Resistance

GERMAR RUDOLF, RESISTANCE IS OBLIGATORY§ 130. (4) With imprisonment or with a fine will be punished thosewho publicly or during a gathering disturb public peace in a way injuriousto the dignity of the victims by approving, glorifying or justifyingthe National Socialist violent and despotic rule…This amendment became effective on 2 March 2005.III. BackgroundThe conversion of the old [anti-Communist] article against incitingto class struggle into a – concise and yet pretty clear – penal normagainst inciting the masses with the act of 4 Aug. 1960 2 was a reactionto shocking realities of the time. 3 Decades later a plain misunderstandingof the so-called first Deckert verdict by the German Federal SupremeCourt of spring 1994 4 resulted in the public and the legislatureassuming that Auschwitz denial could not be punished, although thatwas untrue. Because already quite some time before that – nota bene:shortly before 8 May 1985 on the 40th anniversary of the German surrender– article 194 German Penal Code had been changed to the effectthat the denial of such NS crimes could be prosecuted ex officio as libel.5 The Federal Supreme Court had reversed the Deckert verdict ofthe lower court only because the ruling judges had only ascertained libel,but not the more severe offense of disparaging agitation (so-calledqualified Auschwitz lie according to article 130, paragraph 1 PenalCode). Yet the ebullient domestic and foreign indignation could nolonger be allayed by any explanation but at best only by a determined,although factually superfluous act of commitment by the legislature. 6Hence a new paragraph 3 was promptly added to article 130 Penal Codealready in October 1994. 7 From then on a simple denial, approval anddownplaying was punishable for two reasons: as libel with up to oneyear imprisonment and as inciting the masses with up to five years imprisonment.With an interesting restriction: social adequacy restricts theoffense in the sense that frowned-upon statements remain permitted, aslong as they serve the enlightenment of the citizens or similar purposes.8 Well over ten years later [German] politics – parties, parliament andgovernment, the German public at large – saw themselves confrontedby the puzzling question how to emerge unscathed from the 60th anniversaryof the war’s end on 8 May 2005. Considering the appallingboorish behavior by the [German right-wing party] NPD in the Saxonparliament and the depressing prospect of having to experience on TV306