Strafgesetzbuch section 86a

The use of symbols of unconstitutional organizations, according to German criminal law, a crime that is governed by § 86a StGB. In this state tort protection is an abstract endangerment offense, that is, the facts of the offense is already fulfilled if the protected right is jeopardized; a breach of legal interest is not required. Proof of legal protection are here the democratic rule of law and political peace. It is the impression be prevented that there was a fairly anti-state development, would be tolerated in the anti-constitutional activities in the direction symbolized by the mark. The specific aim to support is not necessary.

Object of the crime

Tatobjekte may be characteristic of such parties or organizations which are listed in § 86 Section 1 No. 1, 2 and 4 of the Penal Code. As this indicator among other things, flags, badges, uniform pieces, slogans and forms of greeting understood ( § 86 Section 2 Sentence 1 of the Criminal Code ).

Features of banned parties

§ 86 Section 1 Subsection 1 of the Criminal Code called by the Federal Constitutional Court banned parties and markings of their substitute organizations. This applies to the symbols of the SRP and the KPD. As an indication of the KPD (West) hammer and sickle were considered. But have hammer and sickle today not on the KPD (West) directed symbolism more. They are associated with the Soviet Union or in general with Communist parties.

Features prohibited associations

In § 86 Section 1 No. 2 of the Criminal Code associations are called, are incontestable banned because they are directed against the constitutional order or the concept of international understanding. The same applies to substitute organizations. The prohibition authority shall be governed by § 3 para 2 VereinsG.

Features former Nazi organizations

The § 86 Section 1 No. 4 of the Criminal Code aimed at the former Nazi organizations. Among the characteristics that are covered by the penal provision, can next to symbols such as the swastika and slogans such as " Heil Hitler ", " Sieg Heil ", " My honor is loyalty " or count "With German greeting " as well as songs such as the Horst Wessel song or " our flag flutters us forward ."

No Nazi flag are against the imperial war flag ( in a version before 1935, ie without swastika ) or the Song of the Germans.

Confusingly similar mark

Through the Crime Act of 1994 the characteristics listed were treated the same, which are confusingly similar to them ( § 86a paragraph 2, sentence 2 of the Criminal Code ). Neo-Nazis were increasingly noticed with slightly different characters, such as mirror-inverted or inverted swastikas. According to the established case law means " confusingly similar " to a " not very knowledgeable and not just be tested " viewer recognizes the characteristics of a stock symbol. It is irrelevant whether the symbol in question is known or unknown.

Criminal act

It is prohibited to both the dissemination of that mark as well as the public use and the use in a meeting ( § 86a Paragraph 1 No. 1 of the Criminal Code ). Likewise, adequate preparation acts, including the production, the holding and the insertion and removal are punishable ( § 86a paragraph 1 No. 2 of the Criminal Code ).

Excluded are acts of civic information, the defense of unconstitutional efforts of art or science, research or teaching, reporting on events of current affairs or history or similar purposes ( § 86a Paragraph 3 in conjunction with § 86 paragraph 3 of the Criminal Code ).

Legal consequences

The offense is punishable with imprisonment up to three years or a fine. The court may, the offender pursuant to § 92a StGB the ability to hold public office, to gain public electoral rights and the right to vote in public affairs or to vote but know. With low debt, the court may gem. § 86a para 3 i.V.m. § 86 para 4 of the Criminal Code dispense with punishment. In addition, the Tatgegenstände can acc. § 92b Sentence 1 No. 2 of the Criminal Code be confiscated.

Crossed-out swastika

§ 86 paragraph 3 of the Criminal Code, which provides the use of symbols of unconstitutional organizations under penalty does not prohibit uses that serve the civic information, the defense of unconstitutional efforts, the arts, research or teaching.

To counter the right-wing, anti-fascist groups have designed symbols of rejection, including a crossed or openwork swastika. After several German prosecutors view ( OSTA B. Haussler, Stuttgart), however, were those swastika representations also affected by the prohibition laws.

The Mannheim District Court sentenced a student to serve community service at a non-profit organization and to pay a fine of 200 euros, because he had worn a badge with a crossed-out swastika and do not be clearly seen that the carrier thus external to the Nazis. On appeal, the student was acquitted.

The Amtsgericht Tuebingen sentenced a student for wearing the badge with a crossed-out swastika in 2005 to a fine of 50 euros. On 16 March 2006, the Regional Court Tübingen aside that judgment: The carrier was clearly emerged as anti-fascist, the symbol 'll even recognize his opposition to National Socialism for tourists and the carrier would have been otherwise relieved by a " mistake of law " because West German police agencies and authorities § 86a StGB have different interpretations.

On 29 September 2006, the Stuttgart Regional Court sentenced a mail order company of the company Nix Gut Records for the shipment of goods on which crossed or shattered by a fist swastikas were visible, according to § 86a Paragraph 1 No. 1 and 2, § 86 Section 1 No. 4 of the Criminal Code to a fine of 3600 euros. It is illegal to use prints on T -shirts, posters, trailers or the like, which obviously advocating knowingly against the symbolism depicted on them - no matter under what slogan they were written and advertised (such as " Nazis out !"). Because if it were at § 86a StGB indisputably an abstract endangerment offense. Therefore, the objective performance is independent of the subjective political opinion of the user. In addition, the symbolism of the Nazi period should be banned entirely from the public.

The verdict was met with German criminal lawyers and politicians often with outrage and was debated in the Bundestag. The conscious stand against right-wing extremism is to promote, not to criminalize. In a parliamentary request, the Federal Ministry of Justice announced a change in the law if the federal court would confirm judgments against carriers of anti-Nazi symbols.

This had, explains how to use images that National Socialism does not advocate objectively in 1973 for not punishable. The Berlin public prosecutor confirmed this view in the revision proceedings before the 3rd Criminal Division of the Federal Court on 8 March 2007. On 15 March 2007, the Supreme Court acquitted the shipping dealer because a swastika representation, " whose content matches the opposition to the organization and fight against their ideology expressed in overt and unambiguous manner, " the protective purpose of the provision clearly not contradict and therefore § 86a of the Criminal Code is not covered.

Effect

At about auctions of historical objects and documents with image the swastika is often obscured by overlapping or by image processing in advance. For example, "Downfall " and the first DVD the swastika painted over the whole black imperial eagle on the cap of the Hitler Starring Bruno also on the back of an initial version (2005 ) of the DVD cover for the film. In another version of the performers depicted smaller and the cap is partially darkened, so that the icon is not fully recognized; more covers come completely without representation. The movie posters, stills, foreign covers, and the cover of the companion book are not retouched. Historically, research- authors did not provide the character described on the cover for safety's sake and is called their 2009 published book XX - The SS - Rune as a special character on typewriters.