Resistance

GERMAR RUDOLF, RESISTANCE IS OBLIGATORYreal conflict is most frequently between citizen and government whendealing with problems of civil rights: 152“Seen from their historical development, the function of civilrights is at first that they are a defense right of the citizen against thedeployment of governmental power (BVerfG 1, 104). According tojurisdiction, this is also their primary and central dimension of efficacytoday (BVerfG 50, 337).”There can be no doubt that article 130 of the German Penal Code asa special law aiming at certain opinions is in violation of the principleof general laws and is therefore unconstitutional. And although this isself-evident, both the German Supreme Court and the ConstitutionalHigh Court ignore this fact in all their decisions in matters as the currentone and act and sentence against all their other fundamental verdicts inall other cases about free speech. They even exacerbate the already unconstitutionallegal situation by further eroding the civil right, especiallyby preventing an effective defense by means of enforcing the misuseof the rule of self-evidence and by prosecuting defense lawyers.In my view one of the causes for this behavior especially of the ConstitutionalHigh Court is that the judges of this court are appointedbased on a political horse-trading between the dominating political partiesin Germany, where political party affiliation and party loyalty is attimes more important than judicial competence. A classic example forthis was the appointment of Jutta Limbach – as quota Social-Democrat– to the Presidency of the Constitutional High Court, although she hadalmost no professional experience in law. That led to unmistakable criticismeven in legal journals. Considering such circumstances, one has toask in what sense we can still speak of a separation of powers in Germany.Hence, the question about the right to resist according to article 20,paragraph 4, of the German Basic Law imposes itself once more, aboutwhich I will say more later on.3. Protection of the YouthAs a third legal restriction of free speech in Germany I will now discussthe Law for the Protection of the Youth, which I am said to haveviolated as well.152 K.-H. Seifert, D. Hömig, op.cit. (note. 148), pp. 28f.129