1. Source of the legal provision
Section 3h National Socialism Prohibition Act hereafter ‘Prohibition Act’ [Bundesverfassungsgesetz über das Verbot der NSDAP, Verbotsgesetz] as amended by Federal Law Gazette I [Bundesgesetzblatt I] No. 177/2023.
Available in the original language via: Rechtsinformationssystem des Bundes; <https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10000207>.
2. Legal Provision in English
Denial of National Socialist genocide and National Socialist crimes against humanity
- Anyone who publicly denies, minimises, approves or seeks to justify the National Socialist genocide or other National Socialist crimes against humanity will be punished with a prison sentence of between six months to five years if the offence is not punishable under Section 3g.[1]
- Whoever commits the offence in a printed work, on the radio or via another medium or otherwise in such a way that it becomes accessible to many people will be punished with a prison sentence of between one to ten years.
- If the offender or the offence is particularly dangerous, the offender will be punished with a prison sentence of between ten to twenty years.
3. Legal Provision in the original language
Leugnung des nationalsozialistischen Völkermords und der nationalsozialistischen Verbrechen gegen die Menschlichkeit
- Wer öffentlich den nationalsozialistischen Völkermord oder andere nationalsozialistische Verbrechen gegen die Menschlichkeit leugnet, verharmlost, gutheißt oder zu rechtfertigen sucht, ist, wenn die Tat nicht nach § 3g mit Strafe bedroht ist, mit Freiheitsstrafe von sechs Monaten bis zu fünf Jahren zu bestrafen.
- Wer die Tat in einem Druckwerk, im Rundfunk oder in einem anderen Medium oder sonst auf eine Weise begeht, dass sie vielen Menschen zugänglich wird, ist mit Freiheitsstrafe von einem bis zu zehn Jahren zu bestrafen.
- Bei besonderer Gefährlichkeit des Täters oder der Tat ist der Täter mit Freiheitsstrafe von zehn bis zu zwanzig Jahren zu bestrafen.
4. Key Points
- Austria adopted a specific denial ban in 1992, which is limited to National Socialist crimes; it applies not only to the Holocaust, but also to the genocide of the Roma and Sinti peoples by Nazi Germany.
- The possible sanction of the non-qualified crime is a prison sentence of between six months to five years.
- Beyond this, since 2016 and in accordance with the EU Framework Decision 2008/913/JHA, Austria criminalises more broadly the approval, denial and gross minimisation of genocides and war crimes (Section 283 Criminal Code). Unlike the specific provision on Holocaust denial, this provision is only applicable if said crimes are recognised as such by an international or domestic court, and if the statement incites hatred or violence.[2]
- A legislative effort to combat antisemitism led to a recent overhaul of the provision, effective from 2024, and which reduced the minimum and maximum sentencing guidelines.
- Media attention has focused on whether the reform has intentionally left out statements made within the context of “pub talk”.
5. Background
Austria explicitly criminalises the denial, minimisation, approval, and the effort of justification of the “National Socialist genocide or other National Socialist crimes against humanity” according to Section 3h of the Prohibition Act, which was adopted in 1992.[3] The Prohibition Act itself was originally passed in 1945 to outlaw the National Socialist (Nazi) Party, and is recognised as constitutional law. Consequently, amendments to the law require a majority of two thirds of the votes.[4] Also, the objection of unconstitutionality is inapplicable,[5] insofar as it does not violate fundamental principles of the Constitution.[6]
For the drafters, the proposal for Section 3h of the Prohibition Act was not a reaction to a gap in criminalisation, but rather to the inefficient application of an already existing statute concerned with the Nazi past. In fact, Holocaust denial had been prosecuted since the 1980s.[7] Prosecutors and courts had applied a broad understanding of Section 3g of the Prohibition Act, which, as a catch-all provision, holds criminally liable “whoever performs activities inspired by National Socialist ideas”. Section 3g had been added in 1947 to stifle any National Socialist activity whatsoever.[8] The established jurisprudence of the Supreme Court of Justice had approved of the application of Section 3g to Holocaust denial.[9] Therefore, as further implications to freedom of speech beyond the existing interpretation of the legal framework were seemingly not at issue, the lawmakers of 1992 across the political spectrum agreed on the basis of the symbolic value that an explicit criminalisation would entail. They held that “public statements which deny, grossly trivialise, condone or seek to justify Nazi crimes of violence impair coexistence in society – in which survivors of Nazi crimes and relatives of their victims still live today […]”.[10] The parliamentary debate also served as a forum to voice a more general self-critical reflection of Austria’s perceived inadequacy in coming to terms with its past, and the continuities of antisemitism and racism within Austrian society.[11]
However, the scope of the reform in 1992 – and further statements made by lawmakers – revealed that the legislative intentions went beyond mere symbolism. The sentencing guidelines of the 1992 version of the newly adopted Section 3h of the Prohibition Act referred to Section 3g of the Prohibition Act. At the same time, the minimum sentence of this provision was reduced from five years to one year of imprisonment, but the maximum sentence remained at ten years, or at twenty years if the perpetrator was judged as particularly dangerous.[12] It was emphasised that the reduction of the minimum sentence should not be misunderstood as acknowledging a reduced gravity of revisionist statements. Instead, the change of the sentencing guidelines was supposed to make the application more effective since the lower minimum sentence eliminated the competence of jury courts.[13] Faced with a minimum of a five-year prison sentence that appeared disproportionate for a speech offence, jurors had been reluctant to reach a conviction.[14] In particular, the proceedings against the notorious Holocaust denier Gerd Honsik, who had been acquitted on three different occasions in 1979, 1983 and 1989, were a pivotal factor for many proponents of the reform in 1992.[15]
The provision remained unchanged for more than thirty years. In 2023, the Prohibition Act was comprehensively reformed. Coinciding with the Hamas terrorist attack on Israel on 7 October 2023, the ensuing war in Gaza, and rising threats to Jewish life in Europe, the parliamentary debate focused on the Prohibition Act as a tool to specifically fight antisemitism.[16] The reform, which entered into force on 1 January 2024, brought about important changes: firstly, it removed the former requirement that the statement had to be expressed in a way that made it accessible to many people. Instead, Section 3h Subsection 1 now covers any “public” statement. Secondly, the requirement of a gross minimisation was removed to avoid “very difficult questions of the limits” of criminal liability and to ensure that partial denial is included as well.[17] Interestingly, these considerations have not been translated to Section 283 Subsection 1 No. 3 of the Criminal Code, which still criminalises, among others, the “gross” minimisation of genocides, war crimes and crimes against humanity that have been recognised by a domestic or international court. This difference makes the protection of the memory of the Holocaust stand out.
The 1992 version of Section 3h of the Prohibition Act now serves as an aggravated offence (today’s second subsection of Section 3h). As the spread of Nazi propaganda has significantly moved to online outlets, legislators worried about overburdening the Austrian authorities with publications that were retrievable in Austria and therefore locally prosecutable (see Section 67 Subsection 2 of the Criminal Code in conjunction with Section 62 of the Criminal Code defining the territorial scope of Austrian criminal law), but which were only vaguely related to the country.[18] Therefore, the reform limited the applicability of the Holocaust denial ban in cases committed abroad to situations involving an Austrian perpetrator and with likelihood to breach (Austrian) public peace.[19]
6. Application
The denial of the Holocaust remains a central characteristic of right-wing extremists in Austria. Members of the “new right”, in turn, more often tend to relativise the Holocaust.[20] Still, under the regime of Section 3g of the Prohibition Act, which was used before a specific Holocaust denial ban was adopted in 1992, a criminal court in Vienna provoked strong criticism when it appointed an expert witness who took five years to prove the long-established fact that Jews had been murdered by the use of Zyklon B.[21] The Supreme Court of Justice clarified in 1994 that the mass murder of Jews in gas chambers was a historical truth that required no further proof.[22] Moreover, it ruled that the newly enacted Section 3h of the Prohibition Act procedurally prohibits the taking of evidence on the facts of National Socialist genocide and other National Socialist crimes against humanity.[23]
In 2017, the Supreme Court of Justice upheld a fine for a disciplinary offence against a criminal defence lawyer.[24] In defending a client who had called for the incineration or gassing of foreigners, and who wanted to “revive facilities” in the Mauthausen concentration camp, the lawyer portrayed these statements as mere phantasms of the defendant and argued: “Whether gassings and incinerations took place in Mauthausen” were a “kind of myth”, and therefore “the defendant wanted to recreate [something] that did not actually happen.”[25] Although the court did not find a violation of Section 3h of the Prohibition Act, it accepted a breach of disciplinary duty. This was because a lawyer, “who in view of his legal expertise and the obligation to observe the law, enjoys a special position of trust of the public, may not even create the impression in the exercise of his profession that he wants to doubt or relativise such notorious facts – in contradiction to the assessment of the Prohibition Act”.[26] The decision illustrates how the Holocaust denial ban influences fields of law beyond criminal trials.
The reform of 2023 also lowered the minimum and maximum sentencing range of Section 3h Subsection 1 of the Prohibition Act to between six months and five years of imprisonment. This change allows formal criminal proceedings to be relinquished where the facts of the case have been sufficiently clarified, and the defendant chooses to submit to a punitive measure, e.g. community service (so-called diversion).[27] To avoid the impression of any trivialisation of Holocaust denial, lawmakers stressed the need for a clear framework for the diversion programmes. These programmes would “need to offer more than just a mere visit to the memorial of the Mauthausen concentration camp”,[28] and may not apply in case of an entrenched National Socialist ideology.[29]
7. Controversies
There have been debates about the broadened scope of Section 3h Subsection 1 of the Prohibition Act replacing the former requirement that the statement be accessible to many people, by the mere requirement of a “public” statement. According to the minister of justice, the new wording signifies that the threshold has been reduced from an audience of 30 to ten persons.[30] However, criticism has been raised that the new law still does not cover most expressions in the setting of “pub talk” – a metonymy for occasions where the boundaries between private and public speech are fluid – unlike an earlier draft which had provided for a reduction to a minimum of only three people.[31]
8. Further Reading
- Bailer, ‘The ‘Ban on Re-Engagement in National Socialist Activity’, as a Social and Political Counter-strategy in Austria’, in R. Melzer, S. Serafin (eds) Right-wing extremism in Europe [2013], pp. 281-305.
- Wagrandl, ‘Militant Democracy in Austria’ [2018], Volume 2, University of Vienna Law Review, pp. 95-128.
- J. Roth, ‘Austria: Denial of the Holocaust: A criminal offence?’ [1989] Volume 23, Patterns of Prejudice, pp. 42-43.
[1] Section 3g contains the catch-all offence of “revival of National Socialism”.
[2] Strafrechtsänderungsgesetz 2015 [Criminal Code Amendment Act 2015], Bundesgesetzblatt [Federal Law Gazette] No. 112/2015 <https://www.ris.bka.gv.at/Dokumente/BgblAuth/BGBLA_2015_I_112/BGBLA_2015_I_112.pdfsig>.
[3] Verbotsgesetz-Novelle [Amendment to the Prohibition Act], Bundesgesetzblatt [Federal Law Gazette] No. 148/1992.
[4] See Article 44 Bundes-Verfassungsgesetz [Federal Constitutional Law].
[5] R. Lässig, ‘Verbotsgesetz 1947’ in F. Höpfel, E. Ratz (eds), Wiener Kommentar zum Strafgesetzbuch, para. 3,
[6] In a non-relating case, the Constitutional Court ruled that there are overriding fundamental principles of the constitution [eg. democracy, rule of law] and that the Constitutional Court is called upon to guarantee that these fundamental principles are upheld, thereby establishing the notion of unconstitutional constitutional law, see Verfassungsgerichtshof [Constitutional Court], G 12/00-17.
[7] B. Bailer, ‘Das Verbotsgesetz’ [2005] Issue 2, juridikum, p. 200.
[8] Regarding the purpose of Section 3g Prohibition Act, see H. Gallhuber, ‘Rechtsextremismus und Strafrecht’, in Stiftung Dokumentationsarchiv des österreichischen Widerstandes (ed), Handbuch des österreichischen Rechtsextremismus [1994], p. 635.
[9] See Oberster Gerichtshof [Supreme Court of Justice], Decision, 17 July 1992, 16 Os 7/92.
[10] S. Herrmann, Protocol of 550th session of Bundesrat [Federal Council], 5 March 1992, p. 25897.
[11] G. Hummer, ibid., p. 2589; “[…] we made it all too easy for ourselves back then to say that we had nothing to do with National Socialism. […] One reads nothing about the fact that antisemitism has a much older history than National Socialism and that there was a kind of concealed racism in Austria even earlier […].”
[12] Verbotsgesetz-Novelle [Amendment to the Prohibition Act], Bundesgesetzblatt [Federal Law Gazette] No. 148/1992; the proposal for a reduction of the minimum sentence originated from Simon Wiesenthal, who became known for his work of tracking down Nazi fugitives, see Preiß, Protocol of Nationalrat [National Council] XVIII. GP, 26 February 1992, p. 6130.
[13] “Juries are used for the trial of particularly serious offences, which carry a possible sentence of at least five years to “life imprisonment”, or for certain minor political offences (e.g. disparagement of the flag of the Republic).”, see the website of the information and services of the Austrian administration <https://www.oesterreich.gv.at/themen/gesetze_und_recht/strafrecht/6/Seite.2460907.html#:~:text=Geschworenengerichte%20werden%20bei%20der%20Verhandlung,der%20Fahne%20der%20Republik)%20eingesetzt>.
[14] W. Strutzenberger, Protocol of 550th session of Bundesrat [Federal Council], 5 March 1992, p. 25902; characteristically for the general misgivings about the shortcomings of jury trials, see Preiß: “There is ample evidence that juries tend to acquit in political trials.”, Protocol of Nationalrat [National Council] XVIII. GP, 26 February 1992, p. 6129.
[15] B. Bailer, ‘Gegen nationalsozialistische Wiederbetätigung und Holocaustleugnung’, in Lichtenwagner, Reiter-Zatloukal (eds), “… um alle nazistische Tätigkeit und Propaganda in Österreich zu verhindern” [2018], p. 18.
[16] K. Edstadler reporting a 300 percent increase of antisemitic incidents in the first two weeks following the Hamas attacks of 7 October 2023, see preliminary Protocol of Nationalrat [National Council] XXVII. GP, 15 December 2023; see on the interpretation of Section 3h Prohibition Act the 1990s mainly as an instrument “to place the criminal liability of an act serving the revival of National Socialism at the earliest possible stage”, H. Gallhuber, ‘Rechtsextremismus und Strafrecht’, in Stiftung Dokumentationsarchiv des österreichischen Widerstandes (ed), Handbuch des österreichischen Rechtsextremismus [1994], p. 639.
[17] A. Zadić, Preliminary Protocol of Nationalrat [National Council] XXVII. GP, 15 December 2023.
[18] Erläuterungen der Regierungsvorlage [explanatory notes to the government bill], 2285 der Beilagen XXVII. GP, p. 9 <https://www.parlament.gv.at/dokument/XXVII/I/2285/fname_1592448.pdf>.
[19] See Section 3m Prohibition Act.
[20] Verfassungsschutzbericht 2023 [Annual Report by the Directorate General for Public Security], Bundesministerium für Inneres (ed), pp. 19, 30 <https://www.dsn.gv.at/501/files/VSB/180_2024_VSB_2023_V20240517_BF.pdf>.
[21] ‘Wien: Gerichtsgutachter bestätigt den Holocaust’, TAZ (6 May 1992) <https://taz.de/Wien-Gerichtsgutachter-bestaetigt-den-Holocaust/!1671383/>.
[22] Oberster Gerichtshof [Supreme Court of Justice], Judgement, 16 February 1994, 13 Os 135/92.
[23] Ibid.
[24] Oberster Gerichtshof [Supreme Court of Justice], Judgement, 14 November 2017, 20 Ds 11/17y.
[25] Ibid., p. 3.
[26] Ibid., p. 9.
[27] See Section 198 Subsection 2 No. 1 Code of Criminal Procedure; see for a general description of the diversion programme, <https://www.oesterreich.gv.at/themen/gesetze_und_recht/strafrecht/4/Seite.2460601.html>.
[28] S. Schatz, Preliminary Protocol of Nationalrat [National Council] XXVII. GP, 15 December 2023.
[29] A. Zadić, ibid.; the possibility of diversion was met with mixed receptions by civil society actors with some questioning the efficiency of educational measures above the group of young adults, ‘Verbotsgesetz: Geteilte Meinungen zu Diversion bei Erwachsenen’, Der Standard (19 July 2023) <https://www.derstandard.de/consent/tcf/story/3000000179573/verbotsgesetz-strafrechtsexperte-sieht-diversion-bei-erwachsenen-positiv>.
[30] A. Zadić, Preliminary Protocol of Nationalrat [National Council] XXVII. GP, 15 December 2023.
[31] S. Schatz, ibid; C. M. Schmidt, ‘Ein Freibrief für Holocaust-Leugnung am Stammtisch’, Der Standard (30 November 2023) <https://www.derstandard.at/consent/tcf/story/3000000197742/freibrief-f252r-stammtische>; see also on the function of post-fascist antisemitism in Austria as a “stabiliser of informal, ‘private’ small groups […], insofar as they have to compensate for a lack of bonding and solidarity through aggressive external boundaries”, B. Marin, ‘Ein historisch neuartiger ‘Antisemitismus ohne Antisemiten’ [1979] Volume 5, Geschichte und Gesellschaft, p. 559.