The Federal Republic of Germany enjoys
a worldwide reputation as a functioning,
well organized country under the rule of law
that protects freedom and democracy.
The Germans themselves have a reputation
for organizing all kinds of things well,
and the quality of German products is universally recognized.
When it comes to freedom and democracy, however,
the historical record of the Germans is not quite so favorable,
despite the insistence of the rulers of today’s German state
that the record has changed profoundly
in the time since the end of World War II.
And how about the rule of law in that country?
The independence and non-partisanship
of the judiciary in Germany is older than the liberal democracy.
It goes back to Frederick the Great,
who made the king himself subject to the law in Prussia.
He thereby introduced a principle that set a new standard for the whole of Germany.
Frederick the Great once described this principle
of the independence and nonpartisanship of the judiciary as follows:
“You need to know that the least of peasants,
and what is even more, the beggar
is just as much a human being as is his majesty,
and he has to find justice by the fact
that all humans are equal before the law;
it may be a prince suing a peasant
or vice versa,
then the prince will be equal to the peasant before the law;
and in such affairs, it has to proceed purely by justice with no regard to the person.
The justice councils in all provinces have to only comply with this.
And wherever they do not go straight forward with justice
without regard to person or class and put aside natural justness,
they shall get in trouble with his royal majesty.
A legal council which exercises injustices
is more dangerous and worse than a gang of thieves;
one can protect oneself against those,
but nobody can protect himself against rogues
who use the robes of justice to carry out their vicious passions;
they are worse than the biggest scoundrels in the world and deserve double punishment.”
The image of the German judiciary in the eyes of its own constituents
is best gauged by the respect with which the highest court in Germany is regarded:
the Federal Constitutional Court.
Surveys have shown that for decades the Federal Constitutional Court,
see the red bars,
has been able to maintain a reasonably consistent lead
over the other branches of the government
—the German parliament called the Bundestag, and the executive branch.
Among the Germans,
it is exceeded in prestige only by that enjoyed by the president; see the green bars.
The great prestige of the Federal Constitutional Court
even inspired a special study by German scholars,
from which the previously shown chart was taken.
The German justice system also enjoys a stellar reputation internationally.
For example, a decision by a U.S. federal court
that denied the application for asylum in the United States, filed by a German,
noted that Germany has a “highly developed and sophisticated legal system,”
from which no unjust persecution could emerge.
The lofty reputation of the German justice system,
together with economic prosperity and political freedoms
has led to Germany’s becoming a magnet
for political as well as economic refugees ever since the 1960s.
In this connection, an asylum case is of interest
that was mentioned in an article by Ingo Müller
in the German journal
"Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft,"
that is: Critical Quarterly of Legislation and Jurisprudence.
It had to do with the Turkish defense lawyer Şerafettin Kaya,
here a more recent portrait of him,
who in the early 1980s fled to Germany
and there sought asylum from persecution by Turkish military tribunals.
In his application for asylum,
Kaya portrayed the Turkish military criminal law as unmistakably repressive,
meaning that trials conducted by it
automatically ought to be considered persecutorial in nature.
The German federal agency for the recognition of foreign refugees
nonetheless denied Kaya asylum in 1982 with the following justification, quote:
“The Agency is in possession of an affidavit of the Max Planck Institute,
that contains among other things a comprehensive comparison
of the Turkish Code of Military Criminal Procedure
with the German Code of Criminal Procedure.
This comparison reflects a general congruence
and even at points a more-liberal stance
of the Turkish Code of Military Criminal Procedure …”
Turkey at the time was unequivocally a repressive military dictatorship,
not a modern liberal-democratic country under the rule of law.
The German Code of Criminal Procedure prescribes how criminal proceedings are to be conducted.
As such, it is one of the most-important legal guidelines of the German justice system.
What, then, might one make of the fact that German legal scholars,
represented by researchers of a Max Planck Institute,
in agreement with an agency of the German federal government,
reported in the early 1980s
that this legal guideline is at points less-liberal
than that of a regime that ranks as a thoroughly repressive military dictatorship?
That would seem to say
that the German Code of Criminal Procedure of that time, formally speaking,
permitted a more repressive administration of justice
than the Turkish Code of Military Criminal Procedure.
Well, great!
I will return to this article by Ingo Müller again later.
Some aspects of the German judicial system are discussed in the following.
They will not be compared with the irrelevant laws of a military dictatorship,
but rather with those western ideals
that the Federal Republic of Germany boasts of far and wide on its banners
when it proclaims itself to be a country under the rule of law.
To start with, we will consider who may introduce evidence in German criminal trials.
According to Section 214 of the German Code of Criminal Procedure,
witnesses are summoned by the judge or by the district attorney,
and evidence of other kinds is usually introduced by the district attorney,
although the judge also has the power to do so.
Section 245 of the German Code of Criminal Procedure says in Clause 1, quote:
“The taking of evidence shall be extended to all witnesses and experts
who were summoned by the court and who appeared,
as well as to the other evidence produced by the court or the public prosecution office
pursuant to Section 214 subsection (4), […]”
Do you notice anything?
There’s no mention of the defense.
The version of this paragraph in effect until 1975
read to the contrary as follows, quote:
“The taking of evidence shall be extended to all witnesses and experts
who were summoned and who appeared,
as well as to the other evidence produced […]”
Where previously the defense could force the introduction of evidence
when this evidence had already been “produced,”
that is, was present in the courtroom,
since then the defense must first file a motion to introduce anything they wish to introduce,
as stated in the new Clause 2 of this paragraph.
The court can, however, deny these motions on a plethora of grounds.
This list has likewise been greatly expanded vis-à-vis the version of 1975,
which contained only the first two items:
– if the evidence is inadmissible,
– if the application has been filed for the purpose of protracting the proceedings,
– if the fact for which evidence is to be furnished has already been proved,
– if taking the evidence is superfluous due to common knowledge,
– if there is no connection between the fact and the matter being adjudicated, and
– if the evidence is completely unsuitable.
I won’t elaborate here on each and every point,
but will rather concentrate on two grounds of denial in this list,
in which one can see what traps the state has set.
Any introduction of evidence is inadmissible where it is in any way contrary to law.
This becomes problematic when case law has declared it a crime in certain cases
to merely make certain claims about what a certain piece of evidence is supposed to prove.
This condition was reached in Germany in the mid-1990s.
I will get back to that later.
The common-knowledge formula appears already in Section 244
of the German Code of Criminal Procedure.
It comprehensively covers the taking of evidence,
therefore, among other things, also evidence that is not yet present in the courtroom,
and so must first be procured.
The list of possible grounds for denial is here still longer.
Among other things, this paragraph also empowers the court to totally bar the procurement,
that is to say, the acquisition of evidence
when the court avers already to know the truth of the matter,
no matter whether this truth is in accordance with the claims made by a motion or not.
In Galileo Galilei’s time, for example,
it was common knowledge that the sun rotated around the earth.
Under the application of a similar juridical logic
the Inquisition forbade the accused to prove the contrary,
since the court pretended to know what was true.
Thus, Giordano Bruno ended up burning at the stake,
and Galileo in lifelong house arrest.
Section 245 of the German Code of Criminal Procedure
limits this absolute judicial power to declare what is true
by declaring something to be common knowledge.
It stipulates that a piece of evidence already present in the courtroom
can be rejected on grounds of common knowledge only,
if the claim to be proven is evidently true.
Hence, the court needs to acknowledge
that claims made in a motion about the evidence are true.
However, this has not deterred German judges from barring such evidence anyway,
when in a legal fix,
by determining the claims about the evidence to be manifestly false.
More on this later.
The gross imbalance of power between defense and prosecution in the admissibility of evidence,
by the way,
violates the spirit of the European Convention on Human Rights,
in which in Clause 3 of Article 6 it is stated
that every defendant is to be guaranteed the right, quote
“to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him.”
Oddly, the convention speaks only of witnesses,
as though there were no other kinds of evidence.
Now we come to another subject,
the ways and means by which German judges deal with evidence.
Section 261 of the German Code of Criminal Procedure says, quote:
“The court shall decide on the result of the evidence taken
according to its free conviction gained from the hearing as a whole.”
Therefore, according to German criminal-justice law
only the judges who have conducted a criminal trial
are empowered at their discretion to interpret the proffered evidence,
and based thereon, to pronounce a verdict.
Thereby, they are constrained by absolutely nothing—
neither by logic nor by truthfulness nor by honesty.
In other words: this is a blank check for German judges
to err with no correction and to lie and swindle with impunity.
This might sound harsh.
The fact is, however, that precisely because of this logic,
no sort of verbatim transcript is taken in German courtrooms.
This is even the case
where the content of the introduction of evidence is at least recorded in summary,
such as during criminal trials before County Courts,
as prescribed by Section 273, Clause 2 of the German Code of Criminal Procedure.
The criminal court judge therein named
and the court with lay judges
are institutions of the County Court.
However, absolutely no evidentiary value inheres in these summary transcripts
as concerns the content of the argument.
Section 274 of the German Code of Criminal Procedure provides
that the evidentiary import of the transcript is strictly limited
to the recorded formalities
—at least the legal scholars interpret this legalese in such a way.
So, when the transcript covering the proceedings before the County Court states
that Witness X testified on day Y and stated
that he saw a red car speed around a curve,
the evidentiary content extends only to the fact
that the witness testified on that day,
but not what he actually said.
When the judges then write in the verdict that the witness said
he saw a green truck sitting by the side of the road,
the judges are right and not the transcript,
and that’s that!
And if you’re not entirely convinced,
just look it up in Wikipedia.
We must, unfortunately, read a couple more sections of that law
to understand what really goes on in German courts.
I beg a little patience for this.
In Germany, as mentioned,
only a brief summarizing transcript of content is made in the County Courts.
And why?
Well, the reason for this brief summary lies in the fact
that one can file for an appeal on the facts of the case
against the verdict of a County Court.
If the appeal is granted, the court of the second instance must take all evidence anew.
See Section 328 of the German Code of Criminal Procedure.
In order that the judges can shorten the proceedings in the second instance,
they can consult the transcript of the County Court
for what happened in that court in the first instance.
That can save them work.
Interestingly, one cannot file for an appeal on the facts of the case
against the verdict of the first instance,
if that verdict was handed down by a criminal division of a District Court
or a Higher Regional Court.
One may only apply for a so-called revision of the verdict.
A revision concerns only matters of law,
meaning that one may only claim that some formalities were disregarded
or that some other law was violated.
It is not permitted to contest anything about the matters of fact, that is,
about the factual findings stated in the verdict.
Because strictly legally speaking it is therefore totally irrelevant
what transpired before the District Courts,
these courts merely produce a record of formalities
as set forth in the first clause of Section 273 of the German Code of Criminal Procedure.
In such a protocol of formalities,
one might for example read that Witness X testified on day Y,
but no trace whatever will be found as to what was testified.
Judicial absolutism reigns also
as to the interpretation of documents and material evidence.
If in the taking of evidence a document is introduced that clearly proves Fact A,
yet the court writes in the verdict that the document refutes Fact A,
then the court is right.
It has final disposition in the interpretation of the evidence produced.
In the case of a verdict of a District Court,
there is no possibility whatever of contestation.
Until the revision of 1965,
the German Code of Criminal Procedure
still made it the duty of all courts to record at least, quote
“[t]he main outcome of examinations at the main hearing.” – unquote
But since no appeal on the facts of the verdicts
of German District Courts is possible in any case,
the revision of 1975 relieved them of this duty.
There is some fine logic to this:
since errors and lies committed by German judges of the District Court
cannot be contested anyway,
there’s no need to even record what goes on in the courtroom.
Great!
This is the logic of terrorism!
For criminal trials that are first conducted at the District Court level,
it’s pretty much all or nothing for the defendant.
He is tried there for particularly serious offenses
that carry potential sentences of more than four years.
Those interested may look this up in Paragraphs 24 and 74
of the German Code on Court Constitution.
Here, I won’t annoy you any further with this welter of legal verbiage.
It would be important precisely in these cases
where no possibility of appeal on the facts exists,
that the judges, in their own interest,
get the facts right at this first and only time.
But how can this be done without a verbatim transcript?
This absolute prerogative in the absence of a verbatim transcript
has led to repeated harsh criticism.
One of the most-prominent critics is the former defense attorney Rolf Bossi,
who described and criticized this egregious defect in German criminal procedure
in his book "Halbgötter in Schwarz" ("Demigods in Black").
Here is a description of this problem
that was broadcast by the German TV channel 3Sat
on the occasion of the release of Bossi’s book in 2005:
“A defense lawyer indicts.
Star defender Rolf Bossi aims serious charges against the German judiciary.
The unaccountability of judges, impunity and scandalous, wrong judgments
render the rule of law in Germany a fiction,
writes Bossi in his provocative book ‘Demigods in Black.’
Today, anyone could fall victim to a ruling that is utterly immune to effective oversight.
‘There is no requirement for verbatim transcripts
for Penal Chambers of District Courts and even worse, for Jury Courts.
There the judge can do whatever he likes.
As a defense lawyer, I have no possibility of objection
between the revelations of the investigation, the taking of evidence,
and whatever he writes in his verdict.
And I have no appeal.’
Thus, any judge can hide behind a mere authoritative-sounding verdict
with no fear of correction.
Today, even many judges agree
that there is too little effective oversight in the German judicial system.
‘Bossi’s book comes at the right time.
Whether intentionally or not, he has good timing,
as the justice minister’s conference is in fact looking at a major structural reform.’”
Since then, the German Code of Criminal Procedure has been revised several times,
but in this regard, nothing has happened.
Quite the contrary.
Because some defense attorneys challenged the omnipotence of German judges
and filed uncomfortable motions to introduce evidence,
a section was slipped in in 1994
that empowers the court to gag the defense attorneys as they see fit—
with the exception of the closing argument.
Here is the text of the scandalous Section 257a, quote:
“The court may require participants in the proceedings
to file applications and proposals regarding questions of procedure in written form.” – unquote
Since this applies to all parties to the proceeding,
this sounds nicely neutral,
but in fact this section is aimed exclusively at defense attorneys in order to gag them.
Therewith, the right to a public hearing guaranteed as a civil right is undermined,
since once a judge has denied the defense its voice,
the public thereafter may learn only
whatever the prosecutors and the judge happen to mention.
Further, one may confidently assume that many motions
that in the course of argument often arise spontaneously
and are therefore rendered orally,
by effect of this ruling of the judge, are never made.
Section 249 of the German Code of Criminal Procedure is of similar import.
It allows the judge to stipulate that documents entered into evidence
may not be read out in public.
Instead, parties to the trial must read them in private.
That is, they must take the documents home with them and read them in seclusion—
or they must at least certify on the day designated for this that they have read them.
Whether they really have, is not verified.
In extreme cases where all the evidence is in documents that must be read in seclusion,
this means that the public finds out absolutely nothing about the content of any evidence.
This also makes a mockery of the principle of public hearings.
Of both of these muzzling provisions, Dr. Dr. Uwe Scheffler,
Professor of Criminal Justice at the Europa University in Frankfurt on the Oder, wrote, quote:
“According to this rule [that is, Section 257a],
the court can now deprive the parties to the trial of their voices
and confine them to written form.
How convenient:
Since earlier laws had already provided for the option to read out documents
by not reading them out,
that is, by giving the parties to the action the opportunity
to, quote–unquote, ‘become familiar’ with the text of the documents in quiet seclusion,
this means that one can now maintain the silence of the grave in the courtroom.
In addition to frequently voiced criticisms, the following may be pointed out:
the legislature has clearly stated
that this new regulation, quote–unquote,‘streamlines’ the trial.
Because writing and reading what was written takes longer than an oral argument,
this means that the legislature downright aims at
dispensing with the right to a legal hearing.”
There are many further modifications to the procedural law
that are detrimental to defendants.
I can’t explore them all here.
A list of some of these sections in question can be found in Footnote 5
of Rainer Hamm’s article on the
“Evidence as a Legal Concept and Its Scrutiny during Legal Revisions”
that can be found in the "Festschrift für Gerhard Fezer" cited here.
If you are interested in further details of the historical development
of the Code of Criminal Procedure in the Federal Republic of Germany,
I recommend reading the previously mentioned article by Ingo Müller.
He describes therein how salutary departures were undertaken after the Second World War
to make the German Code of Criminal Procedure more liberal
after it had been decimated to the detriment of defendants under National Socialism.
A countermovement developed in the 1970s, however,
in response to the terrorism of the Red Army Faction
in which all the liberal reforms were reversed.
Thereafter followed wave after wave of, quote–unquote, “deliberalization,”
so that one can now rightly say that today the German Code of Criminal Procedure
is more-repressive than it was under National Socialism.
Indeed, the historical origin of the German Code of Criminal Procedure is anything but liberal.
It was created in 1877, that is, during the time of the Second German Empire.
That could explain why it includes no verbatim transcript requirement,
although other countries at the time already had verbatim transcript requirements.
It must have been a major undertaking at the time
to complete a verbatim transcript of what was said in the courtroom.
For that, stenographers were needed and then typists.
There is today, however, no excuse anymore not to maintain verbatim transcripts
in police interrogation rooms and in courtrooms.
In this age of the supercomputers,
automatic voice-recognition software is employed by default:
in the courtrooms of most other countries of the world, in the mass media, in medicine, etc.
What has been common practice in most western countries for centuries,
isn’t even discussed in Germany.
The plans in the works
for a general overhaul of the German Code of Criminal Procedure
foresees no such change.
All that is new, is that the police and the courts are allowed
to video-record certain witness interrogations.
No requirement for the creation of verbatim transcripts
of what transpires in interrogation rooms or courtrooms,
nor even the possibility of such as evidence for appeals and revisions is in prospect.
In a contribution to the Petersberg Days of the Criminal Law Study Group
of the German Bar Association,
Prof. Dr. Werner Leitner noted, quote:
“The German criminal justice system still has […] medieval tendencies
and shields itself, without really sound arguments,
from adaptation to present-day technical and pertinent conditions.”
Just as little is it planned to impose definite limits
on the totalitarian power of judges to evaluate evidence,
such as that one would require that the evaluation be logical
and be internally free of contradictions and with regard to the evidence.
But without a verbatim transcript,
the logical conclusiveness would be hard to determine,
and any contradiction to witness testimony could never be even considered.
For this reason, the impending reform of the German Code of Criminal Procedure
was correctly called a “missed opportunity” in an article in the
"Kriminalpolitisch Zeitschrift"
(that is: "Journal of Criminal Justice").
Whether one considers the Turkish military dictatorship,
Stalin’s Soviet Union
or today’s Federal Republic of Germany:
for fraudsters, thieves, thugs, extortionists and murderers
things went and still today go little differently,
and most people have little sympathy for such miscreants anyway.
So, let us focus on those innocents who get caught up in the wheels of the justice system.
One of the functions of a legal system should be
to prevent judges from making avoidable mistakes and errors
which are detrimental to the innocent.
It is even much more-important, however,
to prevent the misuse of the justice system
to suppress the civil rights of individuals or groups.
The first mark of the quality of a justice system appears
when it affords to defendants adequate protection even in such cases
where the taboos of a society are touched in any way.
It is then that an unspoken prejudice reigns among practically all members of a society
to regard certain views as evil and punishable,
no matter how peaceable such views might be.
Unfortunately, Germany has a long history of persecuting dissidents
by means of the criminal justice system.
It reaches back long before the National Socialist period.
Section 100 of the Prussian Criminal Code of 1794 can serve here as the earliest forerunner.
It threatened with four- to six-month prison terms those
who in sermons or public speeches called out for hatred or ill feeling against any religion.
This section, which was considerably more-specific and gentler
than all the laws that were to follow,
reflected the tolerance of religion reigning in Prussia.
Far more-repressive was Section 17 of a Prussian decree of 1849
that followed the suppressed revolution of 1848.
It threatened with fines or prison terms of four weeks to two years those who—quote:
“sought to disturb the public peace
by publicly inciting citizens of the state to hate or disdain one another.”
In the eyes of the rulers,
this step had become necessary
because the 1848 revolution made it impossible to maintain pre-emptive government censorship.
The new paragraph slipped censorship back in through the back door
by motivating citizens to censor themselves in order to avoid punishment.
This kind of censorship after the fact is considerably subtler
and therefore less vulnerable to attack.
Two years later, in 1851,
this paragraph resurrected in slightly reworded form
the old Section 100 of the Prussian criminal code
and so became the direct forerunner of today’s Section 130 – “Incitement of the People.”
Its first version, Section 130 of the Reich Criminal Code,
in effect since 1872,
forbade only class incitement, however,
meaning the “class-warfare propaganda”
disseminated by communists, socialists and social democrats. To-wit:
“Whosoever in such a manner as to endanger public order
publicly incites different classes of the populace to take violent action against each other
will be punished with fine […] or imprisonment up to two years.”
This paragraph remained essentially unchanged until 1960,
but nothing that was prosecuted in Prussia and thereafter in the German Empire
is today viewed as agitation and prosecuted.
National Socialism, which set the abolition of classes
and the formation of an ethnic community as its resplendent goal,
replaced the concept of class warfare by that of incitement of the populace,
which worked primarily against those who agitated against the state,
its political stance, its organs and its officeholders.
It was therefore simply a shield for the state against criticism of its citizens,
a classic inversion of human rights.
The Nazis also reinstituted the preventive censorship abandoned in 1848,
so that they had a comprehensive set of legal instruments to control public opinion,
of which they are known to have made vigorous use.
The class-warfare section was not modified
into its present form of “agitation of the populace”
until the criminal-law revision of 1960,
replacing the agitation against classes with that against parts of the population.
This emendation was inspired by Swastika graffiti and other anti-Jewish actions
that later were revealed to have been perpetrated by east-bloc secret-service agents
in an effort to tarnish the reputation of the West German Federal Republic.
Since 1960, the new paragraph read, quote:
“Whosoever, in a manner capable of disturbing the public peace,
assaults the human dignity of others by inciting hatred against segments of the population,
by calling for violent or arbitrary measures against them,
or by insulting, maliciously maligning or defaming them,
shall be liable to imprisonment for no less than three months.”
Since then, this paragraph has been extended repeatedly
and now has seven clauses,
covers more than one page,
and places pretty much all domains of opinion under penalty
that are suspect to those in power.
This chart shows how the scope of this gagging paragraph
has grown over the years to the present time.
If the old class-warfare section was aimed at left-leaning views,
the new incitement-of-the-populace paragraph is aiming at right-leaning views.
It is a sort of hysterical overreaction of the German elites
to the excesses of National Socialism.
No matter who in Germany is or was the target of state coercion of opinion,
German judges were and are always compliant with the regime’s prosecution agenda.
As Bossi explained correctly in his book,
the legally enforced coercion of opinion engaged in by the Nazis
had no disadvantages for the German judiciary.
No Nazi judge was ever prosecuted for his verdicts against dissidents.
Even today the judges merely shrug,
because all they’re doing is applying the law.
Legislation itself bears on them exactly as little
as it is possible for them to reject prevailing law as illegal.
But wait. There is one exception.
The judges of the German Federal Constitutional Court
can indeed declare applicable law unconstitutional
and thereby null and void it.
And there is the catch.
In a comparison of the highest courts of the United States
and the Federal Republic of Germany,
a study by the Boston College International & Comparative Law Review
came to the conclusion that one weakness of the German legal system lay precisely here.
While in the U.S. every federal court can review the constitutionality of a law
passed by the government,
and in case of a conflict can declare the law unconstitutional and void,
German county, district and higher regional courts
don’t even have the authority to voice an opinion on that.
They must rather blindly apply applicable law.
Only when a case has made its way through all instances
and has finally arrived at the Federal Constitutional Court,
can the question of constitutionality be addressed.
The judges of the German Federal Constitutional Court
are appointed by the German parliament, the Bundestag.
This usually happens as follows:
The established parties agree in advance upon who has when the right
to nominate a candidate from among one’s party’s partisans.
This horse trading obviously makes a bad joke of the concept of separation of powers.
What can be expected in a case of unconstitutionality
from a court so filled with the hand-picked appointees of the ruling elites?
When in 2009 a case had to be decided
whether passages of Section 130 of the German Penal Code
violated the constitutional guarantee of freedom of expression,
the decision of this court was revealing.
I quote:
“In general, restrictions to the freedom of opinion
are permissible only on the basis of general laws
according to art. 5, para. 2, alternative 1, Basic Law.
A law restricting opinions is an inadmissible special law,
if it is not formulated in a sufficiently open way
and is directed right from the start
only against certain convictions, attitudes, or ideologies. […]
Although the regulation of art. 130, para. 4, German Penal Code is not a general law […]
even as a non-general law it is still compatible with art. 5, para. 1 and 2, Basic Law,
as an exception.
In view of the injustice and the terror caused by the National Socialist regime,
an exception to the prohibition of special laws […] is immanent.”
In other words: exceptions are forbidden, except in cases of exceptions.
In this case, the logic of this exception is as follows:
Because in the past Germany burnt books
and persecuted and imprisoned peaceful dissidents
in violation of the Weimar Constitution,
Germany is now morally obligated to burn books
and persecute and imprison peaceful dissidents
in violation of the Bonn Constitution.
The fact is that, since its initial enacting in 1849,
Section 130 of the German Penal Code has been directed
“from the outset only against certain convictions, attitudes or ideologies”
and has not lost this attribute to this day.
It is thus clearly unconstitutional from beginning to end.
No system of justice in the world needs penal laws
that forbid specific expressions of opinion.
If anyone misuses freedom of speech
to incite the violation of human and civil rights of third parties,
then in all justice systems this is already covered
by the prohibition of abetting (Section 26 German Criminal Code)
or public incitement to crimes (Section 111 German Criminal Code).
Only such laws deserve the description of a “general law.”
Every additional censorship law is nothing more than the product of tyranny,
to which every German has the right and the duty
according to Article 20 Clause 4 of the Basic Law
to resist, so long as the Federal Constitutional Court denies any relief.
In the originally planned foreword to his book "Animal Farm,"
which was rejected by four publishers among other reasons
for pressure applied by the British government,
George Orwell expressed it thus:
“If liberty means anything at all,
it means the right to tell people
what they do not want to hear.”
As previously mentioned,
the quality of a system of justice is shown
by whether the groups of the population
whose views the powerful wish to suppress
are protected from persecution by the state.
This applies mostly to those persons
who break the central taboos of a society or undermine its founding myths,
that is, those whose criticism goes against the foundations of a society.
As long as these views are peaceful,
that is, do not advocate the violation of the rights of third parties or justify this,
the justice system should not punish such publicly expressed viewpoints.
What then are the central taboos and the founding myths of today’s German society?
In 1999, then-German Foreign Minister Joschka Fischer put it this way:
“All democracies have a base, a foundation.
For France this is 1789.
For the United States of America it is the Declaration of Independence.
For Spain it is the Civil War.
Well, for Germany it is Auschwitz.
It can only be Auschwitz.
In my eyes, the remembrance of Auschwitz, the ‘never again Auschwitz,’
can be the sole foundation of the new Berlin Republic.”
I could name a long list of personalities and media voices
that express what they think of anyone who attacks that foundation.
I will spare us that list
because everyone knows what the overwhelming majority of the populace
in Germany and elsewhere thinks of those
who are said to deny Auschwitz or the Holocaust in its entirety.
Many people think that such persons have the same moral standing as pedophiles.
One can hardly sink lower than that.
What would you do if someone approached you and,
in a peaceful and maybe even scholarly and factual way,
said something about Auschwitz that you truly do not wish to hear?
That is almost a mere rhetorical question in a society
in which an almost monolithic consensus exists
as to what must be done to any such taboo-breaking historical dissident.
But it is exactly here that the crucial question arises:
How do you reconcile that with the rule of law?
Can and will the German justice system protect peaceful dissidents
of the historical narrative of the Third Reich
from legal and social assault,
or does it simply throw them to the wolves?
The hard realities of today’s Germany reveal unfortunately
that the German justice system is perfectly tailored
to enforce political prerogatives with the force of law with no compunction whatsoever.
In the following I will illustrate how such a thing proceeds in specific instances.
It is especially important to condemn the ringleaders of these dissidents
in order to set a warning example for all to see.
These are arraigned at the District Court level
for a particularly serious disturbance of the public peace.
This way all possibility of an appeal is denied them,
and since in such criminal trials no sort of verbatim transcript is made,
the door is wide open to manipulation.
All, really without exception all motions of the defense
to introduce evidence demonstrating that the defendant’s historical views
are well founded or even correct,
are denied on the grounds of common knowledge to the contrary.
Decades of precedent ruling by Germany’s highest court of appeals, the Federal Supreme Court
– not to be confused with Germany’s Federal Constitutional Court –
even compel German courts to this stance.
If the defense has its evidence already present in the courtroom,
the German Code of Criminal Procedure actually prohibits denying such evidence
on grounds of common knowledge to the contrary,
but the German courts do so regardless,
and the Federal Supreme Court,
which should correct such violations of the law,
has repeatedly allowed and confirmed this practice.
Motions to introduce evidence with which the defense wishes to show
per Section 244 Clause 4 of the German Code of Criminal Procedure
that it possesses expert opinions
which are superior to expert opinions previously submitted
are likewise denied on grounds of common knowledge,
although the probative value of new evidence unknown to the court
cannot possibly be common knowledge.
This violation of the law also receives the sanction of the Federal Supreme Court.
Motions to introduce evidence that there is notable public objection to common knowledge
are likewise and nonetheless barred on grounds of common knowledge.
Motions to introduce evidence that the reason for the lack
of any notable public objection to common knowledge is
that historians fear legal repercussions
and for that reason no longer express publicly what they really think,
are nonetheless barred on grounds of self-evidence.
Troubled by such motions by the defense in trials against historical dissidents,
the German justice system went so far as to declare in the mid-1990s
that filing a motion to introduce evidence is in itself already a crime,
if the motion’s aim is to prove
that the punishable opinions of the defendant are correct.
For with such an act,
a defense attorney would publicly commit the very same crime in the courtroom
for which his client has been indicted.
These decisions, too,
with which defense attorneys were sentenced
merely for filing motions to introduce evidence,
were approved by the Federal Supreme Court,
since such motions were evidently inadmissible,
because they violated standing law.
One of Germany's most-brutal “hanging judges” against historical dissidents,
the Mannheim Judge Ulrich Meinerzhagen,
was quoted by the German left-wing newspaper "tageszeitung" as follows:
“Finally, the court rejected all motions with the terse
—and for some anti-fascists in the audience shocking—
reason that it is completely irrelevant whether the Holocaust happened or not.
Denying it is subject to punishment in Germany.
And that is all that counts in court.
‘Democracy must be able to handle this,’
a law student lectured later in the lobby of the courthouse.”
As we all know, democracy is when three foxes and a chicken decide what’s for dinner—
or here, that the overwhelming majority of all members of a society
may prescribe under pain of punishment
which opinions you may publicly express on certain historical subjects,
and which you may not.
Obviously, the law student did not grasp
that the rule of law was established precisely
to prevent such assaults by the majority against minorities.
The denial of all motions to introduce evidence in such cases
is nowhere near the end of the judicial repressive measures.
Certain courageous lawyers did not accept their gagging,
but instead proceeded unflinchingly in the face of threats
by the legal authorities and the judges.
They nevertheless kept filing motions with which they tried to defend their clients.
The result was the 1994 introduction of the previously mentioned muzzling Section 257a
into the German Code of Criminal Procedure,
that empowered judges to require all motions except closing arguments
to be submitted in writing.
And that is exactly what regularly happens in such cases.
In order to avoid the appearance to the public
that the defendants are being sent up
for totally harmless and scientifically well-founded assertions,
their writings are never read out in the courtroom,
but rather are consigned to
– quote, unquote – “off-site private reading” as a matter of principle.
Ever since, silence is again the civic duty in German courtrooms.
Traps shut and no grumbling!
At the end of such a show trial,
in which the defense is basically completely paralyzed,
comes a verdict in which the judges can write whatever they like.
In the absence of a verbatim transcript hardly anything can be checked anyway.
Thus, the judges build their careers,
ape the lynch media,
and serve the wiles of politics.
Silence is the citizen’s first duty!
But at the end of the day, dear observer,
you probably needn’t trouble yourself.
Because you could safely remain silent while they took the Holocaust deniers;
for you weren’t a Holocaust denier, after all.
You remained silent also when they came for the Nazis;
you were certainly no Nazi.
When they came for the right-wingers, you still remained silent,
as you were no right-winger either.
When finally they come for you,
there will be no one left who could protest.
Then enjoy the farcical German justice system!
For you will evidently be an outlaw!
Here is the text of the German Basic Law article that has directly to do with this.
It says there that there shall be no censorship,
but German judges take this to mean merely a preemptive censorship.
In Clause 2, the freedom of opinion is then immediately abrogated,
because if even non-general censorship laws are valid
at the say of the Federal Constitutional Court,
then there is no freedom of expression at all.
In 1970, a professor of public law,
who at the time taught at the University of Administrative Science in Speyer, Germany,
wrote the following words in an obscure festschrift
about the right of German citizens to oppose assaults by their state
upon their civil rights
as enshrined in the German Basic Law; quote:
“Seen by daylight, every single article of the Basic Law is…
nothing more than the concrete embodiment of one of these foundational principles
of western constitutional statehood,
so that an attack on virtually any particular article
at the same time affects the principles of Art. 20 Basic Law
[therefore the right of German citizens to resist].”
17 years later the author of these lines
became the president of the German Federal Constitutional Court,
and 7 years after that he was elected federal president of Germany.
The complete evisceration of freedom of expression in Germany
was carried out during his term of office.
Summing up, this much is clear:
First, the justice system of the Federal Republic of Germany
is in some regards medieval in its structure, and on paper,
its procedural law allows for a more-repressive conduct of a trial than that of the Third Reich.
Second, there is in the Federal Republic of Germany
effectively no separation of governmental powers.
Third, every German has the right and the moral duty
to oppose such an oppressive system on German soil.
“…but nobody can protect himself against rogues
who use the robes of justice to carry out their vicious passions;
they are worse than the biggest scoundrels in the world
and deserve double punishment.”