Photo: Seat of the Federal Administrative Court in Leipzig, Germany.

Freedom of Expression: Germany Quietly Tightens Law To Punish Denial, Trivialization of War Crimes And Genocide

The German Bundestag has quietly amended a law which now makes punishable the approval, denial and trivialization of genocide and war crimes.

A new paragraph 5 has now been added to Paragraph 130 of the Criminal Code (incitement of the people). According to the new paragraph 5, the public denial and “gross” trivialization of other genocides as well as crimes against humanity and war crimes are punishable with a prison sentence of up to three years or a fine:

“Anyone who publicly commits an act of the type specified in Sections 6 to 12 of the Code of Crimes against International Law against one of the groups of persons specified in paragraph 1 number 1 or against an individual because of his membership in one of these groups of persons shall be punished with imprisonment of up to three years or a fine or, in any gathering, approves, denies, or grossly belittles such as is likely to incite hatred or violence against such person or majority of persons and to disturb public peace.”

The restriction is that the statement must be “suitable” for disturbing the public peace and inciting hatred or violence.

So far, only the approval of criminal offences of all kinds (section 140 of the Criminal Code) and the denial and trivialization of the Holocaust (section 130, paragraph 3) were punishable.

The public prosecutor’s office decides which statements are to be prosecuted in the case of such vague terms. But in Germany, according to paragraph 146 of the Courts Constitution Act, ”The officials of the public prosecutor’s office have to follow the official instructions of their superiors.”

In other words, the Federal Ministry of Justice has the last word on who the office of the public prosecutor may or may not investigate.

The tightening of criminal law was based on an initially non-public “formulation aid” from the Ministry of Justice. The legal committee decided on Wednesday to place the proposal in a harmless law on the federal central register, which meant that a first reading could be dispensed with.

Just one day later, the Bundestag finally decided on the change – as the last item on the agenda shortly before 11 p.m. The AfD and Die Linke voted against the amendment, while the federal government coalition – SPD, FDP and the Greens – voted for.

The new amendment means that anyone who contradicts the official position of the German government regarding alleged war crimes or genocides can be prosecuted and punished. In practice, the law will deter people from criticizing and asking questions while giving the government a new instrument to control public opinion.

The law would apply, for example, to the denial and trivialization of alleged Russian war crimes in Ukraine. The Ministry of Justice stressed that the tightening of criminal law had nothing to do with the Ukraine war.

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