Racist slogans on Sylt — punishable racism?

A video that appeared on almost every social media plat­form and news medium last week and caused a nati­on­wide uproar: a blurred smart­phone image shows people dancing to the party song “L’amour Toujours” in the Sylt club “Pony” and unab­as­hedly shou­ting racist slogans on Sylt that you would only expect to hear from neo-Nazis who are clearly reco­gnizable from the outside.

It seems all the more bizarre when a young man, wearing a white shirt and a sweater tied around his shoulders with his fingers on his upper lip suggesting a Hitler beard and a Hitler salute, is caught on camera.

In order to hold the people filmed in the video to account, some people took the initia­tive on social media them­selves by rese­ar­ching and publi­shing the iden­ti­ties of the people singing in the video.

But what could be crimi­nally rele­vant in the video — regard­less of its moral repre­hen­si­bi­lity?

One offense that might imme­dia­tely come to mind in this context (at least for lawyers) is inci­te­ment of the people under Section § 130 StGB.

Pursuant to Section 130 (1) StGB, anyone who incites hatred against a national, racial, reli­gious or ethnic group, incites violence or arbi­trary measures or attacks the human dignity of others by mali­ciously deni­gra­ting or slan­de­ring the afore­men­tioned group is punished with a prison sentence of three months to five years.

The slogan “Foreig­ners out” was already the subject of procee­dings in Bran­den­burg in 2001, in which the Higher Regional Court affirmed the exis­tence of inci­te­ment to hatred. The decisive factor for the assump­tion of criminal liabi­lity under Section 130 StGB is that the realiza­tion of the offence does not require any plan­ning or inten­tion of a direct act of violence. It is ther­e­fore suffi­cient that the sentence “Foreig­ners out” contains a corre­spon­ding abstract inci­te­ment, even if this was not concre­tized.

The same legal assess­ment is likely to apply to the slogan “Germany to the Germans”, which has an explicit National Socia­list conno­ta­tion in addi­tion to the state­ment “Foreig­ners out”.

For the same reason, showing the Hitler salute and Hitler’s beard could also be considered a realiza­tion of § 130 para. 1 StGB. In addi­tion, Section 130 (3) StGB could be considered here, which speci­fi­cally sanc­tions the appr­oval, denial or trivia­liza­tion of acts committed under the rule of National Socia­lism.

In the context of criminal law analysis, the case law of the Federal Consti­tu­tional Court must always be taken into account, accor­ding to which similar state­ments may be covered by freedom of expres­sion under certain circum­s­tances. In the opinion of the Federal Consti­tu­tional Court, the specific context in which the state­ments were made is important when weig­hing up freedom of expres­sion (Art. 5 Para. 1 GG) and human dignity (Art. 1 GG) or the general right of perso­na­lity (Art. 2 Para. 1 in conjunc­tion with Art. 1 Para. 1 GG).

In parti­cular, it plays a role whether such state­ments were made in a private or public context. In the present case, the circum­s­tance of a private party could well give the impres­sion that the state­ments were of a more harm­less nature than if they had been made in a formal context, for example. However, the party has argu­ably become more public than ever, espe­ci­ally due to the posting on social media — given the fact that the people singing were consciously looking into the camera, they seemed to be aware of this.

The video thus appears almost as a public racist provo­ca­tion and there is much to suggest that it is suitable for distur­bing the public peace within the meaning of Section 130 StGB.

The imita­tion of the Hitler salute and the display of the Hitler beard may also be punis­hable for the use of uncon­sti­tu­tional symbols in accordance with Section 86 StGB.

Accor­ding to this provi­sion, anyone who uses propa­ganda mate­rial of an uncon­sti­tu­tional party or its substi­tute orga­niza­tion, an uncon­sti­tu­tional banned asso­cia­tion or propa­ganda mate­rial which, accor­ding to its content, is intended to continue the efforts of a former National Socia­list orga­niza­tion is punished with a prison sentence of up to three years or a fine.

Only time will tell what the people in the video will actually face from a criminal law perspec­tive, apart from personal and employ­ment law conse­quences. As there is curr­ently at least an initial suspi­cion, the public prose­cu­tor’s office will inves­ti­gate in any case and, if neces­sary, bring charges at the end of the inves­ti­ga­tion.