Germar Rudolf, Resistance Is Obligatory (2012; PDF-Datei

GERMAR RUDOLF, RESISTANCE IS OBLIGATORY
Will the legislature find the strength to change course? Or will it
sooner or later and quite to the contrary patch up article 130 German
Penal Code by adding yet another level to it according to the current
needs of the day, as it is already a tradition and promises the applause of
at least the leading media? Then only the German Federal Constitutional
High Court would be the last hope.
Notes
1
310
“Gesetz zur Änderung des Versammlungsgesetzes und des Strafgesetzbuchs,” Bundesgesetzblatt.
I 2005, 969. Art. 1 of the law mandates the tightening of art. 15 of the Law of Assembly
(re. Holocaust memorials and others), art. 2 the change of art. 130 Penal Code.
2
“He who in a way capable of disturbing public peace attacks the human dignity of others by
1. inciting to hatred against parts of the population,
2. calls for violence or acts of despotism against them or
3. insults them, maliciously exposes them to disdain or slanders them, will be punished with
imprisonment not under three months.”
3
Namely the Hamburg case Nieland (cf. about this BGH, Neue Juristische Wochenschrift (NJW)
1959, 1593), about vandalism and graffiti, although a part of these cases are likely to have been
controlled provocations (lit. reference in Bertram, NJW 1999, 3544).
4
BGHSt 40, 97 = NJW 1994, 1421: The indicted NPD functionary had acted in a noticeably
approving way as an interpreter of a presentation by the U.S. Holocaust denier Fred Leuchter
during a public convention.
5
The VI. Senate of Civil Law of the BGH had decided on 30 Nov. 1978 (BGHSt 75, 160 = NJW
1980, 45) that the denial of the National Socialist murders of the Jews inheres a slander of the
German Jews – a thesis which was subsequently unanimously followed by the jurisdiction.
6
More about this Bertram, NJW 1994, 2002.
7
Law on Combating Crimes of 28 Oct. 1994; at that opportunity paragraph 2 was inserted as
well, which outlaws inciting the masses by way of writings and other means.
8
This results from the reference given in art. 130, para. VI, to art. 86, para. III, Penal Code. On
the arbitrariness of the positive and negative attributions mandated by this see Bertram, NJW
2002, 111.
9
Cf. arts. 86 1 no. 4, 86a Penal Code.
10
Cf. Zypries: “Strafrecht im Kampf gegen Rechtsextremismus verschärfen,” Federal Ministry of
Justice, BMJ-Newsletter, of 11 Feb. 2005.
11
With its interpretive guidelines, the press release of the Federal Ministry of Justice of 11 March
2005 matches the one of 11 Feb. 2005, like two peas in a pod – despite minor text changes in
the draft itself.
12
Poscher, NJW 2005, 1316, considers this an “actionistic looking, major effort by the legislator.”
13
Cf. e.g. Wandres, Die Strafbarkeit des Auschwitz-Leugnens, 2000, pp. 269f, 276–303, 304ff. a.
passim: currently probably the most thorough examination of the topic; Beisel, NJW 1995, 997
(1200f); Huster, NJW 1996, 487; Junge, Das Schutzgut des § 130 StGB, 2000, pp. 102ff. (124,
153f.); Jahn, Strafrechtliche Mittel gegen Rechtsextremismus, 1998, pp. 166ff. (204–208);
Brugger, AöR 2003, 372 (on art. 130 III Penal Code, esp. pp. 402–409); Lackner, StGB, 21nd
ed. (1995), esp. art. 130 Rdnr. 8; Tröndle/Fischer, StGB, 52nd ed. (2004), esp. art. 130 Rdnrn
23–25; Lenkner, in: Schönke/Schröder, StGB, 26th ed. (2001), art. 130 Rdnrn. la, 16–21; earlier
already Köhler, NJW 1985, 2389. On the question of the punishablility of the denial of acts of
genocide due to concerns of foreign politics cf. Brugger, AöR 2003, 372 (fn. 22 with further
ref.); on “protection of the climate” as an (allegedly legitimate) good deserving legal protection
cf. Bubnoff, in: LK, 11th ed. (1996), art. 130 Rdnr. 43 with further ref.; doubtful also Poscher,
NJW 2005, 1316 (1317), under IV with fn. 15.
14
Wandres (op. cit, fn. 13), pp. 71–79, sketches the history of denial, which had its origin abroad
(Rassinier, Faurisson, Christophersen and others) and was then picked up domestically.
“Auschwitz” as such is not only the name for the historical extermination camp but beyond that