May I bother you again with sec. 86a of the German Criminal Code? This is the norm that makes it a criminal offence to disseminate and publicly use symbols of banned organisations. Last week I came across the issue in the context of the disbanded Nakba demonstration in Berlin and the slogan „From the River to the Sea, Palestine will be Free“. The more I look into it, the more interesting and strange and disturbing I find this norm in its current form and practice.
The offence has essentially taken shape in the context of Nazi organisations: The relevant decisions mostly deal with the historical organisations of the Nazi dictatorship and their successors, which were banned under party and association law. The norm is intended first and foremost to protect „political peace„, which is not to be endangered by the appearance that the Nazis can organise themselves again and that their signs „once again belong to the everyday political picture“ in the Federal Republic of Germany.
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The same theoretically applies to banned non-Nazi organisations of communist, islamist or other description, but as far as I can see they have not left as many traces in shaping this offence, nor the practice apparently for the most part: the signature blue shirt of the communist Freie Deutsche Jugend, for example, is legally quite undoubtedly a symbol of a banned organisation, but nevertheless no East German nostalgist needs to fear prosecution if he/she puts on that garment on 1 May or 7 October. As Thomas Fischer puts it in his StGB commentary (sec. 86a, no. 7):
„(Criminal liability) is not called into question by the fact that a majority of the East German population, remembering happy youthful days, is unwilling to show any understanding for this prohibition. Rather, in practice the offence is simply not applied – not because of dogmatic arguments, but apparently because the German judiciary does not dare.“
The ban is not only about the outward appearance, but also about the inward effect: What counts as a symbol are not just trademarks which are associated with the organisation in the public at large. Even symbols that most people would pass by unsuspectingly without any Nazi or otherwise problematic association coming to their minds can be punishable under section 86a because they can be used by the initiated as a token of their affiliation and togetherness. The so-called „Celtic Cross“, for example, has nothing whatsoever to do with National Socialism, is not even Germanic at all, and I imagine many an esoterically minded fan of Ireland and Druid culture might be found unsuspectingly wearing it on a leather thong around their necks – but once a banned neo-Nazi fringe group that nobody has ever heard of declares that particular design to be their symbol, then it becomes objectively a criminal offense to display it in public. Even the most innocuous and ubiquitous symbol can theoretically become a cause for criminal liability this way, as soon as and insofar as a banned organisation finds it useful to appropriate it.
In the concrete case, this does not seem to me to be so problematic. It’s only an offence if you are aware of the Nazi appropriation. And anyone who learns that the specific design he is wearing has been declared their symbol by a Nazi group, and still insists in showing it off in public, may indeed discuss the matter with the public prosecutor’s office, for all I care. What I find more troublesome are foreign organisations that are banned because of terrorist activities. The slogans they choose to write on their flags can also be widely used by broad and peaceful and completely legitimate resistance and freedom movements.
Jin Jiyan Azadi, as is well known, was and is the slogan of the women’s revolution in Iran, and wherever solidarity with their struggle is publicly proclaimed here in Germany, it can be heard and read. Prominent politicians in Germany across the party spectrum, From Dorothee Bär to Annalena Baerbock, have had themselves photographed with this slogan in their hands, to show their support for the courage and strength symbolised by these three words of resistance against state terror, oppression and femicide.
The authorship of this slogan, however, is attributed by some to PKK founder Abdullah Öcalan. Jin Jiyan Azadi is Kurdish and has a long tradition in the Kurdish freedom movement, of which the women’s movement is an integral part. The Kurdistan Workers‘ Party has been banned in Germany since 1993, when the then Federal Home Secretary Manfred Kanther („I will not allow Germany to become the scene of gang wars and the persecution of political opponents“) complied with the wishes of Turkey’s NATO partners and banned the PKK, and although the danger it poses in and for Germany, in contrast to the Turkish nationalist, non-prohibited „Grey Wolves“, has apparently been significantly reduced, it remains so to this day. Which means: displaying their symbols is punishable by law. If one takes the current doctrine of criminal law seriously, that would probably also have to include Jin Jiyan Azadi. If this is so, can it be right that it depends on the awareness of this connection on the part of the current German Foreign Minister whether her decision to publicly show solidarity with the protests in Iran by means of these three words is to be assessed as a criminal act or not?
Shortly before Foreign Minister Baerbock took office, the scope of sec. 86a of the German Criminal Code has been significantly expanded. As a one of their last legislative acts before the 2021 Bundestag elections, the then CDU/CSU/SPD government coalition extended that scope to organisations that are not necessarily active domestically and therefore not banned, but are on the EU terror list. It is difficult to say for what purpose exactly; there is little or nothing in the explanatory memorandum to the law and in the parliamentary debates, but one may well assume: It was mainly about the terrorist organisations Hamas, Hezbollah and PFLP, which for whatever obscure reasons remain formally unbanned in Germany, and about the slogan used, among others, by them: „From the River to the Sea, Palestine will be free“.
That the slogan can be understood and used in an anti-Semitic way, I wrote last week. That it can be understood and used in a non-anti-Semitic way, and that its origin is to be sought in protest against the British decolonization policy of partition applied in other contexts as well, rather than in fantasies of extermination against Jews and the Jewish state, is also argued by some with reasons worthy of consideration. This argument can and must be had. To suppress it and punish any public use of that phrase before that argument can even happen seems to me to be a thoroughly authoritarian move.
Last week I wrote about the disbandment of the non-prohibited Nakba demonstration the Saturday before last on the basis of sec. 86a. In January, a demonstrator who had held up a sign with the From-the-River slogan was indicted under sec. 86a at the Mannheim District Court and was acquitted only because it could not be proven that he had knowledge that the slogan was a Hamas/PFLP symbol. The court considered it proven that the phrase is to be considered a symbol of a terrorist organisation on the basis of the situation report on anti-Semitism of the Federal Office for the Protection of the Constitution, where it is mentioned that Hamas and Hezbollah have been using it. In Saxony, I know of a journalist who received a summons to police headquarters on suspicion of violating sec. 86a. The repression is on, it seems. Sec. 86a, once created chiefly as an instrument to suppress any appearance of Nazi organisational continuity, is increasingly turning into a tool to silence migrant diaspora communities that are disturbing German foreign policy.
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Inhaltliche Schwerpunkte: Forschung zu Demokratie, Digitalisierung, Diversität; Lehre im Verfassungs- und Verwaltungsrecht.
There is another questionable thing about the recent amendment to sec. 86 and 86a (hat-tip to Lukas Theune). The law does not designate the foreign terrorist organisations whose symbols are criminalized itself, but refers to the EU terror list instead, and in a very specific way. An organisation is included if
… it is listed as a legal person, group or entity in the Annex to Council Implementing Regulation (EU) 2021/138 of 5 February 2021 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) 2020/1128 (OJ L 43, 8.2.2021, p. 1) (…).
This implementing regulation of 5 February wasn’t even in force any longer at the moment the law came into force itself. On 20 July 2021, it had been replaced by an updated regulation. That, too, no longer applies; this version replaced it, only to be replaced by this version, and that one, finally, by the currently valid version. The EU terror list is a highly dynamic document. People and organisations keep being added to or deleted from it, and every time that happens a new regulation is necessary.
Dynamic references to EU law in criminal law have been deemed a constitutional problem by the Federal Constitutional Court. That was probably the reason for this oddity. But can this be the way to handle this? As far as I can see, the relevant part of the list has remained unchanged, so far, but that doesn’t mean it can’t be changed at any time. Suppose one day the Council removes an organisation from the list: what then applies? Would the offence still be punishable? Apart from that, is it even conceivable under the rule of law to declare an act a criminal offence by referring to a norm that is formally no longer valid? And either way, how can all this be reconciled with the constitutional requirement of legal clarity and certainty?
Questions upon questions. The answers will probably have to be given by the Federal Constitutional Court sooner or later.
The week on Verfassungsblog
… summarised by PAULA SCHMIETA:
In Poland, the PiS government passed a law(supposedly) against Russian influence – which seems fit to take out political rivals (too). WOJCIECH SADURSKI speaks of a monstrous law containing so many defects and outright conflicts with the rule of law, that he has trouble to know where to start with his analysis.
In early May, Prime Minister Giorgia Meloni, initiated a discussion about constitutional reform in Italy. FRANCESCO BROMO discusses the potential and challenges of the three options in question.
Following the elections in Greece two weeks ago, IOANNIS KAMPOURAKIS shares some thoughts on the result and on what is at stake in the foreseeable future. According to him the elections made clear that there is currently no articulated alternative vision of social ordering that could inspire and successfully challenge the status quo in Greece.
Following last week’s election in Turkey, DILEK KURBAN investigates the issue of electoral competitiveness. She describes the politico-legal context that enabled Erdogan’s rise and argues that none of the elections held since 2002 have been competitive or fair.
In an unprecedented move, the Ecuadorian President, Guillermo Lasso, recently dissolved the country’s National Assembly. GUSTAVO PRIETO reports on the happenings in Ecuador, the role of the Constitutional Court and considers the road ahead.
In Namibia, the supreme court found that ‘spouse’ – for the purposes of immigration and citizenship rights – extends to same-sex couples who lawfully married in foreign jurisdictions. MAHIMA BALAJI highlights the key take-aways and explains why this decision could improve the recognition of LGBTQIA+ people’s rights in the region.
An der TU München ist am Lehrstuhl fürRecht und Sicherheit der Digitalisierung (Prof. Dr. Dirk Heckmann) zum 15.8.2023 (oder später) eine 100%-Stelle als wissenschaftliche*r Mitarbeiter*in zu besetzen (teilzeitfähig, befristet auf ein Jahr mit Verlängerungsoption). Tätigkeitsschwerpunkte liegen u.a. im Daten(schutz)recht, Internetrecht und IT-Sicherheitsrecht.
Furthermore, the discussion on the draft bill on the Self-Determination Act continues. LEA RABE criticises insufficient reflection on gender (in)equality and criticises that the draft has failed to develop the concept of equality beyond the binary logic of woman/man.
25% of Switzerland’s resident adults are barred from participating in national referenda and elections due to the restrictive citizenship law. The Democracy Initiative aims at changing this by means of a referendum. SAMUEL D. SCHMID explains why this undertaking – although unlikely to succeed – is vital for the country.
JOHANNES THIERER continues last week’s debate on the draft bill to modernise citizenship law. He has concerns about whether the tightened economic requirements for naturalisation are constitutional.
To mark the 75th anniversary of the Nakba, two pro-Palestinian rallies were to take place in Berlin – but both were banned. ANDREAS GUTMANN criticises the grounds given for the bans, which, according to him, are largely based on racist attributions.
Following announcements by left-wing groups to hold protests in connection with the criminal proceedings against Lina E., the city of Leipzig has banned all open-air gatherings for this weekend. JONATHAN SCHRAMM thinks that the ban is not only too broad, but also likely to result in escalation.
The Joachim Herz Doctoral School of Law at Leuphana University Lüneburg invites applications for Ph.D. scholarships on “Law and Transformation” for the upcoming winter term (2023/24). Research projects on the following topics are particularly welcome: (1) Digitalisation/Digitality and Law, (2) Climate Change/Decarbonisation and Law, (3) International Conflicts and Law, and (4) Law as a Decisive Factor in Transformations. Application deadline is 11 June 2023.
Lastly: We have compiled last week’s articles on whether the last generation is a criminal organisation in the blog debateKleben und Haften: Ziviler Ungehorsam in der Klimakrise. Two further contributions – one by SAMIRA AKBARIAN and another by KLAUS FERDINAND GÄRDITZ – were added this week.
That’s it for this week. In the meantime, all the best to you!
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