stand, but the big open question is whether that would be worth it.