Top German jurist explains why 'Holocaust deniers' of any age must be punished

Lüge und Wahrheit

(Lie and Truth)

A column by Thomas Fischer

Thomas Fischer, born in 1953, is a noted German jurist of the 2nd Criminal Senate of the Federal Court of Justice. Fischer is the presiding judge of the Federal Court of Justice in Karlsruhe.  His annual commentary on the Penal Code, “Beck’s Short Commentaries,” is considered the Bible of German Criminal Law. He is an honorary professor at the University of Würzburg lecturing on criminal law, criminal trial law and the sociology of law. In 2017, he was selected for that year's European Press Prize shortlist.Through his weekly column “Fischer im Recht” on ZEIT ONLINE, Thomas Fischer has become a familiar name to a broad nationwide audience.

EXCEPT THAT HE DOESN'T explain it. His long-winded commentary is long on empty rhetoric, short on compelling reason. I decided to post his opinion piece “Lie and Truth” that was published recently by Spiegel to give you a chance to see for yourself the haphazard discourse that passes for the voice of wisdom in German constitutional law. This man is a disgrace, not only because he is grossly obese (which makes it hard to even look at him), but because he is politically motivated and not above resorting to lies and baseless insults against his fellow Germans whose legitimate questions he cannot honestly answer. See for yourself. Note that I have added a few of my own comments in red. -cy

[The following was automatically translated from the German by Deep L.  11/20/2020  Holocaust-Leugnerin Ursula Haverbeck: Zu alt für Strafe? - DER SPIEGEL]

Lie and truth by Thomas Fischer

§ 130 paragraph 3 StGB reads:

Anyone who publicly or in an assembly approves, denies or trivializes an act committed under the rule of National Socialism in the manner described in § 6 para. 1 of the International Criminal Code in a manner likely to disturb the public peace, either publicly or in an assembly, shall be punished by imprisonment for up to five years or by a fine.

[CY - To understand this, I found Article 6 of the Int. Criminal Code, which reads:

Article 6: Individual Criminal Responsibility

1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible for the crime.]

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Many call that which is subsequently punished [under § 130] an "Auschwitz lie. Those who commit one of the acts, that is, approve, deny, or trivialize the Holocaust, on the other hand, call it an "Auschwitz lie" to claim that the Holocaust took place on the generally known [substitute 'believed'] scale. The reasonable argue with the mad, the truthtellers with the liars, about the right to the word "lie.” Of course, no one can win this fight on the battlefield of counter-arguments, which makes both sides all the more bitter the more important the word fetishes with which they throw at each other are to them.

There is not the slightest doubt that the earth is a sphere and not a tray, that it orbits around the sun and not the sun around Venus, that stones fall down because masses have gravity, and that in and by the leading state of the NSDAP tens of millions of people have been murdered for reasons that were called "racial" and are now called "racist," because this word is somehow better and truer, since on the one hand there are no human "races" at all, but on the other hand the racists are called that way because they claim it, mostly connected with the courageous thesis that they themselves belong to the better, more beautiful, and in any case somehow more valuable "race" by lucky providence. [Did you follow that long sentence? Try again if necessary. He's making a false analogy between 'flat-earthers' and 'racists.' There is no connection.] That, one may think, is then nevertheless stupid; one must decide. Purely humanly seen, it is understandable and touching, and not really surprising, that one's own sand castle seems to one as the most beautiful, one's own nose as the most delicate, and one's own stupidity as the most significant. Of course, the fun ends when one draws the conclusion that one is in league with nature and the spirit of the world when one smashes other people's noses. [As you will notice as you read on, he takes cheap swipes and uses insults very liberally, in place of any kind of valid point.]

What the truth is, the whole, real, immovable, and by what one can recognize it, is a quite old question. It is a part of human nature, although it deals with it only in passing. Dogs, cats and monkeys do not fight over the truth, because everything is reality to them and memory is only one form of it. Humans long for it when they walk on dream paths.  But we have to live with the brain that we have and with the environment that we are. The truth is, once we leave aside the very great sources of truth, all of them located in the beyond or in concepts, which have been invented over the millennia and which are all characterized by the fact that they renounce any reality outside of themselves, a common, socially related reconstruction of reality influenced by evaluations, symbols and prognoses. It depends on them when more than one person is present, that is, practically always with the exception of the state of "delusions". He never tells us what the truth is. This last appears to be gobbledygook to me. Try as I might, I can't make sense of it.

Because this is so, truth is of such great importance for well-being. One could say: It is completely indifferent whether the Thirty Years' War has taken place or whether the Elbe flows between Dresden and Hamburg even when we are sleeping or standing on the Rhine. Truth about the past is existentially important because it is an understanding of the present (reality).

Punishment and truth

I mention all this to give you the idea that prosecuting for denial of the obvious truth is a problematic matter. Here we go – truth is not defined, instead it is “obvious.” Criminal law has, after all, historically worked its way from the outside to the inside, so to speak: From the control of external behavior ever closer to the control of internal self-control and thinking. Since 500 years ago, God as the only instance of truth was shifted from the real world to a transcendent beyond. The rational control of reality was taken over by everyone in the world of absolutism [being] allowed to be happy in his own way, as long as he took care of it inwardly and adhered to the 19,000 paragraphs of the General Prussian Land Law outwardly. Nowadays we see it differently: we want the citizen to guide himself morally, so criminal law also has its sights set on his thoughts and feelings, the "Gesinnung" [attitude] is worth a lot to us, and anyone who shoots at a person with a wooden toy gun because he mistakenly believes it to be real will be put in prison for life for attempted murder. Is this not nuts? How do you prove what he believes? How can you punish an attitude?

In addition, however, what constitutes freedom and makes human development possible has to assert itself. Optimized mind control leads, as has been proven many times, to blatantly dysfunctional societies, no matter under which "ideological," irrational beliefs. So it depends - once again - on a balance between conflicting conditions, circumstances, tendencies and possibilities: as much as possible alignment by controlling a common "truth" on the one hand - and on the other hand as much freedom as possible for truth-expanding realities. Such a balance requires the form and these binding concepts of oneself. Somewhat easier: one must find forms of balance.

If one looks around in the world of criminal law, one finds many legal systems in which truth is acted [?] as a high object of protection, especially gladly the truth about the greatness of one's own state history, about the tremendous victories of the respective leaders and the wickedness of all its opponents, about the quasi-historical necessity of rule as it is and will be forever. One can believe that or not. Some feel secure in such forms, especially when they are not among the lowest but have even more contemptible ones among them.

In states that are called liberal constitutional states, it is more complicated, but much more pleasant: one may think what one wants, but in addition to the rules of external conduct, one must understand halfway the construction itself and pay attention to the functioning of social truth-finding. In Germany, the pure doctrine of truthfulness is not enforced by the Bundeswehr [army], but by rule-based public communication. This is the reason why the Federal Constitutional Court describes the basic right of freedom of opinion as "absolutely constitutive".

Therefore it is actually rather remote that one protects "the truth" criminally and pursues the spreading of lies as attack on the truth. If this were to be taken literally, it would be the very opposite of what is "absolutely constitutive." However: The spreading of panic by public threat of attacks is punishable even if the threat is not meant seriously (see § 126 StGB); the spreading of contents with glorification of inhuman cruelty is also punishable if the victims depicted are only "human-like" (see § 131 StGB), and everyone has a right, protected by criminal law, to have slander (incorrect factual claims) that do not violate their reputation and destroy their existence, spread (see §§ 186, 187 StGB). The truth about the past is thus protected to the extent that it is the basis of present life. Exactly. In order to prevent political National Socialism from reappearing, they must lie about it and criminalize it (the past) to “protect” the future. If two sections of the population claim that it is the "truth" that different gods have ordered them to destroy each other, one must not protect the truth but prevent civil war. One way to do this would be to prohibit the public dissemination of the aforementioned feeble-minded "truths". Now truths that don't protect their version of public peace become "feeble-minded truths."

§ 130 - "Incitement of the people" - protects in the end, of course, body, life, existence of humans. This protection is, however, shifted forward here, because conditions are to be prevented in which it can no longer be guaranteed by the general rules (for example, prohibition of manslaughter and bodily injury). Hate against groups of the population, calls for violence, threats to security are, as history has shown a thousand times, dangerous acts. “Incitement of the people" is a so-called abstract crime of danger, which punishes attacks on the so-called public peace, i.e. a state in which the form of compensation is based on rules and not on violence and arbitrariness.

This brings us to the denial of the Holocaust, which is a variant of the crime of sedition. Of course, one can say: Whether any fools "believe" that the Holocaust of National Socialism did not take place is completely indifferent. For the world and for the truth this is no more significant than the view of some others that the world is ruled by aliens or was founded by Martians. These latter opinions would not be insignificant, however, if their followers were to call for the earth to be prepared for the return of the masters from space and, until then, for the slaughter of the elites or the burning of all forests. In other words: The truth about the Holocaust is not the core, but the medium of public peace, which § 130 paragraph 3 StGB wants to protect. This is all utter nonsense.

So much for the background of the penal provision. It does not change anything about the fact that § 130 Abs. 3 StGB is also a completely normal criminal provision: One must, in order to be punished, [word missing?] the objective (action) and the subjective (resolution) facts of the case. And what the intent of "denial" is, is not self-evident and also not indisputable. Very important.

Some people say: intent to deny already exists when the perpetrator knows that he denies something. Others - the "prevailing opinion" - say that premeditation presupposes that the perpetrator knows that his view of past reality contradicts the view of everyone else. Still others - for example, the columnist [Fischer himself] in his StGB commentary - say: Denial in the sense of § 130 (3) presupposes that the perpetrator knows or accepts that his assertion contradicts reality, i.e., is untrue. (Only) this latter view leads to the problem that people who do not know this are in a state of so-called "error of fact", i.e. they cannot be punished (see § 16 para. 1 StGB). This is not a practically relevant problem because 99 percent of the "deniers" of course know full well that the Holocaust really took place, but feign their "disbelief" because they actually approve (or even would like to repeat) the genocide. Shockingly untrue!! Indefensible attitude from a judge, an unsupported assumption and CHEAP SHOT that has never been fairly demonstrated in any courtroom! That such persons can be punished according to § 130 is self-evident. Then one could, under certain circumstances, leave the few idiots who really believe that the earth is a piece of paper in their sad delusion alone. It is obvious that this is not quite so simple: How do you want to distinguish the real from the delusional liars?

Punishment and symbol

This brings us to Mrs. Haverbeck and comrades, including Mr. Horst Mahler or the (probably: former) fiancée and defense attorney of the same [Sylvia Stolz], who used their pleas to announce the death penalty to the judges. What death penalty? There are simply such people, and in their shadow quite a number of them, who hide around with half-baked swollen sympathies and ostensibly agnostic excuses: they only deny secretly and among their own kind. Unwarranted insult toward Haverbeck, Mahler and Stolz; more 'hate' from the respected judge.

The decisive point here, too, is probably that the perpetrators are not concerned with "the truth" as scientific reality: they do not spend their lives researching whether Caesar really spoke with Brutus when he murdered him, or whether Cleopatra used to bathe in milk or champagne before meeting Antonius. Her [referring to Frau Haverbeck] center of truth is hyperexcited at only one point: Holocaust or non-Holocaust? Were there six million or perhaps only 5.8 million murdered? This alone shows that it is not about numbers, but about principle: the allegedly wrong view of the general public is for these persuaders of conviction proof and symbol of the alleged "wrong" opinion about National Socialism, which they consider to be a great thing by and large. The fight for the alleged truth is thus a fight not for past reality, but for the social and political future. Agitation against the alleged lie about Auschwitz is in reality agitation against Jews, Sinti and Roma, foreigners.

There is no reason not to punish perpetrators of conviction. To have any "conviction" is allowed, pleasant or not, and first of all a private matter. But he who "by conviction" murders, humiliates, hurts other people, must be made clear the boundary between mine and his actions. But they can't prove the necessary extent of the murder, humiliation and hurt. It's an arbitary claim and number. At the same time the sanctioning must show the others - that is, all - that this limit exists and that it must be observed. This too is "symbolic". One could take the view that perpetrators like Ms. Haverbeck should not be offered further stages of self-representation in court through criminal prosecution. I think that would be too cheap an argument, on the edge of convenience. After all, criminal trials and main hearings do not have the task of protecting the public from becoming aware of crimes. Even those who, as accused, announce that they will make physical attacks during the trial will not be released, but rather tied up. Admittedly, one must not do the same with notorious agitators. In exceptional cases, however, they can be excluded, otherwise one must and can bear the gossip. As long as there is still a spark of legal defense underneath, one must listen and give the accused a chance. Nothing more. This applies equally to Haverbecks, holy warriors and other human happiness seekers.

Punishment and age

Should (very) old people be prosecuted and punished, even imprisoned? This is a question that is repeatedly asked in public, but surprisingly hardly ever in the case of jealousy killers, child rapists or terrorists. But especially with old Nazi criminals who lived "blamelessly" in hiding for 70 years and who were dragged out of the hiding places of their memories at the end of their lives. One might ask whether old people in wheelchairs are still the right addressees of the messages of criminal law. Counter question: Why not?

That applies in any case to such offenders who are still criminally active even at an advanced age. Anyone who, at the age of 92 and full of zest for action, strides from one sedition to the next will probably still be sprightly enough to bear responsibility for it. An 85-year-old man, who notoriously abuses children sexually, will not be able to argue, with any prospect of success, that at his age a criminal trial is no longer worthwhile; it would be better to let it go. Always equating holocaust revisionists with sexual abusers of children!  They are not similar in any way.

It may be different when it concerns deeds that are a whole human life behind. Murder and genocide do not come under the statute of limitations: that is how it is, and that is what the majority of the population obviously wants. Hardly anyone complains that it is possible to solve 50-year-old sexual murders with the help of DNA analysis: "cold cases" are considered a very special treat for the daily horror. When the love of justice and the statute of limitations is so great, one should not exclude the ramp of Auschwitz, of all places.

There are limits to the ability to negotiate and to execute. But they are very wide: not because German criminal law is so merciless and inhuman, but because the well-being of prisoners is quite well taken care of, at least in physical terms. There are many old people living in prison today, many are chronically ill, quite a few die there from cancer, cardiovascular diseases, Aids. There are departments for old prisoners, prison hospitals and, if necessary, the possibility of external medical care. One should think about the penal system as a whole, without doubt. But the majority of citizens obviously do not want that at all. To open a media-public department for "mercy" instead would seem to me to make little sense and be extremely unfair. One could think of a few prisoners who perhaps deserved mercy more than highly active hate mongers. This is how he pretends he sees Ursula, as a hate monger rather than as a constitutionally protected German citizen. This allows him to stay in his judicial comfort zone. As a rule, one cannot choose whether one dies of lung cancer. Whether one simply keeps one's mouth shut, yes.

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So there is this judge's legal answer to all who complain about or protest the Dictate of eternal German guilt for the Holocaust: Simply 'shut up or we'll shut you up.' Because it is state policy of the Federal Republic of Germany ... and that is really all it comes down to.