Austrian Court Decisions Against Nazi Propaganda

One of the first tasks that Karl Renner’s provisional government after Austria’s liberation in 1945 has to face, was to rid Austria’s economic and political life of Nazis. For this reason a constitutional amendment known as the NS-Verbotsgesetz[56] was passed. It established the legal basis for denazification and the prohibition of the formation of similar new groups, and the publishing of neo-Nazi propaganda.

As such, it is still an important pillar of Austria’s constitution. Articles Four, Nine and Ten of the Austrian State Treaty complimented this law and have also been amended to the Austrian Constitution.

From a practical point of view, the most important legal tool for the fight against neo-Nazi activities today is Para 3 of the Verbotsgesetz.

It provides for the punishment of anyone reviving National Socialist organizations, campaigning for such organizations, approving of National Socialist measures, and trivializing National Socialist crimes against humanity. Austria’s Constitutional Court has elaborated on just how the Verbotsgesetz should be applied, and, just as importantly, the implied duty to implement the law.

It states that no act entailing a revival of National Socialist activity can be considered legal. There is no doubt that Para 3 should be applied by every official authority within its area of influence, regardless of whether its implementation is specified in the laws governing the activities of that authority explicitly or implicitly.

Paragraph Three is to be considered a “universal clause” applicable everywhere and by everyone, not just by one specific agency of Austria’s executive and law-enforcement organizations. The uncompromising rejection of National Socialism is a cornerstone of the Republic.

Every act of the State has to abide, without exception, to this ban. No official act may indicate the State’s complicity in a revival of National Socialist activity.[57]

The Austrian courts have always taken a clear stand against the neo-Nazi propaganda lies that there were never gas-chamber mass murders in the National Socialist concentration camps.

In 1984 a group of activists from the magazine “Halt” tried to register a new political party under the name “Nationale Front” with the Ministry of Interior. The Ministry did not recognize this party as legitimate. The party-founders then took their case to the Constitutional Court, which rejected its appeal:

“The question of whether a revival of activity in the sense of the Verbotzgesetz exists, can not be answered – as the Supreme Court (in reference to earlier judicature) already aptly demonstrated in its judgement of June 25, 1986, 9 Os 132-85 – through an accompanying description of all possible areas of activity, because the goals of the NSDAP and its subsidiary organziations were all too manifold and multifarious. In any case, an apology or trivialization of the (criminal) measures of the Nazi regime and the glorification of the annexation of Austria in 1938 constitutes a revial of activity according to the Verbotsgesetz just like any other one-sided propagandistic positive description of National Socialist measures and goals. /…/

In the case at hand, the Minister of the Interior came to the supposition that a revival of activity existed. He substantiated this supposition comprehensively and logically in the contested order.

The’Provisional Program for the Nationale Front’, ‘Suggestions for Eliminating the Existing System’, published in Halt (No 23, Nov., 1984), clearly shows that the attempted formation of the ‘Nationale Front’ represented a revival of (Nazi) activity.”[58]

Another example is the repeated confiscation of newspaper “Deutsche National-Zeitung” which comes to Austria from Munich. It is published by Gerhard Frey, founder of the radical-right “Deutsche Volksunion”. The Austrian courts have repeatedly ordered the newspaper confiscated for denying the Holocaust. Frey filed a complaint against one such confiscation (issue March 9, 1979, No. 4, Vol. 29) but was rebuffed by the Austrian Supreme Court in its decision of March 6, 1980.

The Court found that many of the texts that had appeared in an article entitled “Dangerous Doubts About Gassings”[59] were examples of the revival of Nazi activity as seen in Para 3 of the Verbotsgesetz. It also found that the Lower Court had correctly and objectively recognized such a “one-sided” trivialization of what Austrian courts had already identified as the “inhuman National Socialist measures” as “in line with the meaning of Para 3 of the Verbotsgesetz”.

The Lower Court had correctly recognized the illegality of certain passages which described conditions in the Nazi concentration camps, especially those in Auschwitz and Birkenau, maintained that there had never been any mass-murders of Jews or other persons in gas chambers and insisted it was all a swindle perpetrated by false witnesses.[60]

The Supreme Court’s decisions were later reflected by the Vienna Criminal Court which ruled in April 1980 that “one of the main propaganda tactics used to promote National Socialism is to deny the historical reality of Nazi crimes, to insist they are all lies, and, when the crimes are acknowledged, to trivialize them, and to put these crimes on the same footing with Allied war-crimes, often doing so in the most macabre fashion.”[61]

Authorities have other possibilities in addition to the constitutional regulations mentioned above. For instance, there is a law against wearing or displaying certain medals and symbols.[62] The introductory law to the Administrative Procedure Laws passed by the National Assembly in February 1986 authorize every policeman to take immediate action whenever neo-Nazi leaflets or similar material are distributed.[63]

Moreover, the Criminal Code, Para 283 of January 23, 1974, (BGBI. No. 60/1974), states that it is illegal to agitate in any form against “any church or religious community existing within the country, or against any group because of their race, nationality, or ethnic background”.