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Old Holocaust denier Ursula Haverbeck before a court hearing in Berlin, November 17, 2020
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Lie and truth
Section 130 (3) StGB reads:
A prison sentence of up to five years or a fine is punished for anyone who, publicly or in a manner, undertakes an act of the type specified in Section 6 (1) of the International Criminal Code that is committed under the rule of National Socialism Assembly approves, denies, or belittles.
Many call that which is punished afterwards an "Auschwitz lie".
Those who commit one of the acts of crime, that is, approve, deny or play down the Holocaust, call it the "Auschwitz lie" to claim that the Holocaust took place on the generally known scale.
The rational argue with the insane, the truth-speakers with the liars, about the right to the word "lie".
Of course, no one can win this fight in the arena of opposing one another, which both sides are all the more bitter, the more important the word fetishes they are throwing at each other.
Thomas Fischer, arrow to the right
Born in 1953, is a legal scholar and was chairman of the 2nd criminal division of the Federal Court of Justice.
He is the author of an annually revised standard short commentary on the criminal code and numerous other specialist books.
There is not the slightest doubt that the earth is a sphere and not a tray, that it orbits the sun and not the sun around Venus, that stones fall down because masses have gravity, and that in and from the Führer state NSDAP millions and millions of people were murdered for reasons that were called "racial" and are now called "racist", because this word is somehow better and truer, because on the one hand there are no human "races", on the other hand the racists are called because they claim so, mostly combined with the courageous thesis that they themselves belong to the better, more beautiful and in any case somehow more valuable "race" by luck of providence.
One might think that is stupid anyway;
you have to decide.
From a purely human point of view, it is understandable and touching and not really surprising that your own sand castle appears to be the most beautiful, your own nose as the most graceful and your own stupidity as the most important.
Of course, the fun stops when you draw the conclusion that you are in league with nature and the world spirit when you break a stranger's noses.
What the truth is, the whole, real, immovable, and how you can tell it is a pretty old question.
It is part of human nature, although it deals only marginally with it.
Dogs, cats and monkeys do not argue about the truth because everything is reality to them and memory is only one form of it.
People long for it when they go on dream paths.
But we have to live with the brain that we have and with the environment that we are.
That is why people have to spend their lives dealing with what is real and what is true and how to bring the two together.
The truth is, if we leave aside the very great sources of truth that are consistently in the hereafter or in terms that have been thought of over the millennia and which are all characterized by the fact that they renounce any reality outside of themselves, a common one , socially related reconstruction of reality influenced by valuations, symbols and forecasts.
It depends on them when there is more than one person, practically always with the exception of the state of "delusional sense".
Because it is so, the truth is so important to well-being.
You could say: It doesn't matter whether the Thirty Years' War took place or whether the Elbe flows between Dresden and Hamburg when we are sleeping or standing by the Rhine.
Truth about the past is existentially important because it is an understanding of the present (reality).
Punishment and truth
I mention all of this to bring you the idea that prosecution for denying the obvious truth is a problematic issue.
Historically, criminal law has worked its way from the outside to the inside: from controlling external behavior ever closer to controlling internal self-control and thinking.
After 500 years ago, God as the only truth authority had been shifted from the real world into a transcendent hereafter and had set about the rational mastery of reality, everyone in the world of absolutism was allowed to be happy according to his own style, provided he took care of it inwardly and in Outside adhered to the 19,000 paragraphs of the General Prussian Land Law.
Nowadays we see things differently: We want the citizen to lead himself morally, therefore criminal law also has his thoughts and feelings in its sights: The "attitude" is worth a lot to us, and whoever shoots a person with a toy gun made of wood, because he mistakenly believes it is real, is imprisoned for life for attempted murder.
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In addition, however, what constitutes freedom and what enables human development must assert itself.
Optimized mind control leads, as has been proven many times, to blatantly dysfunctional societies, regardless of the "ideological", irrational beliefs.
So it depends - once again - on a balance between conflicting conditions, circumstances, tendencies and possibilities: as much alignment as possible 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 needs the form and these binding terms of themselves. Somewhat simpler: You have to find forms of balance.
If you look around in the world of criminal law, you will find many legal systems in which the truth is treated as a valuable asset, especially the truth about the greatness of one's own state history, about the tremendous victories of the respective management personnel and the wickedness of all its opponents , on the quasi-historical necessity of rulership as it is and will be forever.
Believe it 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: You are allowed to think what you want, but in addition to the rules of external behavior, you have to understand the construction itself and pay attention to the functioning of the social establishment of truth.
The pure doctrine of truthfulness is not enforced in Germany by the Bundeswehr, but by rule-based public communication.
That is the reason why the Federal Constitutional Court describes the fundamental right to freedom of expression as "absolutely constitutive".
Therefore, it is actually rather remote to protect "the truth" criminally and prosecute the spreading of lies as an attack on the truth.
If one were to take this literally, it would be the exact opposite of what is "absolutely constitutive".
However: Spreading panic through public threats of attacks is punishable even if the threat is not meant seriously (see Section 126 of the Criminal Code);
The dissemination of content with the glorification of inhuman cruelty is also punishable if the victims portrayed are only "human-like" (see Section 131 StGB), and everyone has a criminally protected right to disseminate defamation about them that does not damage their reputation and destroy their existence (incorrect statements of fact) (see §§ 186, 187 StGB).
The truth about the past is thus protected insofar as it is the basis of present life.
If two sections of the population claim that it is the "truth" that different gods have ordered them to destroy the other, one does not have to protect the truth but prevent civil war.
One way of doing this would be to prohibit the public dissemination of the idiocy "truths" mentioned.
§ 130 - "sedition of the people" - ultimately protects the life, limb and existence of people.
This protection is brought forward here because conditions are to be prevented in which it can no longer be guaranteed by the general rules (e.g. prohibition of manslaughter and bodily harm).
Incitement against groups of the population, calls for violence, threats to security are, as history has shown a thousand times, dangerous actions.
The "sedition of the people" is a so-called abstract endangering offense that punishes attacks on the so-called public peace, that is, 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 offense of sedition.
Of course one can say: Whether any fools “believe” that the National Socialist Holocaust did not take place is completely irrelevant.
This is no more significant to the world and to the truth than the view of some others that the world is ruled by aliens or founded by Martians.
These last-mentioned opinions would not be insignificant if their followers would call for the earth to be prepared for the return of the masters from space and until then to slaughter the elites or to burn all forests.
That is to say: The truth about the Holocaust is not the core, but the medium of public peace that Section 130 (3) StGB seeks to protect.
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So much for the background to the criminal provision.
It does not change the fact that Section 130 (3) StGB is also a completely normal criminal provision: in order to be punished, one must realize the objective (act) and the subjective (intent) offense.
And what the intention of "denial" is is not a matter of course and also not undisputed.
Some say: the intent to deny exists when the perpetrator knows that he is denying something.
Others - the "prevailing opinion" - say that intent presupposes that the perpetrator knows that his view of past reality contradicts that of everyone else.
Still others - for example the columnist in his comment on the StGB - say: Denial in the sense of Section 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 »factual error«, that is, they cannot be punished (see Section 16 (1) StGB).
This is not a practically relevant problem because 99 percent of the "deniers" know very well that the Holocaust really took place, but pretend to be "unbelievers" because they in fact approve of the genocide (or would even like to repeat it).
It goes without saying that such persons can be punished under Section 130.
Then one could, under certain circumstances, leave the couple of idiots who really (!) Believe that the earth is a piece of paper in their sad madness alone.
It is obvious that this is not that easy: How can you tell the difference between real and delusional liars?
Punishment and symbol
This brings us to Ms. Haverbeck and her comrades, including Mr. Horst Mahler or his (probably: former) fiancée and defense attorney, who used her pleading to announce the death penalty to the judges.
There are people like that, and in their shadow there are quite a few, who huddle around with half-blurred sympathies and allegedly agnostic excuses: They only deny secretly and among their own kind.
The decisive factor here too is that the perpetrators are not concerned with "the truth" as a scientific reality: they do not research all their life whether Caesar really spoke to Brutus when he murdered him, or whether Cleopatra in milk or in champagne used to bathe before she met Antonius.
Your truth center is only hyper-excited in one place: Holocaust or non-Holocaust?
Was there six million or maybe only 5.8 million murdered?
This already shows that it is not about numbers, but about the principle: The allegedly wrong view of the general public is proof and symbol for these convicts of the alleged "wrong" opinion on National Socialism, which they consider by and large to be a great thing.
The struggle for the alleged truth is therefore not a struggle for past reality, but for the social and political future.
Incitement against the alleged lie about Auschwitz is in truth incitement against Jews, Sinti and Roma, foreigners.
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There is no reason not to punish convicts.
It is permissible to have any "conviction", whether it is pleasant or not, and first of all a private matter.
Anyone who murders, humiliates or injures other people "out of conviction" has to be made aware of the boundary between what they think and what they do.
At the same time, the sanctioning must show the others - i.e. everyone - that this limit exists and that it must be observed.
That too is "symbolic".
One could take the view that perpetrators like Ms. Haverbeck should not be offered further stages for self-expression in court through prosecution.
I think that would be too cheap an argument, on the edge of convenience.
Criminal trials and main hearings do not have the task of protecting the public from becoming aware of criminal offenses.
Even those who, as the accused, announce that they will undertake physical attacks during the trial will not be released but handcuffed.
It is true that analogous things are not allowed to be done with notorious agitators.
In exceptional cases, however, you can exclude them, otherwise you have to and can endure the gossip.
As long as there is still a bit of legal defense among them, you have to listen and give the accused a chance.
Not more.
This applies equally to Haverbecks, God's warriors and other people who have made humanity happy.
Punishment and Age
Should one (very) old people prosecute and punish, even lock them up?
This is repeatedly asked publicly, but surprisingly hardly in the case of jealous killers, child rapists or terrorists.
But especially with old Nazi criminals, who have lived in secrecy for 70 years "blameless" and are dragged from 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 for messages from criminal law.
Counter question: why not?
At least that applies to those perpetrators who are still criminally active even in old age.
If you go from one sedition to the next at the age of 92, you will probably be fit enough to take 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 actually no longer worthwhile and that it should be allowed to go ahead.
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It may be different when it concerns acts that were done a lifetime ago.
Murder and genocide do not become statute-barred: that's the way it is, and that's how the majority of the population obviously wants it.
Hardly anyone complains that it is possible to solve 50-year-old sex murders with the help of DNA analysis: "Cold cases" are considered to be very special delicacies for everyday horror.
If the love of law and the non-statute of limitations is so great, the Auschwitz ramp should not be excluded from it.
There are limits to the ability to negotiate and to enforce.
However, they are very far: not because German criminal law is so merciless and inhumane, but because the well-being of prisoners is taken care of very well, at least physically.
Today there are very many old people in prison, many are chronically ill, not a few die there of 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 prison system as a whole, no doubt about it.
The majority of citizens obviously do not want that at all.
Instead, to open a media-public department for "grace" seems to me little sense and extremely unfair.
There were a few prisoners who might have deserved grace rather than highly active agitators.
As a rule, you cannot choose whether you will die of lung cancer.
Whether you just keep your mouth shut, yes.
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