Volksverhetzung

Volksverhetzung, in English "incitement of the masses", "instigation of the people" (the official English translation of the German Criminal Code uses "incitement to hatred"[1][2]), is a concept in German criminal law that refers to incitement to hatred against segments of the population and refers to calls for violent or arbitrary measures against them, including assaults against the human dignity of others by insulting, maliciously maligning, or defaming segments of the population.[1][2][3]

It is often applied to, though not limited to, trials relating to Holocaust denial in Germany. The criminal code (Strafgesetzbuch) Chapter 7 (Offences against public order), Paragraph 130 (Incitement to hatred) of the Federal Republic of Germany defines when a person is guilty of Volksverhetzung.[1][2][3]

The concept draws criticism by press and legal scholars for not being defined with the necessary definiteness and violating the principle of clarity and definiteness (Bestimmtheitsgrundsatz) and thus is called an elastic clause (Gummiparagraph) allowing in theory to punish nearly any political statment made and violating the freedom of speech.[4]

Constituent elements

Incitement of the People (Volksverhetzung) is defined by § 130 (Incitement to hatred) Section 1 of the Criminal Code:[1][2]

Section 1

Whosoever, in a manner capable of disturbing the public peace:
  1. incites hatred against a national, racial, religious group or a group defined by their ethnic origins, against segments of the population or individuals because of their belonging to one of the aforementioned groups or segments of the population or calls for violent or arbitrary measures against them; or
  2. assaults the human dignity of others by insulting, maliciously maligning an aforementioned group, segments of the population or individuals because of their belonging to one of the aforementioned groups or segments of the population, or defaming segments of the population,

shall be liable to imprisonment from three months to five years.[1][2]

On 21 January 2015, changes to the former text of § 130 Sections 2 and 5, with Section 6 becoming Section 7, took effect following European parliament amendments.[5] At present these changes are not reflected in the English translation of § 130 as updated in the original current German § 130.

Substantiation

Although freedom of speech is mentioned by Article 5 of the Grundgesetz (Germany's constitution), said article basically protects any non-outlawed speech. Restrictions exist, e.g. against personal insults, use of symbols of unconstitutional organizations, or Volksverhetzung. It is a common misconception that Volksverhetzung includes any spreading of Nazism, racist, or other discriminatory ideas. For any hate speech to be punishable as Volksverhetzung, the law requires that said speech be "qualified for disturbing public peace" either by inciting "hatred against parts of the populace" or calling for "acts of violence or despotism against them", or by attacking "the human dignity of others by reviling, maliciously making contemptible or slandering parts of the populace".

Application to offences committed abroad

Offences, that are committed in accordance with § 130 of the Criminal Code abroad, whether by German nationals or foreigners, can be pursued as a domestic crime, when they so act, as if they had been committed within the country, affecting the public peace in Germany and violate the human dignity of German citizens. It is sufficient, for example, that criminal content on the Internet, for example in the form of a HTML page, can be accessed from Germany.[6] Hence, for example, the jurisdiction of German courts can be applied for offences of sedition (Volksverhetzungsdelikte) committed abroad. Such an example, was the conviction of the Holocaust denier Ernst Zundel by the District Court of Mannheim in February 2007, who was convicted of inciting propaganda, that he had published from the US and Canada on the Internet.

History

Historically, the "Karlsbader Beschlüsse" of the German Confederation under Austria and led by Metternich included democratic ideals as well as agitation for one, unified German state as Volksverhetzung.

Similar laws in other countries

Further information: Hate speech and Fighting words

Similar laws exist around the world, for instance:

References

  1. 1 2 3 4 5 Bohlander, Michael (1998), Bundesministerium der Justiz und für Verbraucherschutz: GERMAN CRIMINAL CODE [Federal Ministry of Justice and Consumer Protection: GERMAN CRIMINAL CODE], Federal Ministry of Justice, Germany, para. 130 sec. 1
  2. 1 2 3 4 5 Bundesministerium der Justiz und für Verbraucherschutz: Strafgesetzbuch [Federal Ministry of Justice and Consumer Protection: Criminal Code] (in German), Federal Ministry of Justice, Germany, para. 130 sec. 1
  3. 1 2 Shoshan, Nitzan (2008), Reclaiming Germany: Young Right Extremists, the Return of the Nation, and the State of Politics on the Streets of East Berlin, 1, Chicago, Illinois: The University of Chicago, p. 183
  4. ↑ http://www.spiegel.de/spiegel/print/d-43065240.html
  5. ↑ http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl115s0010.pdf#__bgbl__%2F%2F*%5B%40attr_id%3D%27bgbl115s0010.pdf%27%5D__1438730698018 Neunundvierzigstes Gesetz zur Änderung des Strafgesetzbuches – Umsetzung europäischer Vorgaben zum Sexualstrafrecht. vom 21.01.2015 (in German), p. 11.
  6. ↑ BGH 1 StR 184/00 – Urteil vom 12. Dezember 2000 Landgericht Mannheim (BGH 1 StR 184/00 - Judgment of 12 December 2000 District Court of Mannheim, in German
  7. ↑ http://www.notisum.se/rnp/sls/lag/19620700.HTM#AVD2KAP16PAR8

Further reading

External links

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