6. Judicial Sanctions.
The OPC differentiates between a wider and narrower (radical) version of revisionism. The wider concept includes all right-wing extremist attempts to relativise NS. The narrower concept concentrates on the denial of the mass murder of Jews in the gas chambers, that is to say on the 'Auschwitz lie.' This form of revisionism has been long punishable in Germany under articles 130 [incitement of the people -Volksverhetzung], 185 [slander - Beleidigung] and 189 [disparagement] of the criminal code [Strafgesetzbuch - StGB].
In the 1980s the revisionist campaign led to a sharpening of these laws.<475> The Jews, as former inmates of concentration camps, were insulted by the denialist statements, but such was the burden of their experiences that it was anticipated that many would not want to relive them by bringing a case to court. Subsequently the law was altered in 1985 so that the state could initiate action on the part of the plaintiff.<476> The law was sharpened once again in 1994 when denying the Holocaust (the so-called `Auschwitz-lie') was expressly forbidden, punishable with up to 5 years imprisonment.<477>
Up until 1988/9 when Irving's pronouncements on the Holocaust could still be considered as `soft' revisionism; he could rely on the legal and financial weight of the DVU to decisively quash all commentaries which labelled him a `denialist' or that he was an exponent of the 'Auschwitz lie.'<478> With his whole-hearted embracement of the
findings of the Leuchter Report Irving's legal position, became at once more precarious, although he continued to a degree to exercise the same kind of caution practiced by Frey and the DVU.<479> Although 1989 remained for Irving personally a period of grace as far as legal prosecution went, it was clear that the revisionist campaign initiated by the Leuchter Report was attracting the attentions of the police and courts. In justifying his expulsion from Germany the Munich authorities explained that 'To begin with your political activities were inconspicuous and largely took place unnoticed by the wider public. But as of summer 1990 you increasingly appeared at meetings of right-wing extremist groups, especially also in the new Federal states.'<480>
It would be beyond the scope of this report to consider in detail all of the speaking bans (partial or complete) Irving received in the period 1990-1993. not to mention the number of meetings banned at the initiative of the local authorities, or cancelled by those who offered premises to Irving's organisers. It is considered sufficient to examine in detail three exemplary instances of Irving's conflict with the German judicial system and to detail in the process the German courts' estimation of Irving's activities in Germany, leading up to his final expulsion in November 1993.
In light of Irving's later claims to the contrary, it is worth noting that Irving was fully aware of the laws that both he, and those around him, were infringing in Germany in denying the Holocaust.<481> In the early 1980s the German embassy had written to him confirming that the DVU was not an `illegal organisation'. Nevertheless the Consul General reminded Irving, that as a foreign national he was subject to 6 section 3 of the German Foreigners Act of 1965 concerning political activities which forbade him to endanger the.free democratic constitutional structure of the Federal Republic, or support any parties, groups or directions that did the same outside the purview of the
German law.<482> This was the self-same paragraph under which Irving was to receive his first speaking ban in Passau in March 1990.<483> Thus Irving himself had long been aware of the laws he was in danger of infringing with his speeches. In Canada in October 1991 Irving told his audience the Bavarian Ministry of Justice, whom Irving described in the same speech as the `extended arm'of `you know who' [i.e. the Jewish people]
...wanted to talk to me about certain things I had done and said in Germany. Well what I do and say in Germany unfortunately dös violate the law in Germany. I am well aware of that. And I go round from meeting place to meeting place in Germany now quite voluntarily sticking my neck out, because Germany is one of the most difficult places in the world to speak now.<484>
6.1 Partial speaking ban [Redeverbot] of 8 November 1991.
6.1.1. On 8 November Irving was invited to speak in Lentförden [Segeberg] to the Freundeskreis "Ein Herz Mir Deutschland." by Ulrich Harder.<485> The Minister of the Interior of Schleswig Holstein ordered a partial speaking ban [`eingeschränktes Redeverbot'], defining particular topics Irving was forbidden to talk on, citing the law governing foreign nationals [Auslaenderrecht] concerning disruption of the public peace [`Störung des öffentlichen Friedens'].<486> The ban was handed to Irving at the meeting.<487> This seems to have had little effect on Irving. He recorded in his diary that `Police handed me a Verordnung [ordinance] of Kreis Segeburg, what I am not allowed to say, in such detail that I could not reits [Sic] the temptation to read out the whole document, stressing at each paragraph, "I am not allowed to say that either. . . !"<488>
Irving later described the meeting as `successful'.<489>
6.1.2. Ulrich Harder was not so glib. He wrote to Irving explaining to him why he had excluded the television teams Irving had brought with him to a meeting in Harburg the night before, and what such a ban might entail.<490>
I know that you don't think much of law..., but I think it better for your future appearances in Germany if one tries to reverse such rulings. [... ]
A word about Harburg - you will understand my behaviour a little better after Lentförden. Naturally I have known you long enough to know that you would bring with you to the meeting place in Harburg in the end. Otherwise you would not be David Irving. It was clear beforehand that the owner, even if with great reservation, would allow the television into the pub. [... ]
On the other hand the meeting with you was a closed meeting. Let's. imagine there had been somebody in the hall, or had arrived. from the authorities. Then he would have been able, with the appropriate order in his pocket, to. immediately. dissolve the meeting if the television had. been in the hall from the start or it had been recognisable that they would have come in. In judicial German it would have then `been produced for the public' and a closed, private meeting would have become a public one and that one would have certainly banned. Therefore also the evasion in the last ten minutes.
To explain all of this to you would have been too long-winded in Harburg. This is why I acted as I did and did not let the television into the anteroom
[...]You are an indescribable positive factor for our country! which we seek to serve in our way. Enough compliments?<491>
6.1.3. Irving then employed [bevolimachtige] Ulrich Harder to raise a objection
[`Widerspruch'] to the ban for him, which Harder duly undertook, in co-operation with H.J. Rieger.<492>
6.1.4. In comparison to the judicial wrangling surrounding Irving's fine of July 1991 (see below) Harder had to convince Irving that the proper course of action was to avoid politics in the courts.
You will hopefully have seen [in the action) I have not argued with the cause but legally. At the moment one dös not get anywhere with the CAUSE itself, only with false application of the law. But I don't mean a 'secondary theatre of war', as you say, rather flak cover for: the main thrust. Without resistance the authorities could become over confident. That would damage you as regards the freedom of movement in Germany.<493>
6.1.5. Irving's protest [Wiederspruch] was considered and rejected on 15 November 1991 with a ruling [Wiederspruchsbescheid] of 12 February 1992, which Irving in turn took action against on 4 March 1992. Irving claimed that his speech was not political but scholarly [Wissenschaftlich] and that the ban infringed his rights as embodied in the civil code [Grundrecht] Article 5. Paragraph 3 protecting freedom of scientific research and teaching. Even if the speech had been political he was protected by Article 5, Paragraph 1 ensuring freedom of expression.<494>
6.1.6. On 25 May 1992 the court ruled against Irving ruling that Irving's speech had threatened to damage the image of the Federal Republic at a time of flux in Europe and as Germany's neighbours looked on nervously with fears of a re-birth of a nationalist spirit in Germany. The court ruled that Irving had intended in his speech to influence public political opinion
... your speech is suitable and intended to rake up emotions in the audience to allow clear right-wing extremist statements to be aired in public. The thoughts of your like-minded audience can be further stimulated so that they express Nazi opinions in public, vociferously repeat slogans for a revival of Nazi rule.<495>
His speeches are not the mere representation of historical events. The statements the plaintiff makes; especially those in which.he refers to the so-called Leuchter Report, are primarily intended to supply points of argument to those social groups in the Federal Republic whose aim is a renewed spreading of National Socialist thought. You offer the psuedo-scientific background which provides right-wing extremist groups a legitimacy and in addition is meant to allow, them. to convince those who are generally openly disposed to right-wing theses, but faced with the crimes of the National Socialists are lost for arguments, of their ideas.<496>
The court ruled that
In calling the racial murder by the National Socialists a lie, he [Irving] deprives the Jews the inhuman fate that they exposed too merely because of their origins. The tendency to free National Socialism from the stigma of the murder of the Jews is very clearly apparent in the plaintiff. <497>
6.1.7. Irving appealed again on 25 June 1992, calling for the original ban to be declared
unlawful and the court ruling of 25 May 1992 to be changed.<498> In the final instance before Schleswig-Holstein's higher administrative court in October 1993 Irving's appeal was rejected. The court concluded that because of numerous judgements Irving was well aware of legal sanctions against the public denial of the Holocaust, and that his continued statements despite this allowed the conclusion that he was conscious of the degrading character of his opinions.<499>
6.1.8 It added that in as far as Irving supported his case with the Leuchter Report 'this is completely unsuited to refute the historical fact of the Holocaust.'<500> Indeed In as far as the plaintiff bases his findings on the so-called Leuchter report it is already very doubtful if his interpretation of history can be called research at all.'<501>
6.1.9. Irving, who had `acquired himself the reputation as a right-wing extremist. writer and historian ['sich den Ruf eines rechtsextremen Schrifstellers and Historikers erworben.'<502>] had committed a 'considerable disturbance of the public safety and order.' with his statements on the Third Reich and the Second World War, statements that represented a `mockery' [`Verhöhnung'] of the victims of National Socialism.<503>
6.2. Irving's arrest as leader of an illegal demonstration, 21 May 1990 and the consequences.
6.2.1 Following an illegal demonstration to the Feldherrenhalle in Munich after the revisionist congress `Wahrheit macht Frei' on 21 April 1990 Irving, Ewald Althans, and Christian Worch were the subjects of a preliminary investigation [Ermittlungsverfahren]. Irving was arrested during the investigation and later that night freed on bail.<504>
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