1. Source of the legal provision

Section 130 (3), (4), (5) German Criminal Code [Strafgesetzbuch] as amended by Federal Law Gazette [Bundesgesetzblatt] I p. 2146. Accessible in the original language via: Bundesamt für Justiz; <https://www.gesetze-im-internet.de/stgb/__130.html>

2. Legal provision in English

Incitement to hatred […] (3) Whoever publicly or in a meeting approves of, denies or minimises an act committed under the rule of National Socialism of the kind indicated in Section 6 (1) of the Code of Crimes against International Law^[1] in a manner suited to causing a disturbance of the public peace incurs a penalty of imprisonment for a term not exceeding five years or a fine. (4) Whoever publicly or in a meeting disturbs the public peace in a manner which violates the dignity of the victims by approving of, glorifying or justifying National Socialist tyranny and arbitrary rule incurs a penalty of imprisonment for a term not exceeding three years or a fine. (5) Whoever approves of, denies or grossly minimises an act of the kind indicated in Sections 6 to 12 of the German Code of Crimes against International Law^[2] against one of the groups of persons of persons referred to in subsection 1 number 1^[3] or against an individual because of his belonging to one of these groups of persons in public or in an assembly in a manner that suited to incite hatred or violence against such a person or group of persons and to disturb the public peace incurs a penalty of imprisonment not exceeding three years or a fine.

3. Legal Provision in the original language

Volksverhetzung […] (3) Mit Freiheitsstrafe bis zu fünf Jahren oder mit Geldstrafe wird bestraft, wer eine unter der Herrschaft des Nationalsozialismus begangene Handlung der in § 6 Abs. 1 des Völkerstrafgesetzbuches bezeichneten Art in einer Weise, die geeignet ist, den öffentlichen Frieden zu stören, öffentlich oder in einer Versammlung billigt, leugnet oder verharmlost. (4) Mit Freiheitsstrafe bis zu drei Jahren oder mit Geldstrafe wird bestraft, wer öffentlich oder in einer Versammlung den öffentlichen Frieden in einer die Würde der Opfer verletzenden Weise dadurch stört, dass er die nationalsozialistische Gewalt- und Willkürherrschaft billigt, verherrlicht oder rechtfertigt. (5) Mit Freiheitsstrafe bis zu drei Jahren oder mit Geldstrafe wird bestraft, wer eine Handlung der in den §§ 6 bis 12 des Völkerstrafgesetzbuches bezeichneten Art gegen eine der in Absatz 1 Nummer 1 bezeichneten Personenmehrheiten oder gegen einen Einzelnen wegen dessen Zugehörigkeit zu einer dieser Personenmehrheiten öffentlich oder in einer Versammlung in einer Weise billigt, leugnet oder gröblich verharmlost, die geeignet ist, zu Hass oder Gewalt gegen eine solche Person oder Personenmehrheit aufzustacheln und den öffentlichen Frieden zu stören.

4. Key Points

• In 1994, Germany introduced a specific denial ban, limited to genocide committed under the National Socialist regime and applicable when such denial is likely to disturb public peace. However, the denial of the Holocaust had already led to criminal prosecutions on the basis of general hate speech legislation adopted in the 1960s.
• In 2023, an EU infringement procedure for failing to implement the EU Framework Decision 2008/913/JHA (hereafter ‘EU FD 2008’) was closed following the adoption of a general ban on denying any genocide, crime against humanity, or war crime, regardless of whether it has been recognized by a court.
• While explicit denial has been marginal, German courts are increasingly tasked with defining the line between criminal relativisations and acceptable public discourse.
• Recent controversy involves the comparison of the Nazis’ persecution of Jews with the containment measures during the Covid-19 pandemic.

5. Background

Vandalism against a Jewish synagogue in Cologne in 1959 and an ensuing wave of antisemitic incidents that spread to other cities alarmed the political leaders of the early West German Republic who were striving to re-establish normality after the country had unleashed an unprecedented scale of death and destruction on the European continent and beyond.^[4] Swiftly, a law against incitement to hatred was passed in 1960 which generally targeted inflammatory statements against “parts of the population” to avoid the impression of special protection for Jews.^[5] Prosecutors, who noticed the rising phenomenon of Holocaust denial, were soon inspired to bring charges on the basis of the new law. However, courts only accepted the charge of incitement to hatred if the defendant was found to identify with National Socialist ideology, or if the Holocaust was portrayed as a Jewish conspiracy “intended to extort and exploit the German people”.^[6] Simple expressions of Holocaust denial that did not feature these qualifications, however, could be prosecuted under defamation law since the Federal Court of Justice ruled in 1979 that the collective memory of Jews living in Germany regarding their and their ancestors’ experiences of persecution and destruction was an integral part of their personal dignity.^[7] The first legislative attempt to enact an explicit Holocaust denial ban failed in the 1980s, with opponents asserting that historical fact-finding exceeded judicial competences.^[8] The complexity of two statutes covering different forms of Holocaust denial, the on-going shift from pure denial (which had been effectively culturally marginalised), to more vague forms of minimisations and, finally, public pressure after the acquittal of a notorious neo-Nazi, prepared the ground for the parliament of recently reunified Germany to ultimately adopt an explicit Holocaust denial ban under Section 130 (3) of the Criminal Code in 1994.^[9] In 2005, Section 130 of the Criminal Code was supplemented by a fourth paragraph that criminalises the approval, glorification or justification of the Nazi regime.^[10] In 2022, to fully implement EU FD 2008, a fifth paragraph was added, incriminating a general denial ban for any genocide, crime against humanity or war crime, where the statement is likely to incite hatred or violence.^[11] Unlike in other neighbouring European countries which also expanded their denial bans in reaction to EU FD 2008, the German provision does not require the crime in question to be recognised by a domestic or international court.

6. Application

Courts are not required to hear historians as expert witnesses on the veracity of the Holocaust since the Federal Court of Justice ruled in 1976 that essential historical facts concerning the persecution of Jews by National Socialists were generally known.^[12]Still, for the law to be applied effectively, the prosecution needs to be aware of “dog whistles” and metaphors implicitly alluding to the Jewish genocide. Section 130 (3) of the Criminal Code includes three modalities, namely the approval, denial or downplaying of the Holocaust. In particular, statements of approval or downplaying are not always evident, and recognising them as such requires knowledge of specific historical references. For instance, a conviction for Holocaust approval for chanting the so-called ‘underground song’ (“We build an underground railway from Jerusalem to Auschwitz”) was, among others, grounded in the general knowledge that the Holocaust was facilitated by train transportations.^[13] In another case, a court ruled that a tattoo which combined a depiction of the gates of Auschwitz and the words “Jedem das Seine” [“To each his own”] on a defendant’s back could only be understood as an endorsement of the Holocaust.^[14] Furthermore, the tattoo disturbed public peace, as the law requires, since the defendant had been seen in a public swimming pool dressed in nothing but his bathing shorts.^[15] Vastly underestimating the number of victims of the Holocaust in a way that surpasses the margins of the historically established scope, can also constitute the offence of downplaying.^[16] The provision has also served, to some extent, as a point of reference beyond criminal law. In an administrative lawsuit about whether the president of a Saxony intelligence service was allowed to state that a political party was aiming to re-establish a National Socialist “Führer” state, the court accepted that the party chairman’s criticism of Section 130 (3) of the Criminal Code indicated right-wing extremist ideas. However, as debate about the boundaries of this provision was part of a pluralist exchange of opinions, and the relevant statements did not indicate the establishment of a “Führer” state, the political party still won the case.^[17]

7. Controversies

While plain Holocaust denial typically concerns supporters of a neo-Nazi agenda, Holocaust relativisations are increasingly expressed across the political spectrum.^[18] It could be argued that the decades-long process of centring German memory culture around the Holocaust has ushered in a reverse effect – and prompted agitators to use it as a reference point for alleged present-day injustices and inconveniences. In recent years, courts have in particular had to deal with comparisons of measures to contain the Corona pandemic to methods of the National Socialist persecution of Jews. The case law was inconsistent and thus not always easy to predict, illustrating the difficulties arising from the tension between the legislator’s aim to ban relativisation of the Holocaust, and the necessary protection of political debate. In this respect, for example, the Higher Regional Court of Bavaria annulled the conviction of a defendant who had compared the treatment of unvaccinated people with the measures against the Jewish population during the November 1938 pogroms.^[19] After a historical analysis that concluded that the “1938 pogroms were already part of the systematic persecution of Jews with the aim of exterminating them”, the lower court had applied Section 130 (3) of the Criminal Code as it found that the comparison relativised the Holocaust.^[20] However, the Higher Court held that “according to the overall context it was at least just as likely that the defendant wanted to express that politicians are always looking for […] ‘scapegoats’, and that in 1938 these were the Jews, and today the unvaccinated” and concluded that – based on this interpretation – the defendant had not relativised the Holocaust. Hence, it found that the statement was protected by the freedom of speech.^[21] Another example was an imitation of the “Yellow Star” where the word “Jew” was replaced by “unvaccinated”. Again, courts delved into delicate issues of collective memory and history to understand whether the “Yellow Star” was directly linked with the genocide, and thus whether the denial ban was applicable. Here, too, the courts were not always in agreement. The Higher Court of Brandenburg emphasized that the decree that introduced the “Jewish star” in 1939 had been related with the regime’s intention to prepare “for the mass deportation of Jews in the German Reich and in the territories occupied by Germany and was a publicly visible measure to carry out the Holocaust.”^[22] In contrast, the Higher Regional Court of Braunschweig underlined that the issuing of the compulsory yellow badge did not constitute the act of genocide itself, even though “collective memory of the National Socialist regime and the existing culture of remembrance might regard the ‘Jewish star’ as a symbol of the persecution of the Jews in general”.^[23] The Higher Court of Frankfurt, in turn, argued that the issue did not depend on historical analysis, but on the intention of the defendant: The “comparison is out of touch with history, tasteless and dramatises the situation of unvaccinated persons excessively, but it does not aim at presenting the horror of the Holocaust as less serious.”^[24]

8. Further Reading

• Benz, ‘The Motivations and Impact of Contemporary Holocaust Denial in Germany’, in R. S. Wistrich (ed), Demonizing the Other: Antisemitism, Racism and Xenophobia, (Routledge 1999).
• Rhein-Fischer, S. Mensing, Memory Laws in Germany: How Remembering National Socialism Is Governed through Law (Torkel Opsahl Academic EPublisher 2022), <https://www.toaep.org/ops-pdf/14-rhein-fischer-mensing>.
• Goldberg, ‘Minority Rights, Honor, and Hate Speech Law in Post-Holocaust West Germany’ [2021] Volume 17, No. 2, Law, Culture and the Humanities, pp. 224-245.
• A. Kahn, ‘Who Takes the Blame – Scapegoating, Legal Responsibility and the Prosecution of Holocaust Revisionists in the Federal Republic of Germany and Canada’ [1998], Volume 16, Glendale Law Review, pp. 17-64.

^[1] Section 6 (1) of the Code of Crimes against International Law includes the crime of genocide. It reads: “Whoever with the intent of destroying as such, in whole or in part, a national, racial, religious or ethnic group

1. kills a member of the group,
2. causes serious bodily or mental harm to a member of the group, especially of the kind referred to in Section 226 of the Criminal Code,
3. inflicts on the group conditions of life calculated to bring about their physical destruction in whole or in part,
4. imposes measures intended to prevent births within the group,
5. forcibly transfers a child of the group to another group

shall be punished with imprisonment for life.” ^[2] By including these sections of the German Code of Crimes against International Law the provision makes a reference to genocide, crimes against humanity and various war crimes. ^[3] Section 130 (1) Criminal Code defines the groups by nationality, race, religion or ethnic origin. ^[4] W. Stenke, ‘Schändung der Kölner Synagoge vor 60 Jahren: Beginn einer Welle antisemitischer Vorfälle’ (Deutschlandfunk, 24 December 2019) <https://www.deutschlandfunk.de/schaendung-der-koelner-synagoge-vor-60-jahren-beginn-einer-100.html>. ^[5] E. Hoven, A. Witting, ‘Antisemitische Volksverhetzung – Für eine Reform der Strafbarkeit von § 130 Abs. 1 und 2 StGB’ [2024] Kriminalpolitische Zeitschrift, No. 1, p. 6. ^[6] Bundesgerichtshof [Federal Court of Justice], Judgement, 11 November 1976, 2 StR 508/76, para. 12, see Wolters Kluwer <https://research.wolterskluwer-online.de/document/149cb41c-a1ab-44c0-a757-bfd758907e8a>; Federal Court of Justice, Judgement, 14 January 1981, 3 StR 440/80 (S), [1981] Neue Zeitschrift für Strafrecht, p. 258. ^[7] Bundesgerichtshof [Federal Court of Justice], Judgement, 18 September 1979, VI ZR 140/78, see Wolters Kluwer <https://research.wolterskluwer-online.de/document/ded2118b-9e5c-47e2-8622-4ea4adabc03e>. ^[8] K. Miltner, Sitzung des Bundestags [Meeting of the Bundestag], 14 March 1985, Plenarprotokoll [Plenary Protocol] 10/126, p. 9318. ^[9] Rhein-Fischer, S. Mensing, Memory Laws in Germany: How Remembering National Socialism Is Governed through Law (Torkel Opsahl Academic EPublisher 2022), pp. 14-16, with further references <https://www.toaep.org/ops-pdf/14-rhein-fischer-mensing>. ^[10] Bundesgesetzblatt [Federal Law Gazette] I [2005] Nr. 20, pp. 969, 970. ^[11] Bundesgesetzblatt [Federal Law Gazette] I [2022] Nr. 48, p. 2148. ^[12] Bundesgerichtshof [Federal Court of Justice], Judgement, 11 November 1976, 2 StR 508/76, see Wolters Kluwer <https://research.wolterskluwer-online.de/document/149cb41c-a1ab-44c0-a757-bfd758907e8a>. ^[13] Oberlandesgericht Hamm [Higher Regional of Court Hamm], Order, 1 October 2015, III-1 RVs 66/15, juris, para. 12. ^[14] Brandenburgisches Oberlandesgericht [Higher Regional Court of Brandenburg], Order, 12 April 2017, (1) 53 Ss 17/17 (13/17), see [2017] Neue Zeitschrift für Strafrecht – Rechtsprechungsreport, p. 206. ^[15] Ibid. ^[16] Verwaltungsgericht Dresden [Administrative Court Dresden], Judgement, 12 March 2024, 2 K 2284/21, para. 20, juris. ^[17] Ibid. ^[18] P. Gensing, ‘NS-Relativierung verfestigt sich’ (Tagesschau, 9 November 2021) <https://www.tagesschau.de/investigativ/antisemitismus-querdenken-ns-verharmlosung-101.html>. ^[19] Bayerisches Oberstes Landesgericht [Higher Regional Court of Bavaria], Order, 15 January 2024, 207 StRR 440/23, see Bayerische Staatskanzlei <https://www.gesetze-bayern.de/Content/Document/Y-300-Z-BECKRS-B-2024-N-187?hl=true>. ^[20] Landgericht München II [Regional Court Munich II], Judgement, 17 August 2023, 6 Ns 510 Js 5/22, para 76, juris. ^[21] Bayerisches Oberstes Landesgericht, 2024, see above note 19. ^[22] Brandenburgisches Oberlandesgericht [Higher Regional Court of Brandenburg], Judgement, 17 April 2024, 1 ORs 23/23, para. 16, 17, juris. ^[23] Oberlandesgericht Braunschweig [Higher Regional Court of Braunschweig], Judgement, 7 September 2023, 1 ORs 10/23, Rn. 17, juris. ^[24] Oberlandesgericht Frankfurt [Higher Regional Court of Frankfurt], Judgement, 13 February 2023, 1 Ss 166/22, Rn. 10, juris.