Here then is the continuation of the preceding post on the historical evolution of § 130, updating the story as far as the most recent changes in December 2022.
Although Article 130 has become the principal mechanism for dealing with H-deniers and NS sympathisers – over 1000 prosecutions have been brought under it in the last thirty years or so - in earlier years, the heavy lifting was done by the aforementioned § 189
Verunglimpfung des Andenkens Verstorbener (Denigration of the Mem ory of the Deceased). It was under this ordinance that David Irving was prosecuted in 1991 following his appearance at a meeting in Germany, during the course of which he uttered his now notorious remark that the gas chamber in Auschwitz shown to tourists is a post-war fake. Irving escaped with a fine and perma-ban from the country, although he never paid the fine which led to well-publicised complications later on elsewhere.
At that time and up to the mid-to-late 90s, most successful prosecutions of deniers relied on the use of § 189, usually in combination with one or another of the several related criminal laws which proscribed defamation, slander and 'malicious gossip' [sic!]. § 189 has formed part of the Penal Code since its original enactment in 1871 and remained largely unaltered until 1975 when it took on the following remarkably brief (for Germany) and succinct form :
Prior to 1975 the law was rather more involved in that it specified exactly who was entitled to enter a complaint on behalf of the deceased, usually restricted to close relatives. The removal of this constraint in 1975 opened up the possibility for anyone who felt that the memory of the dead had been denigrated to make a complaint under § 189, so it is no real surprise that it became the mainstay of the H-litigation industry for the next twenty-odd years.
One interesting side note on § 189 concerns an amendment that was enacted in 1943 to introduce stiffer penalties for denigrating the memory of anyone who had given his life for the Fatherland; unsurprisingly this provision did not survive the first few months of post-war military occupation.
Someone else who fell foul of § 189, at around the same time as Irving, was NPD leader Günter Deckert. Deckert's offence was to translate and publish, with favourable commentary, Fred Leuchter's controversial findings from his investigations of the crematoria in Auschwitz-Birkenau. Deckert's case is long and convoluted, suffice to say that he accumulated close to five years in jail for this and a variety of subsequent transgressions - including an open letter to the President of the Council for Jews in Germany recommending that he and his co-religionists should 'pack their bags and go home to Israel'. The relevance of Deckert to the present discussion is that this case presented the stimulus and catalyst for German legislators to finally dispense with the grab-bag of measures that had served so far, and to craft a new law as a 'Final Solution' to the so-called "Auschwitz Lie"* which had over the years proven so difficult to eradicate. This new law was in fact the new and improved § 130, whose complete text was as follows:
The two other articles referenced in the above , § 220a and § 86, deal with crimes of genocide and the dissemination of propaganda on behalf of prohibited organisations, respectively. § 11(3) defines all of the communications media which may include the forbidden 'writings'.
It is immediately apparent that the rewritten law is much, much longer than its predecessors and, perhaps more importantly, it codifies the salient characteristics of protected groups (i.e. nationality, race, religion) and introduces the new offence of 'trivialising' acts commited under National Socialism, presumably including the Holocaust. Interestingly, though, the terms 'Holocaust', 'Auschwitz' and 'Jews' do not appear either here or anywhere else in the entire Penal Code. The 1994 revision created the framework for anti-revisionist and anti-revanchist legislation which has been continued to find regular application up to the present. Minor amendments occurred in 2002 and 2004, the latter adding media and telecommunications services to radio in § 130 (2).2.
The next major change to § 130 occurred in 2005, and involved the addition of a new section § 130 (4), which specifically added powers to prohibit neo-Nazi rallies, marches and demonstrations in so-called 'sensitive ' areas. The immediate pretext for this amendment was official concern about the steadily increasing attendances at the ‘Rudolf Hess Memorial March’ held annually culminating with a pilgrimage to his burial place in Wunsiedel, Bavaria. It was left to each local authority to determine whether a proposed event would encroach on such an area. The text of the addition is as follows:
§ 130 was amended again in March 2011, this time to further expand and clarify the definition of the so-called 'protected groups'. In particular, the definitions were extended to apply to individuals as well as identifiable groups. These changes affected subsections (1) and (2.1), as highlighted in the following:
A further amendment in 2015 expended on the notion of ‘intent’ and the criminality thereof, curiously enough inspired by recent European guidelines on intent rather than actual execution of sexual offences. The criminalising of intent has of course ling been a feature of the UK’s Public Order Acts and associated legislation intended to deal with racial and religious ‘crime’. 2015 also saw a further expansion and clarification of the term ‘writings’ to include modern-day media (‘telemedia’). 2021 saw two sets of minor tweaks. The first in January involved further wordsmithing in an attempt to fit the law into the digital age. Writings (Schrift), for example, became ‘content’ (Inhalt). September 2021 saw some further minor changes, updating references to other legislation and so forth.
The most recent changes though will warm the cockles of every Brexiteer’s heart since they came to be as a consequence of an infringement action by the EU Commission. ‘There but for the Grace of God go I’ will no doubt be the refrain. Along with Hungary and Luxembourg, the Federal Republic was taken to task in 2021 for supposedly failing to fully transpose certain aspects of the 2008 Directive on combating racism and xenophobia into national law. In particular, per the Commission’s complaint, the German legal system had failed to criminalise the public denial or gross trivialisation of ‘international crimes’. The Bundestag subsequently undertook to enact legislation to criminalise the public approval, denial and gross trivialisation of genocide, crimes against humanity and war crimes if the act is committed in a manner likely to incite hatred or violence and to disturb the public peace. This it duly did with the December 2022 amendments to § 130, resulting in the amended law as given in its entirety here:
So there we have it, an outline of the story of the current laws arrayed against Holocaust deniers in Germany, although of course it is not only deniers and (big r or little R) revisionists who get snared in the net, as the case of Markus Pohl, the press officer of the NPD depicts. Pohl received a four-month suspended sentence for Internet articles associated with the NPD's Ausländerstopp campaign against Islamic immigration. There was also the celebrated case of ex-Bundesbank board member Thilo Sarrazin, who se anti-immigration book Deutschland schafft sich ab (Germany is doing itself in) topped the bestseller lists for much of 2008 and 2009. Strident calls were made at the time from the usual quarters for Sarrazin's arraignment under § 130, but they have so far come to naught, the authorities having apparently satisfied themselves with his ousting from public office.
In a currently topical case, a blogger has been fined under § 130 for an article published online which included an image of the main gate to Auschwitz with the well-known slogan Arbeit Macht Frei replaced by the text Impfen Macht Frei (Vaccination makes you free). The prosecution maintained, and the court agreed that he had played down the mass murders committed by the National Socialists in the Third Reich in the concentration camps and at the same time suggested to opponents of the Covid measures that they "were being subjected to an injustice comparable to the atrocities of the Nazi era in order to aggressively emotionalise them in the manner of a mental fire accelerant". Clearly § 130 has come a long way since its simple origins in The Prussian Criminal Code, but probably its journey has probably no longer or more circuitous than that travelled by the Public Order Act and its raft of supporting legislation since its own humble origins in the 1930s.
It's also important to note that § 130's reach is not confined to the Federal Republic as Frederick Toben, Germar Rudolf and Heinz Zündel could all attest. Following rulings by the German Supreme Court, anyone, German citizen or not, who indulges in ‘content’ of a 'racialist' nature or which could otherwise be construed as such especially if he is generally vulnerable to denouncement by opponents or political adversaries. Those of us who travel frequently to Germany, or the neighbouring countries, might be well-advised to leave our laptops at home.
* Curiously the term
Auschwitz-Lüge (Auschwitz Lie) has taken on exactly the opposite meaning from its original sense. The term was first coined by ex-SS functionary Thies Christophersen who, in a 1974 pamphlet, disputed the existence of gas chambers at Auschwitz-Birkenau. Nowadays, its usage in the normative sense refers to telling lies about (eg minimising) Auschwitz rather than, as Thies intended, referring to the standard account as a Goebbelsian 'Big Lie'.
** The
Völkerstrafgesetzbuch (VStGB) is the international criminal code of the Federal Republic, introduced in 2002 to deal with crimes against humanity, including genocide. Interestingly such crimes were unrecognised in German law until that time.
