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.