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Volksverhetzung

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Volksverhetzung, in English "incitement to hatred" (used also in the official English translation of the German Criminal Code),[1][2] "incitement of popular hatred", "incitement of the masses", or "instigation of the people", 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]

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.[4] 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 Basic Law (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. 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". "Germany places strict limits on speech and expression when it comes to right-wing extremism" or anything reminiscent of Nazism.[5] Hate speech on the basis of sexual orientation and gender identity also is banned in Germany.[6]

Application to offences committed abroad

Offences contrary to § 130 of the Criminal Code committed 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 violating 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.[7] 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 Zündel by the District Court of Mannheim in February 2007, who was convicted of inciting propaganda 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:

  • In Austria, Verhetzung is a criminal offense with similar legal elements under section 283 of the Penal Code.
  • In the UK, incitement to ethnic or racial hatred is a criminal offense under Sections 17–29 of the Public Order Act 1986.
  • In Ireland, the corresponding law is the Prohibition of Incitement to Hatred Act.
  • A similar law exists in Sweden as hets mot folkgrupp ("agitation against a population group"), second section 16th chapter 8§ of the criminal code.[8]
  • The Finnish criminal code includes a similar law, which calls the crime kiihottaminen kansanryhmää vastaan ("incitement against ethnic groups") in the Finnish version, hets mot folkgrupp in the Swedish version: 11th chapter ("On War Crimes and Crimes against Humanity"), 8§.
  • The Russian Criminal Code such a law called the "incitement of ethnic hatred", which refers to actions aimed at inciting ethnic or racial hatred (Article 282 of the Criminal Code of the Russian Federation). Article 29 of the Constitution states that: Propaganda or campaigning inciting social, racial, national or religious hatred or enmity. The propaganda of social, racial, national, religious or linguistic superiority.[clarification needed]

See also

References

  1. ^ a b c d e 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. ^ a b c d e 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. ^ a b Shoshan, Nitzan (2008), Reclaiming Germany: Young Right Extremists, the Return of the Nation, and the State of Politics on the Streets of East Berlin, vol. 1, Chicago, Illinois: The University of Chicago, p. 183, ISBN 9780549931096
  4. ^ 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.
  5. ^ Anna Sauerbrey, "How Germany Deals With Neo-Nazis", NYT, Aug. 23, 2017.
  6. ^ Strafgesetzbuch: Volksverhetzung
  7. ^ 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
  8. ^ "The Swedish Criminal Code". 11 June 2015.

Further reading

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