44 No. 77 JUSTICE IV. Jurisprudence on Conspiracy Narratives as Incitement to Hatred § 130 (1) StGB The term conspiracy narrative is not explicitly mentioned in § 130 of the German Criminal Code (Strafgesetzbuch, StGB). Insofar as such narratives reinforce resentment against minorities – such as Jews – and may at least implicitly incite violence against them, criminal liability may arise under paragraph 1 of the provision. In many instances, these narratives do not occur in isolation but appear in conjunction with other statements potentially punishable under § 130 (3) StGB, such as the denial or trivialization of the Holocaust. Conspiracy narratives of this kind often take the form of variations on recurring topoi. Perhaps the most common topos is that of a “Jewish-capitalist world conspiracy.” According to this narrative, “world Jewry,” embodied by powerful bankers, has conspired against the rest of the population to drive it “to the brink of slavery” by controlling the banking system and subjecting people to “interest bondage.” In an early decision under § 130 StGB, the Federal Court of Justice (Bundesgerichtshof, BGH) addressed the confiscation of the German translation (1956) of the antisemitic pamphlet The Federal Reserve Conspiracy by Eustace Mullins pursuant to §§ 98, 86 StGB.43 In its reasoning, the Court elaborated on the close connection between antisemitic conspiracy narratives, violence, and discrimination. The book, it held, reproduced National Socialist antisemitic conspiracy motifs (“control of the money market,” the enslavement of the population as “interest slaves,” the deliberate orchestration of the Great Depression of 1929 and of the First and Second World Wars), which during the National Socialist regime had been directly linked to demands to place Jews under special law. The Court found that the book’s repetition of these narratives was directed toward “calls for corresponding countermeasures” in the sense of National Socialist crimes.44 Beyond membership in a group as mentioned in § 130 (1) no. 1, the key statutory elements under that paragraph are the “incitement of hatred” or the “call for violent or arbitrary measures,” together with their suitability to disturb public peace. According to established case law, incitement to hatred is present when an expression “is objectively capable of and subjectively intended to arouse or intensify a heightened hostile attitude toward the affected segment of the population, exceeding mere rejection or contempt.”45 Some courts additionally require that the expression “constitute a form of agitation which at the same time provides the ideological breeding ground for a willingness to engage in excesses against the targeted group.”46 In the proceedings concerning the antisemitic book mentioned above, the BGH held that the offense of incitement to hatred was fulfilled because the publication, through its “absurd accusations … seeks to characterize Jews … as inferior human beings whose undiminished right to life as citizens in the community is denied.”47 In some instances, statements denying or relativizing the Holocaust – which primarily fulfill the elements of paragraph 3 – have also been punished under paragraph 1. This applies in particular when the denial or trivialization of the Holocaust is framed as a “Jewish conspiracy,” portraying Jews as “authors of a legend of extermination (‘the six-million lie’) who use it to politically oppress and financially exploit the German people.”48 Likewise, the Mannheim Regional Court found that a statement by the accused describing Jews as “parasites who, with an invented story about alleged mass murders by gas chambers, humiliate and blackmail Germany” also constituted incitement to hatred. 43. BGH, decision of Apr. 21, 1961 – 3 StR 55/60 –, BGHSt 16, 49-57. 44. BGH, decision of Apr. 21, 1961 – 3 StR 55/60 –, BGHSt 16, 49-57, para. 15. 45. BGH, decision of Mar. 15, 1994 – 1 StR 179/93 –, BGHSt 40, 97-106, para. 23. 46. E.g., LG Freiburg (Breisgau), decision of Jun. 6, 2011 – 7 Ns 85 Js 4476/08-AK 129/10 –, juris, para. 142; AG Essen, decision of Jan. 30, 2015 – 57 Cs 631/14 –, juris, para. 19. 47. BGH, decision of Apr. 21, 1961 – 3 StR 55/60 –, BGHSt 16, 49-5, para. 24. 48. E.g., BGH 26.1.1983 – 3 StR 414/82, BGHSt 31, 226 (231 f.); LG Mannheim, 1992 (6/5 KLs 2/92).
RkJQdWJsaXNoZXIy MjgzNzA=