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Constitutional
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 "Germany for Germans" -

Xenophobia and Racist Violence in Germany

 

(condensed and cited from an April 1995 Human Rights Watch/Helsinki publication, Library of Congress Catalog Number 95-76078, ISBN 1-56432-149-5, pages 69-77 and 108-109)

 

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Human Rights Watch/Helsinki is a non-governmental organization, established in 1978, whose function is to monitor and promote the observance of internationally recognized human rights as well as international compliance with the human rights provisions of the 1975 Helsinki Accords. Its focus is on Africa, the Americas, Asia, the Middle East and on the signatories of said Helsinki Accords.

 

Human Rights Watch is supported by private individual and foundations worldwide. It accepts no government funds -- directly or indirectly. In other words, it is an ideologically independent agency.

 

In an April 1995 publication, this agency released a stinging condemnation of current governmental practices in Germany. In a chapter entitled "Government Measures to Ban Right-Wing Groups and Prohibit Hate Speech," here is what Human Rights News Watch/Helsinki says of Germany:

 

"The government has begun more rigorously to enforce laws prohibiting racial incitement. It also treats any denial that the Holocaust occurred (otherwise known as the "Auschwitz Lie") as incitement under the criminal statutes. These steps were taken pursuant to laws that have been in effect since World War II.

 

Human Rights Watch Helskinki acknowledges that the tragedy of the Holocaust is the historical context in which such laws were adopted. We also recognize that, by more rigorously enforcing these laws, the German government has underscored the seriousness with which it views the danger posed by right-wing extremists. Nevertheless, Human Rights Watch/Helsinki believes that such measures seriously restrict the protected right to freedom of expression, association and assembly. We are mindful of the fact that international human rights law provides different and conflicting standards in this area, and base our position on a strong commitment to freedom of expression as a core principle of human rights. We believe that freedom of speech and equal protection of the laws are not incompatible, but are, rather, mutually reinforcing rights.

 

Explaining and summarizing what is happening in Germany, Human Rights Watch/Helsinki goes on to say:

 

. . . sweeping restrictions that affect entire parties, organizations or philosophies inevitably cast too broad a net; they can be used to suppress dissenting political movements of all sorts and often encourage gratuitous restrictions beyond those initially foreseen.

 

. . . Numerous right-wing organizations have been banned during the last two years. Other groups have been placed under surveillance by the minister of the interior.

 

. . . Once an organization is banned, the police conduct raids, confiscate right-wing propaganda and the party's property, and freeze its bank accounts. Members are arrested, and are often charged with glorifying Naziism through the use of right-wing symbols and gestures, and through inflammatory speech

 

. . . once an organization is banned, its leaders can be prosecuted for maintaining an illegal organization or for possession of right-wing propaganda. However, Human Rights Watch/Helsinki notes that in many of these cases, prosecutors have the option of bringing charges against right-wing leaders for conspiracy to commit acts of violence, an option that would preserve the right to free speech.

 

Human Rights Watch/Helsinki places particular focus on:

 

Article 9 of the German Constitution (the Basic Law or Grundgesetz), which guarantees freedom of association, provides that "Associations, the purpose or activities of which conflict with criminal statutes or which are directed against the constitutional order or the concept of international understanding shall be prohibited." The minister of the interior has the authority to ban associations or organizations it determines are directed against the constitutional order. In addition, article 21(2) of the Constitution states, "Parties which, by reason of their aims or the behavior of their adherents, seek to impair or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional."

 

Human Rights Watch/Helsinki then points out a chilling sentence:

 

The Federal Constitutional Court has the power to determine whether a political party is unconstitutional and should be banned.

 

Under the subtitle "The Prosecution of Hate Speech and other Forms of Expression," Human Rights Watch/Helsinki, referring to Article 86 of the German Criminal Code, states that this article forbids

Dissemination of the propaganda of unconstitutional organizations

 

Whoever. . . distributes, produces for distribution within this area, keeps in supply or imports into this area propaganda

 

(1) of a political party which has been held unconstitutional by the Federal Constitutional Court, or of a political party or association, concerning which an unappealable determination (emphasis added) has been made that it is a substitute organization of such a political party, or

 

(2) of an association which has been unappealably prohibitied (emphasis added) because its activities are directed against the constitutional system of government or the concept of international understanding, or concerning which anunappealable determination (empasis added) has been made that it is a substitute organization of such prohibited association . . .

 

(4) propaganda, the extent of which is designed to further the aspirations of a former National Socialist organization

 

shall be punished by up to three years' imprisonment or by fine. In other words, the government decides who is a "criminal" - with no legal recourse provided for individuals or groups - and follows up with punishment! Is that a democratically run State?

 

Human Right Watch/Helsinki states that, as of March, 1995, nine organizations have been banned.

 

 These were:

• Nationale Front (NF)

• Deutsche Alternative (DdA)

• The Nationale Offensive (NO)

• Deutscher KAMERADSCHAFTSBUND (DKW)

• The Nationale Block

• Heimattreue Vereinigung DEUTSCHLAND (HVD)

• Freundeskreis FREIHEIT DEUTSCHLAND (FFD)

• The Wiking-Jugend, and the

• Freiheitliche DEUTSCHE ARBEITERPARTEI (FAP)

 

In addition to banning these small extreme right-wing organizations, the federal minister of the Interior placed the "Republican Party" under surveillance in August 1994 . . .

 

The organization goes on to say that

 

. . . in the last two years, prosecutors have increasingly brought charges for inciting ethnic hatred under article 130 of the German penal code, which states:

 

Whoever, in a manner to breach the public peace, attacks the human dignity of others by

 

 (1) inciting to hatred against parts of the population,

 

 (2) provoking to violent or arbitrary acts against them,

 

(3) insulting, maliciously making them contemptible, or defaming them shall be punished by a term of imprisonment of three months to five years.

 

Human Rights Watch/Helsinki then cites recent cases of government crack-downs, such as:

 

• Günther Deckert, sentenced by a lower court to a one-year suspended sentence ". . . ought to be given a stricter sentence for stating that the Holocaust never occurred".

 

• An eighteen year old was sentenced to 20 months in prison for giving the stiff-arm salute

• Four young men were arrested for singing the national-socialist anthem in a private house in Neuköln.

 

• Neo-Nazi leader Heinz Reiþ was convicted to a five months suspended sentence for having exhibited the Hitler salute and for having denied that the Holocaust happened.

 

• Ewald Althans, a German nationalist youth leader, was sentenced to eighteen months imprisonment without parole ". . . for having denied that the Holocaust occurred" in propaganda videos and for having used banned Nazi symbols.

 

• Christian Worch, the head of the banned right-wing "National List" in Hamburg, was sentenced to two years of imprisonment for having continued to carry out activities of a banned organization.

• Arnulf Winfried Priem, formerly head of the now-banned "German Alternative" in Berlin, has been held in pre-trial detention because he allegedly possessed Nazi propaganda.

 

To this list we might add the recent arrest of an American citizen, Hans Schmidt, 68, of Pensacola, Florida, for having used two words - "juden- und freimaurerverseucht", (meaning "Jew- and Freemason-infested") in an Open Letter sent to a government official in Germany. Apparently, the warrant for his arrest was Europe-wide.

 

Human Rights Watch/Helsinki goes on to say:

 

There are numerous legal consequences for those who are members of right-wing extremist parties, even if those parties have not been banned. For example, members of the Republican Party, which has not been banned but is under surveillance, can be subject to disciplinary measures if they hold public service positions. The minister of the interior for the state of Hesse, Gerhard Bkel, announced in January 1995 that he would begin an investigation of public servants who hold leadership positions in the Republican Party.

Furthermore, states Human Rights Watch/Helsinki, a new "Crime Prevention Law" went into effect on December 1, 1994, with many provisions that were aimed primarily at right-wing extremist groups. These provisions included:

• a broader "definition of incitement of violence and racial hatred to include blanket statements defaming whole groups and minorities."

• a prohibition of "the use of any Nazi-like flags, badges, uniforms, slogans or gestures."

• an end to the requirement that prosecutors show that a racist statement is an "assault on human dignity." (emphasis added). Now, anyone who denies the Nazi genocide against the Jews can be sentenced to a period of inprisonment of up to five years for incitement to racial hatred."

This means that, according to some statistics, tens of millions of Americans who now have doubts about some aspects of the Holocaust and dare express these doubts about the German Government approved version of the Holocaust are vulnerable to arrest if they happen to travel in Europe!

 

Human Rights Watch/Helsinki goes on to say:

 

. . . while viewing extremist violence with great concern, Human Rights Watch/Helsinki at the same time opposes laws that prohibit the expression of anti-foreigner or anti-Semitic sentiments, as well as laws that prohibit groups that hold such views from forming associations and holding public gatherings, so long as that speech, association or assembly does not rise to the level of incitement to or participation in violence. . . .

 

we base our policy on our conviction that the protected rights of speech, association and assembly are fundamental rights and should be guaranteed.. . . It is our view that it is inherently dangerous for governments to have the power to determine which political philosophies are "threatening", power that invites abuse against political foes. . . .

 

Human Rights Watch condemns all forms of discrimination on such arbitrary grounds as nationality, race, gender or religion. In many countries, anti-discrimination efforts take the form of laws penalizing the communication of group hatred on these or other grounds.

 

Such laws are often justified on the grounds that they curb racial and ethnic violence. But there is little evidence they achieve their stated purpose, and they have often been subject to abuse. Many governments or other actors that encourage or exploit group tensions use "hate speech" laws as a pretext to advance a separate political agenda or to enhance their own political power. In a number of countries, the chief targets of "hate speech" laws have been minority rights activists fighting discrimination by the same majority that administers the laws. . .(emphasis added).

 

We therefore view as suspect any action by governments to criminalize any expression short of incitement to illegal action and consider any law or prosecution that is not based on a strict interpretation of incitement to be presumptively a violation of the rights of free expression.

 

. . . Expression should never be punished for its subject matter or content alone, no matter how offensive it may be to others.