Unsuccessful constitutional complaint against criminal conviction for denial of the Nazi genocide

Press Release No. 67/2018 of 03 August 2018

Order of 22 June 2018

1 BvR 673/18

The criminal sanctioning of the denial of the Nazi genocide is, in principle, compatible with Art. 5(1) of the Basic Law (Grundgesetz – GG). This was the decision rendered by the Third Chamber of the First Senate in an order published today. The Chamber did not admit for decision a constitutional complaint directed against a criminal conviction for inciting hatred and violence against segments of the population (Volksverhetzung) by way of denial of crimes committed under Nazi rule, and specifically, the denial of the murders committed at the Auschwitz-Birkenau extermination camp. Disseminating factual claims that are demonstrably untrue and deliberately false does not contribute to the opinion-forming process; thus, it is not covered by the freedom of expression. In this regard, the complainant cannot invoke Art. 5(1) GG. To the extent that the complainant bases the denial of the Nazi genocide on purportedly subjective conclusions and appraisals, she can invoke the freedom of expression. The complainant’s conviction based on these statements constitutes an interference with this freedom; however, this interference is, in principle, justified under constitutional law. Denying the Nazi genocide crosses the boundaries of peaceful public discourse, thus generally evincing (Indizwirkung) a disturbance of the public peace.

Facts of the case:

1. The 89-year-old complainant has published various articles in which she contends that the mass murder of people of Jewish faith under Nazi rule did not actually take place and that it was impossible, in particular, for mass gassing to have been used in the Auschwitz-Birkenau extermination camp. Several of the articles present this contention as an established fact based on new evidence; as proof, the texts repeatedly refer, inter alia, to published written commands, which supposedly show that the exclusive purpose of the Auschwitz-Birkenau camp had been to ensure that the persons detained remained fit for labour in the arms industry. In addition, the articles cite several statements allegedly made by the management board of the Auschwitz-Birkenau Memorial and Museum, various historians, newspaper interviews and statements made by witnesses and eyewitnesses, identified by name, who were purportedly exposed as liars.

2. On the basis of these statements in the articles, the Local Court convicted the complainant of seven counts of Volksverhetzung and one count of attempted Volksverhetzung, and imposed an aggregate prison sentence (Gesamtfreiheitsstrafe) of two years and six months. On the complainant’s appeal on points of fact and law, the Verden Regional Court reduced the aggregate prison sentence to two years without parole, and rejected the appeal for the rest. The subsequent appeal on points of law was unsuccessful. The present constitutional complaint challenges these decisions.

Key considerations of the Chamber:

The constitutional complaint is unfounded because the challenged decisions do not violate the complainant’s fundamental rights. For the most part, the statements made by the complainant do not fall within the scope of protection of the freedom of expression. For the rest, the challenged decisions are also not objectionable under constitutional law.

a) The statements made by the complainant constitute factual claims that are demonstrably untrue and – according to the regular courts’ findings – ­also deliberately false; as such, they do not contribute to the opinion-forming process and do not fall within the freedom of expression. The fact that factual claims were made in connection with statements of opinion also does not merit a different conclusion.

b) To the extent that the complainant bases her denial of Nazi crimes on purportedly subjective conclusions and appraisals, invoking her freedom of expression, the criminal conviction of the complainant does not violate her fundamental rights. The criminal courts have interpreted and applied § 130(3) of the Criminal Code (Strafgesetzbuch ­– StGB) in a manner that is compatible with fundamental rights. When handing down the complainant’s conviction, the courts took into account, in particular, that interferences with the freedom of expression must not be directed against the purely intellectual effects of opinions, but must serve the protection of recognised legal interests instead. Based on the findings in the challenged decisions, the Regional Court could reasonably assume that the statements made by the complainant were capable of endangering the public peace.

aa) The constituent elements of the offences of approval and denial generally evince a disturbance to the public peace.

This was already expressly decided by the Federal Constitutional Court with regard to approval of the Nazi reign of violence and tyranny, the constituent element of the offence in § 130(4) StGB. Thus, publicly approving of the Nazi genocide, which constitutes a criminal offence under § 130(3) StGB, also crosses the boundaries of peaceful public discourse and evinces a disturbance of the public peace.

The same holds true for denial of these crimes as a constituent element of criminal liability. Such an act crosses the boundaries of peacefulness given that, against the background of German history, the denial of the Nazi genocide – in terms of contesting that these commonly known events took place – can only be understood as the trivialisation of these crimes, which leads to the legitimation and approval thereof. Thus, the effect of denying these crimes is similar to that of their approval, which is generally sanctioned under criminal law pursuant to § 140 StGB; it is furthermore equivalent to the glorification of the Nazi reign of violence and tyranny pursuant to § 130(4) StGB. Against the background of German history, denying the Nazi genocide is capable of provoking aggression on the part of addressees of the message, and of inciting them to take action against those perceived as being the authors of, or responsible for, the purported distortion of an alleged historical truth implicit in such denial. It thus inherently carries the danger that the political discourse will turn hostile and violent. This is the case not least because these crimes particularly targeted certain groups of persons or groups within society, and the denial of these events can and has been used, openly or insidiously, to instigate hostile actions targeting these very groups. In view of this, it is consistent that the explanatory memorandum to the legislative draft qualifies § 130(3) StGB as a specific manifestation of the offence of Volksverhetzung traditionally recognised under criminal law.

bb) Measured by these standards, the findings of the Regional Court provide a sufficient basis for the criminal conviction of the complainant. According to these findings, the complainant has repeatedly contested the systematic mass killings committed by Nazi Germany, and especially the genocide of Jewish persons. It is not discernible from these findings why, exceptionally, the denial of these crimes, which constitutes a constituent element of the offence, should not be capable of disturbing the public peace – despite the fact that fulfilling the constituent elements of the criminal offence evinces the contrary .

Indeed, in the complainant’s articles, the denial of the genocide is embedded in repeated requests directed at members of the Central Council of Jews in Germany (Zentralrat der Juden), demanding a rectification of the commonly accepted account of events that took place at Auschwitz; the articles thus exemplify the danger that was recognised by the legislature, namely that denying the genocide could intentionally serve to instigate hostile actions against the very groups of society that had been victims of that genocide. This intentionally and deliberately stirs opinion against Jewish members of the population and their representatives.

cc) Sentencing the complainant to an aggregate prison term of two years without parole satisfies the requirement of proportionality, also in this individual case. The sentence imposed remains within the broad margin of assessment afforded criminal courts.