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(Nov 20, 2009) In a ruling issued on November 4, 2009, Germany's Federal Constitutional Court (CC) upheld legislation against incitement to hatred that bans public support and justification of the country's former Nazi regime. The recent decision was based on a challenge brought before the CC against a ruling of the Federal Administrative Court, to determine whether article 130 of the Penal Code conforms to article 5 of the Basic Law (on freedom of opinion and speech). The case was brought by Jürgen Rieger, a Hamburg lawyer and deputy chairman of the National Democratic Party of Germany, which has been characterized as a far-right group. (Sarah Miley, Germany Constitutional Court Upholds Ban on Public Support of Nazi Regime, PAPERCHASE NEWSBURST, Nov. 17, 2009, available at http://jurist.law.pitt.edu/paperchase/2009/11/germany-constitutional-cou
rt-upholds.php
; Allen Hall, Germany's Pro-Hitler Party Plans "Training Centre," THE INDEPENDENT, July 30, 2009, available at http://www.independent.co.uk/news/world/europe/germanys-prohitler-party-
plans-training-centre-1764700.html
.)

Article 130, paragraph 4, of the Penal Code (under an amendment to the law that was adopted in 2005) prescribes that anyone who "approves of, glorifies or justifies the violent and despotic rule of the National Socialists" in a way that "disturbs the public peace in a manner that violates the dignity of the victims" will face a penalty of up to three years' imprisonment. (Dietmar Hipp, Constitutional Court OKs Curtailing of Free Speech, Nov. 18, 2009, available at http://www.spiegel.de/international/germany/0,1518,662031,00.html; Penal Code (Strafgesetzbuch) [in German], German Federal Ministry of Justice website, http://www.gesetze-im-internet.de/stgb/ (last visited Nov. 20, 2009).)

The legislation was upheld even though it constitutes an exception to the protection of freedom of speech under the German Constitution (the Basic Law). The CC also found that bans placed on neo-Nazi assemblies by an administrative court can be considered a logical extension of the Penal Code provision. (Hipp, supra.) The CC maintained that special circumstances pertained in the instance of activities in support of the former Nazi regime. (Miley, supra.)

More specifically, the Basic Law permits limitations of freedom of speech only if they are based on a "general law" (art. 5, para. 2). The justices held that the Penal Code provision is not a general law; also, prior decisions have also held "that such a law cannot 'be directed toward the expression of an opinion as such,'" but must "protect a 'legal right per se, without regard for a certain opinion.'" (Hipp, supra.) Nevertheless, the judges maintained, for the reason that the Basic Law can "almost be understood as the exact opposite of the totalitarianism of the Nazi regime," it is permissible to have "regulations that set limits on the propagandistic endorsement" of that regime and this may be, "as an exceptional circumstance," "a targeted restriction on one's freedom of speech." (Id.) Thus, the CC claimed, "the restriction was necessary to protect public peace and the dignity of the victims of the Nazis, which are 'supreme constitutional values.'" (Miley, supra; see also the text of the CC decision, 1 BvR 2150/08 of Nov. 4, 2009, available at http://www.bundesverfassungsgericht.de/entscheidungen/rs20091104_1bvr215
008.html
.)

Even though petitioner Rieger died suddenly in October 2009 and German law typically prescribes closing a case if a complainant dies, the justices deemed it "warranted to still deliver a judgment that was long in the making." In their view, the decision was of "general constitutional significance," because it would "clarify a legal issue that 'transcended the highly personal matter of the complainant' and applied to 'a number of future gatherings.'" (Hipp, supra.)

Author: Wendy Zeldin More by this author
Topic: Freedom of speech More on this topic
Jurisdiction: Germany More about this jurisdiction

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Last updated: 11/20/2009