Strafgesetzbuch § 86a
Encyclopedia
The German
Strafgesetzbuch
(Criminal Code) in § 86a outlaws "use of symbols of unconstitutional organisations". This concerns Nazi symbolism
in particular and is part of the denazification
efforts following the fall of the Third Reich.
The law prohibits the distribution or public use of symbols of unconstitutional groups, in particular, flags, insignia, uniforms, slogans and forms of greeting. http://www.iuscomp.org/gla/statutes/StGB.htm#86a
§
86 StGB
Dissemination of Means of Propaganda of Unconstitutional Organizations
(1) Whoever domestically disseminates or produces, stocks, imports or exports or makes publicly accessible through data storage media for dissemination domestically or abroad, means of propaganda:
[…]
shall be punished with imprisonment for not more than three years or a fine.
[…]
(3) Subsection (1) shall not be applicable if the means of propaganda or the act serves to further civil enlightenment, to avert unconstitutional aims, to promote art or science, research or teaching, reporting about current historical events or similar purposes.
[…]
§
86a StGB
Use of Symbols of Unconstitutional Organizations
(1) Whoever:
shall be punished with imprisonment for not more than three years or a fine.
(2) Symbols, within the meaning of subsection (1), shall be, in particular, flags, insignia, uniforms, slogans and forms of greeting. Symbols which are so similar as to be mistaken for those named in sentence 1 shall be deemed to be equivalent thereto.
[…]
The law text does not name the individual symbols to be outlawed, and there is no official exhaustive list. A symbol may be a flag, emblem, uniform parts, or a motto or greeting formula. Note that the prohibition isn't tied to the symbol itself but to its use in a context suggestive of association with outlawed organizations. Thus, the Swastika
is outlawed if used in a context of völkisch ideology, while it is legitimate if used as a symbol of Hinduism
or Buddhism
. Similarly, the Wolfsangel
is outlawed if used in the context of the Junge Front but not in other contexts such as heraldry, or as the emblem of "landscape poet" Hermann Löns
.
Due to the law, German Neo-Nazis took to displaying modified symbols similar but not identical with those outlawed. In 1994, such symbols were declared equivalent to the ones they imitate (Verbrechensbekämpfungsgesetz Abs. 2).
Affected by the law according to Federal Constitutional Court of Germany
rulings are:
Symbols known to be falling under the law are
. In late 2005 police raided the offices of the punk rock
label and mail order store "Nix Gut Records" and confiscated merchandise depicting crossed-out swastikas and fists smashing swastikas. In 2006 the Stade
police department started an inquiry against anti-fascist youths using a placard depicting a person dumping a swastika into a trashcan. The placard was displayed in opposition to the campaign of right-wing nationalist parties for local elections.
On Friday, March 17, 2006, a member of the Bundestag
, Claudia Roth
, reported herself to the German police for displaying a crossed-out swastika in multiple demonstrations against Neo-Nazis, and subsequently got the Bundestag to suspend her immunity from prosecution. She intended to show the absurdity of charging anti-fascists with using fascist symbols: "We don't need prosecution of non-violent young people engaging against right-wing extremism." On March 15, 2007, the Federal Court of Justice of Germany
(Bundesgerichtshof) reversed the charge, holding that the crossed-out symbols were "clearly directed against a revival of national-socialist endeavors", thereby settling the dispute for the future.
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
Strafgesetzbuch
Strafgesetzbuch
Strafgesetzbuch is the German name for Penal Code and is abbreviated to StGB.- History :In Germany the Strafgesetzbuch goes back to the Penal Code of the German Empire passed in the year 1871 which was largely identical to the Penal Code of the North German Confederation.This Reichsstrafgesetzbuch ...
(Criminal Code) in § 86a outlaws "use of symbols of unconstitutional organisations". This concerns Nazi symbolism
Nazi symbolism
The twentieth century German Nazi Party was notable for its extensive use of graphic symbolism, most notably the Hakenkreuz , which it used as its principal symbol, and, in the form of the swastika flag, became the state flag of Nazi Germany....
in particular and is part of the denazification
Denazification
Denazification was an Allied initiative to rid German and Austrian society, culture, press, economy, judiciary, and politics of any remnants of the National Socialist ideology. It was carried out specifically by removing those involved from positions of influence and by disbanding or rendering...
efforts following the fall of the Third Reich.
The law prohibits the distribution or public use of symbols of unconstitutional groups, in particular, flags, insignia, uniforms, slogans and forms of greeting. http://www.iuscomp.org/gla/statutes/StGB.htm#86a
Law text
The relevant excerpt of the German criminal code reads:§
German legal citation
As in most countries, Germany has a standard way of citing its legal codes and case law; an essentially identical system of citation is also used in Austria.-Citing portions of the German legal code:...
86 StGB
Strafgesetzbuch
Strafgesetzbuch is the German name for Penal Code and is abbreviated to StGB.- History :In Germany the Strafgesetzbuch goes back to the Penal Code of the German Empire passed in the year 1871 which was largely identical to the Penal Code of the North German Confederation.This Reichsstrafgesetzbuch ...
Dissemination of Means of Propaganda of Unconstitutional Organizations
(1) Whoever domestically disseminates or produces, stocks, imports or exports or makes publicly accessible through data storage media for dissemination domestically or abroad, means of propaganda:
- 1. of a party which has been declared to be unconstitutional by the Federal Constitutional Court or a party or organization, as to which it has been determined, no longer subject to appeal, that it is a substitute organization of such a party;
[…]
- 4. means of propaganda, the contents of which are intended to further the aims of a former National Socialist organization,
shall be punished with imprisonment for not more than three years or a fine.
[…]
(3) Subsection (1) shall not be applicable if the means of propaganda or the act serves to further civil enlightenment, to avert unconstitutional aims, to promote art or science, research or teaching, reporting about current historical events or similar purposes.
[…]
§
German legal citation
As in most countries, Germany has a standard way of citing its legal codes and case law; an essentially identical system of citation is also used in Austria.-Citing portions of the German legal code:...
86a StGB
Strafgesetzbuch
Strafgesetzbuch is the German name for Penal Code and is abbreviated to StGB.- History :In Germany the Strafgesetzbuch goes back to the Penal Code of the German Empire passed in the year 1871 which was largely identical to the Penal Code of the North German Confederation.This Reichsstrafgesetzbuch ...
Use of Symbols of Unconstitutional Organizations
(1) Whoever:
- 1. domestically distributes or publicly uses, in a meeting or in writings (§ 11 subsection (3)) disseminated by him, symbols of one of the parties or organizations indicated in § 86 subsection (1), nos. 1, 2 and 4; or
- 2. produces, stocks, imports or exports objects which depict or contain such symbols for distribution or use domestically or abroad, in the manner indicated in number 1,
shall be punished with imprisonment for not more than three years or a fine.
(2) Symbols, within the meaning of subsection (1), shall be, in particular, flags, insignia, uniforms, slogans and forms of greeting. Symbols which are so similar as to be mistaken for those named in sentence 1 shall be deemed to be equivalent thereto.
[…]
Symbols affected
Swastika
The swastika is an equilateral cross with its arms bent at right angles, in either right-facing form in counter clock motion or its mirrored left-facing form in clock motion. Earliest archaeological evidence of swastika-shaped ornaments dates back to the Indus Valley Civilization of Ancient...
is outlawed if used in a context of völkisch ideology, while it is legitimate if used as a symbol of Hinduism
Hinduism
Hinduism is the predominant and indigenous religious tradition of the Indian Subcontinent. Hinduism is known to its followers as , amongst many other expressions...
or Buddhism
Buddhism
Buddhism is a religion and philosophy encompassing a variety of traditions, beliefs and practices, largely based on teachings attributed to Siddhartha Gautama, commonly known as the Buddha . The Buddha lived and taught in the northeastern Indian subcontinent some time between the 6th and 4th...
. Similarly, the Wolfsangel
Wolfsangel
The Wolfsangel is a symbol. It is also known as the Wolf's Hook or Doppelhaken. The upright variant is also known as "thunderbolt" and the horizontal variant as "werewolf"....
is outlawed if used in the context of the Junge Front but not in other contexts such as heraldry, or as the emblem of "landscape poet" Hermann Löns
Hermann Löns
Hermann Löns was a German journalist and writer. He is most famous as "The Poet of the Heath" for his novels and poems celebrating the people and landscape of the North German moors, particularly the Lüneburg Heath in Lower Saxony. Löns is well known in Germany for his famous folksongs...
.
Due to the law, German Neo-Nazis took to displaying modified symbols similar but not identical with those outlawed. In 1994, such symbols were declared equivalent to the ones they imitate (Verbrechensbekämpfungsgesetz Abs. 2).
Affected by the law according to Federal Constitutional Court of Germany
Federal Constitutional Court of Germany
The Federal Constitutional Court is a special court established by the Grundgesetz, the German basic law...
rulings are:
- Sozialistische Reichspartei (1952)
- Kommunistische Partei Deutschlands (1956).
- Volkssozialistische Bewegung Deutschlands/Partei der ArbeitVolkssozialistische Bewegung Deutschlands/Partei der ArbeitVolkssozialistische Bewegung Deutschlands/Partei der Arbeit was a German Neo-Nazi group led by Friedhelm Busse...
(1982) - Aktionsfront Nationaler Sozialisten/Nationale Aktivisten (1983)
- Deutsche Alternative (1992)
- Nationalistische Front (1992)
- Wiking-JugendWiking-JugendThe "Wiking-Jugend" was a German Neo-Nazi organization modelled after the Hitlerjugend.The Sozialistische Reichspartei was outlawed in 1952, together with its youth organization "Reichsjugend"...
(1994) - Freiheitliche Deutsche Arbeiterpartei (1995)
- Blood and HonourBlood and HonourBlood & Honour is a neo-Nazi music promotion network and political group founded in 1987 with links to Combat 18 and composed of white power skinheads and other white nationalists....
, Germany chapter (2000)
- the SwastikaSwastikaThe swastika is an equilateral cross with its arms bent at right angles, in either right-facing form in counter clock motion or its mirrored left-facing form in clock motion. Earliest archaeological evidence of swastika-shaped ornaments dates back to the Indus Valley Civilization of Ancient...
as a symbol of the Nazi Party, prohibited in all variants, including mirrored, inverted etc. - the Celtic crossCeltic crossA Celtic cross is a symbol that combines a cross with a ring surrounding the intersection. In the Celtic Christian world it was combined with the Christian cross and this design was often used for high crosses – a free-standing cross made of stone and often richly decorated...
, prohibited as a symbol of the VSBD/PdAVolkssozialistische Bewegung Deutschlands/Partei der ArbeitVolkssozialistische Bewegung Deutschlands/Partei der Arbeit was a German Neo-Nazi group led by Friedhelm Busse...
and in the variant used by the White Power movement. The legal status of the symbol used in non-political contexts is uncertain, but non-political use is not acted upon in practice. - the solar cross as a symbol of the Ku Klux KlanKu Klux KlanKu Klux Klan, often abbreviated KKK and informally known as the Klan, is the name of three distinct past and present far-right organizations in the United States, which have advocated extremist reactionary currents such as white supremacy, white nationalism, and anti-immigration, historically...
- the Sig runeSig RuneSig is the name given by Guido von List for the Sigel or s rune of the Armanen Futharkh, and is also used by Karl Maria Wiligut for his runes.-Nazism:...
as used by the SS - the SturmabteilungSturmabteilungThe Sturmabteilung functioned as a paramilitary organization of the National Socialist German Workers' Party . It played a key role in Adolf Hitler's rise to power in the 1920s and 1930s...
emblem - the legal status of the Othala rune is disputed; prohibited as a symbol of the Hitler-Jugend/Wiking-JugendWiking-JugendThe "Wiking-Jugend" was a German Neo-Nazi organization modelled after the Hitlerjugend.The Sozialistische Reichspartei was outlawed in 1952, together with its youth organization "Reichsjugend"...
- the WolfsangelWolfsangelThe Wolfsangel is a symbol. It is also known as the Wolf's Hook or Doppelhaken. The upright variant is also known as "thunderbolt" and the horizontal variant as "werewolf"....
as used by the Hitlerjugend and Junge Front - Gauwinkel badges (2002)
- ReichskriegsflaggeReichskriegsflaggeReichskriegsflagge was the official name of the war flag used by the German armed forces from 1867 to 1945. A total of seven different designs were used during this period.-Imperial Germany:...
: prohibited in the Third Reich version including a swastika; the status 1867-1921 version without swastika is uncertain, having served as an emblem of the Nationale Sammlung - the "Heil Hitler" greeting (1970)
- the "Sieg Heil" greeting (1990)
- Unsere/Meine Ehre heißt Treue, along with the TotenkopfTotenkopfThe Totenkopf is the German word for the death's head and an old symbol for death or the dead. It consists usually of the skull and the mandible of the human skeleton...
symbol, as the motto of the Waffen-SSWaffen-SSThe Waffen-SS was a multi-ethnic and multi-national military force of the Third Reich. It constituted the armed wing of the Schutzstaffel or SS, an organ of the Nazi Party. The Waffen-SS saw action throughout World War II and grew from three regiments to over 38 divisions, and served alongside...
and Mit deutschem Gruß as the verbal equivalent of the Hitler saluteHitler saluteThe Nazi salute, or Hitler salute , was a gesture of greeting in Nazi Germany usually accompanied by saying, Heil Hitler! ["Hail Hitler!"], Heil, mein Führer ["Hail, my leader!"], or Sieg Heil! ["Hail victory!"]... - the Horst-Wessel-LiedHorst-Wessel-LiedThe Horst-Wessel-Lied , also known as Die Fahne hoch from its opening line, was the anthem of the Nazi Party from 1930 to 1945...
(the anthem of the Nazi Party) and Unsre Fahne flattert uns voranVorwärts! Vorwärts! schmettern die hellen FanfarenVorwärts! Vorwärts! schmettern die hellen Fanfaren was a marching song of the Hitler Youth, which was also known as their banner song...
(a song of the Hitler-Jugend) (1991).
Anti-fascism symbols
In 2005, a controversy was stirred about the question whether the paragraph should be taken to apply to the display of crossed-out swastikas as a symbol of anti-fascismAnti-fascism
Anti-fascism is the opposition to fascist ideologies, groups and individuals, such as that of the resistance movements during World War II. The related term antifa derives from Antifaschismus, which is German for anti-fascism; it refers to individuals and groups on the left of the political...
. In late 2005 police raided the offices of the punk rock
Punk rock
Punk rock is a rock music genre that developed between 1974 and 1976 in the United States, the United Kingdom, and Australia. Rooted in garage rock and other forms of what is now known as protopunk music, punk rock bands eschewed perceived excesses of mainstream 1970s rock...
label and mail order store "Nix Gut Records" and confiscated merchandise depicting crossed-out swastikas and fists smashing swastikas. In 2006 the Stade
Stade
Stade is a city in Lower Saxony, Germany and part of the Hamburg Metropolitan Region . It is the seat of the district named after it...
police department started an inquiry against anti-fascist youths using a placard depicting a person dumping a swastika into a trashcan. The placard was displayed in opposition to the campaign of right-wing nationalist parties for local elections.
On Friday, March 17, 2006, a member of the Bundestag
Bundestag
The Bundestag is a federal legislative body in Germany. In practice Germany is governed by a bicameral legislature, of which the Bundestag serves as the lower house and the Bundesrat the upper house. The Bundestag is established by the German Basic Law of 1949, as the successor to the earlier...
, Claudia Roth
Claudia Roth
Claudia Benedikta Roth is a German Green Party politician and one of the two current party chairs, together with Cem Özdemir.- Biography :...
, reported herself to the German police for displaying a crossed-out swastika in multiple demonstrations against Neo-Nazis, and subsequently got the Bundestag to suspend her immunity from prosecution. She intended to show the absurdity of charging anti-fascists with using fascist symbols: "We don't need prosecution of non-violent young people engaging against right-wing extremism." On March 15, 2007, the Federal Court of Justice of Germany
Federal Court of Justice of Germany
The Federal Court of Justice of Germany in Karlsruhe is the highest court in the system of ordinary jurisdiction in Germany. It is the supreme court in all matters of criminal and private law...
(Bundesgerichtshof) reversed the charge, holding that the crossed-out symbols were "clearly directed against a revival of national-socialist endeavors", thereby settling the dispute for the future.
See also
- Nazi symbolismNazi symbolismThe twentieth century German Nazi Party was notable for its extensive use of graphic symbolism, most notably the Hakenkreuz , which it used as its principal symbol, and, in the form of the swastika flag, became the state flag of Nazi Germany....
- Modern use of Nazi flagsModern use of Nazi flagsThe modern use of flags from the German Third Reich is subject to legal restrictions in a number of countries.Whilst legal in the overwhelming majority of countries, the display of flags associated with the Nazi regime is subject to restriction or an outright ban in others, particularly those...
- DenazificationDenazificationDenazification was an Allied initiative to rid German and Austrian society, culture, press, economy, judiciary, and politics of any remnants of the National Socialist ideology. It was carried out specifically by removing those involved from positions of influence and by disbanding or rendering...
- Verbotsgesetz 1947Verbotsgesetz 1947The Verbotsgesetz 1947 abbreviated VerbotsG, is an Austrian constitutional law, which banned the Nazi Party and provided the legal framework for the process of denazification in Austria, as well as aiming to suppress any potential revival of Nazism.The law was amended in 1992 to prohibit denying...
- SwastikaSwastikaThe swastika is an equilateral cross with its arms bent at right angles, in either right-facing form in counter clock motion or its mirrored left-facing form in clock motion. Earliest archaeological evidence of swastika-shaped ornaments dates back to the Indus Valley Civilization of Ancient...
- Thor SteinarThor SteinarThor Steinar is a German clothing brand manufactured by Thor Steinar Mediatex GmbH, a subsidiary of International Brands General Trading, a Dubai-based company.- Controversy :Since the inception of Thor Steinar, the company has used two logos...
External links
- http://www.recht-gegen-rechts.de/symbole.html
- http://www.lehrerfreund.de/in/schule/1s/rechtsradikale-symbole/
- http://www.hagalil.com/deutschland/rechts/erkennungszeichen/rechtsextremismus.htm