OLG Braunschweig: “Nicht Geimpft” star on Facebook is not a punishable incitement to hatred

It is well known that the use of symbols related to National Socialism is not only socially wrong, but also punishable in certain constellations. The law not only provides for criminal liability in the case of the use of unconstitutional symbols, such as the swastika. The trivialization of Nazi crimes is also punishable as incitement of the people.

But not every statement that is inappropriate and morally offensive constitutes criminal conduct. So what limits does the law provide? The 1st Criminal Senate of the Higher Regional Court dealt with this question in its judgment of September 7, 2023 (Ref. 1 ORs 10/23), which was based on the following facts:

The defendant posted on his Facebook profile in late 2020 a hexagonal yellow star with the words “Not Vaccinated” on a light blue rectangular background. His intention was to draw attention to his limited living situation as a result of the regulations in the Corona Pandemic.

In criminal proceedings instituted as a result, the Clausthal-Zellerfeld Local Court exonerated the defendant from the charge of incitement to hatred pursuant to Section 130 (1) of the German Criminal Code. 3 of the Criminal Code (StGB) acquitted.

The defendant’s conduct was undoubtedly inappropriate and distasteful, but did not meet the statutory requirements of the offense. With his publication, the defendant had indeed played down the exclusion intended by the National Socialist regime of injustice with the so-called “Jewish star”. However, the criminal offense expressly covers only acts of genocide as defined in § 6 para. 1 of the International Criminal Code (ICC).

The Göttingen Public Prosecutor’s Office (ZHIN) has appealed against this decision. In today’s culture of remembrance, the stigmatization of the Jewish population cannot be separated from their disenfranchisement and persecution with the goal of extermination. The obligation to wear the so-called “Jewish star” should therefore be considered part of the genocide, the Prosecutor General’s Office said at the hearing.

The 1st Criminal Division did not follow this line of argument and dismissed the appeal. The Senate made it clear in its decision that it lacked any understanding for the defendant’s statement, which equated the immeasurable suffering of the Jewish population under National Socialism with the restrictions in the Corona Pandemic and thus trivialized it. However, the question of criminal liability must be separated from this.

The legislator has in the criminal offense of § 130 para. 3 StGB does not criminalize every trivialization of National Socialist injustice, both according to the unambiguous wording and according to the system of the law. The law explicitly requires that the trivialization refer to a specific act of genocide. The district court had therefore correctly decided that the exclusion intended by the star as a preparatory act could not be equated with an act of genocide designated in the law. In addition, the published image was also not suitable for disturbing the public peace within the meaning of Section 130 (1). 3 StGB to disturb. It had not been aimed at inciting third parties to possible acts of violence or breaches of the law.