Before dealing with the Court’s case law, it may be useful to briefly look at the criminal
provisions on the basis of which Holocaust deniers have been prosecuted and, in most
cases, sanctioned. In what may come as a surprise, the German Criminal Code lacked any
specific provision aimed at punishing the so-called Auschwitz lie (Auschwitzlüge) until
1994. A previous attempt in 1985 failed to expressly criminalize this act. It was agreed,
however, and to simplify, to insert a new provision (Section 130) aimed at punishing
incitement to hatred against segments of the population.17 This does not obviously imply
that Holocaust deniers, before 1985, could not be prosecuted and sanctioned. Numerous
successful prosecutions were conducted, not only on the basis of general criminal
provisions dealing with breaches of public order,18 insult or defamation,19 or the
disparagement of the memory of deceased persons,20 but also on the basis of provisions
of the Civil code.21 This proved satisfactory until a controversy erupted about a decision
of the Federal Supreme Court – not to be confused with the Federal Constitutional Court
– holding that publication of another person’s denial of the Holocaust could not constitute
incitement to racial hatred. As a result and as previously mentioned, a new Section 130
was inserted into the German Criminal Code in 1985 to more effectively punish
incitement to hatred. For symbolic more than legal reasons, Holocaust denial was finally
clearly outlawed in 1994 although the Holocaust is yet not explicitly mentioned and
singled out: Section 130(3) now states that “whoever, publicly or at a meeting, approves
of, denies or trivializes an act committed under the regime of National Socialism … in a
manner likely to disturb the public peace, shall be liable to imprisonment up to five years
or a fine” (our emphasis). The criminal law arsenal was further strengthened in 2005.
According to the new Section 130(4), “whoever, publicly or at a meeting, disturbs the
public peace in a manner that violates the dignity of the victims by approving of,
glorifying, or justifying National Socialist rule of arbitrary force shall be liable to
imprisonment of not more than three years or a fine.”