Political Justice in New Normal Germany

Photo: Christoph Söder/dpa

So, this came as a pleasant surprise.

A German judge, Dr. Clivia von Dewitz, published an extensive opinion piece about my case, and “political justice,” in the Berliner Zeitung, a mainstream newspaper. I’ve translated it below for any non-German readers who are not sick to death of reading about my case.

And, even if you’re sick of hearing about my case, you should read her piece anyway, because (a) it will clear up any lingering misconceptions you may have about the law regarding the public display of swastikas and other Nazi symbols in Germany — Dr. von Dewitz happens to be an expert on that law, and (b) she references the RKI Files (i.e., the Robert Koch-Institute Files), which are shaking things up here in Germany.

That’s a whole story in and of itself, and I want to stay on track, but here’s an excerpt from a piece by two German lawyers in Cicero magazine about what the RKI Files are exposing [translation mine] …

“To be clear: The first lockdown in the history of the Federal Republic of Germany was apparently based largely on political or ministerial influence on the RKI, which was sold to the public and the courts as an independent scientific risk assessment. ... Since the RKI was bound by the instructions of and conformed its statements to the wishes of politicians, the minutes reveal that contradictions, ambiguities and inaccuracies in the official statements were systematically ignored, indeed had to be ignored. The publicly communicated protection of others through vaccination did not exist, nor did the extent of the risk to the general population from corona infections postulated by the RKI. An objective look at the data published by the RKI in Germany in March 2020 showed no national medical threat.” — Corona und Recht: Die Pandemie der Unmenschlichkeit

So, yeah, kind of a big story, which is of course the broader context of my story, which Dr. von Dewitz explains at some length in her piece about my case.

Oh, and, if you’re wondering about the phrase “political justice,” it’s mostly a German concept. I don’t think the term is commonly used in English, or at least I couldn’t find many references to it. It means exactly what it sounds like it means …

“In a political justice system, the independence of the judiciary is overridden by the ruling authorities and thus fundamental democratic rights are violated. This independence [of the judiciary] is part of the separation of powers guaranteed to Germany by Article 20, Paragraph 2, of the Basic Law [i.e., the Grundgesetz, the German constitution]. Political justice is an abuse of executive power. The equality of political groups before the law is not taken into account, but rather, the justice system serves primarily to eliminate political opposition and thus expands the scope of the prevailing political system, rather than holding it in check.” — Otto Kirchheimer: Politische Justiz. Verwendung juristischer Verfahrensmöglichkeiten zu politischen Zwecken. (1961 Political Justice) dt. Luchterhand, Neuwied 1965, S. 606.

Anyway, without further ado, here’s the translation of Dr. Clivia von Dewitz’s piece in the Berliner Zeitung [notes, in brackets, mine].

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Judge on the CJ Hopkins Case: Using Nazi Comparisons Against Covid Policy - Is That Allowed?

Our author wrote her doctorate on the Nazi-insignia ban and says: Hopkins' acquittal at his first trial was correct. Why is the Berlin public prosecutor appealing the verdict?

by Clivia von Dewitz
Berliner Zeitung, September 21, 2024

The appeal hearing in the CJ Hopkins case is scheduled to take place before the Berlin Appellate Court on September 30. The American-born man, married to a Jew, and living in Berlin for almost 20 years, is accused by the Berlin public prosecutor's office of violating the Nazi-symbol ban that has been in effect in Germany since 1968 with two posts on X [formerly Twitter]. The bone of contention is an image showing a white medical mask with a white swastika shining through in the middle of it. He published various accompanying texts, which will be relevant in the course of the trial. But more on that later.

Showing Nazi symbols still causes discomfort among a large portion of the population in Germany. Rightly so — these symbols represent an unjust regime of unimaginable proportions, which is responsible in particular for the Holocaust and the Second World War and thus for millions of deaths.

The [Nazi] Symbol Ban

Immediately after the Second World War, people understandably began to think about how to deal with Nazi symbols. The first criminal regulations that restricted National Socialist ideas and thus also Nazi insignia were the German military government's occupation laws for the American zone (such as Law No. 154). The law stipulated stiff penalties for the use of Nazi symbols on flags, banners and the like.

After 1949, only the Assembly Act of 1953 contained a ban on the use of National Socialist symbols. It was not until 1960 with the 6th Criminal Law Amendment Act that the ban on displaying the symbols of former National Socialist organizations was introduced into the Criminal Code as Section 96a. In 1968, the insignia ban was introduced as Section 86a StGB as part of the party-ban provisions in the version that essentially still applies today, thus placing the standardization of the Nazi-symbol ban in the more general context of the party-ban law.

According to the ban on [Nazi] insignia (§ 86 Para. 1 No. 4, 86a Para. 1 No. 1 StGB), only those who distribute or publicly display Nazi symbols “which, based on their content, are intended to reflect the efforts of a former National Socialist organization” are liable to prosecution. This means that not every use of a Nazi symbol falls under the ban. On the contrary, the law confirms that only material, the content of which is directed against the free democratic basic order or the concept of understanding among nations, is considered [criminal] propaganda media (Section 86 Para. 3 StGB).

And, according to the criminal statute (Section 86 Para. 4 StGB), criminal liability is also excluded if the material serves the purposes of civic education, defense against unconstitutional efforts, art or science, research or teaching, or reporting on current events or history, or similar purposes (the so-called social adequacy clause).

It was in the 1970s that Nazi symbols were first used in a critical or ironic way. In these cases, jurisprudence failed to establish criminal liability, either at the level of the offense or by virtue of the application of the social adequacy clause. Because a critical and distanced use of Nazi symbols is not punishable, especially in view of Article 5 of the Grundgesetz [i.e., the German constitution, literally “Basic Law”]. The fundamental right of freedom of expression and freedom of art enshrined therein is constitutive of a democracy.

The Verdict of the Tiergarten District Court: Acquittal

Given the above-described legal background, the Tiergarten District Court quite rightly acquitted CJ Hopkins on January 23, 2024. In its judgment, the court came to the conclusion that the defendant did not commit a criminal offense with his two posts, because, according to the verdict, in both of the posts cited by the Berlin public prosecutor's office, "when taking into account the text associated with the use of the mask, it can easily be seen that the connection to National Socialism is made in an emphatically negative sense."

The posts are also unsuitable to promote a revival of National Socialist ideas or even former National Socialist organizations. Because people with neo-Nazi goals would never use the symbols of National Socialist organizations in an artwork that expresses their rejection. Therefore, any effect of the posts in a direction corresponding to the symbolic content of National Socialist insignia is ruled out from the outset. In short: The court found that an American citizen had used Nazi symbols without intending to glorify the Nazi regime in any way.

The question now arises as to how the Berlin public prosecutor's office is appealing this acquittal and summoning CJ Hopkins to court again on September 30, 2024. According to the wording of the [Nazi] insignia ban, and the special importance, according to the Federal Constitutional Court, of freedom of expression and art for a democracy, there can be no other result than impunity for such posts.

In a ruling on April 11, 2024 in response to a constitutional complaint by Julian Reichelt, the Federal Constitutional Court noted the special importance of freedom of expression and made it clear that the state must also put up with harsh and polemical criticism. This must also apply when Nazi symbols are used to criticize state orders, regardless of whether the criticism is justified or not.

The Prosecution's Argument

The argument presented by the Berlin public prosecutor's office in the hearing before the Berlin district court — according to which distance from the Nazi era should not “only” become clear “when reading the text accompanying the image or when reflecting on it” — is not convincing. The criticism of the state expressed in the two posts through the use of the swastika clearly does not glorify the Nazi regime. On the contrary, the defendant is using Nazi symbolism to warn against a totalitarian style of government. This may seem extreme, but if you consider the government's actions during the Corona period, harsh criticism is at least understandable.

The minutes of the Robert Koch Institute (RKI) suggest that the government ordered significant parts of the measures restricting fundamental rights from 2020 to 2022 not on the basis of scientific findings, but out of political calculation, such that a new assessment of the government's actions from 2020 to 2022 is necessary.

This also and especially applies to the wearing of masks. For example, the RKI minutes of November 4, 2020 state: “FFP2 masks are very unlikely to be a protective measure. In addition, there is no reliable protection for laypeople without accompanying application!” And later, in the minutes of November 16, 2020, it states: “Can we still intervene? It is inconvenient and dangerous for masks to be used by laypeople. The German Society for Microbiology and Hygiene considers FFP2 masks, if they do not fit well, to be a less favorable means than MNS (“mouth and nose protection,” BZ editor's note), as they provide a false sense of security. (…) Influence is no longer possible, the deliberations are taking place now, RKI was not asked in advance.” And in the very next sentence it states: "If a decision is made like this, the challenges should be pointed out, and disbursement by prescription should be recommended after prior consultation with the family doctor. The family doctor can check whether there is a cardiac or pulmonary risk and can provide instructions on its use.”

Political Justice?

Given these statements by scientists in late 2020, how can the ongoing proceedings against doctors who issued mask-exemption certificates be justified? The suspicion of political justice or attitude-based criminal law arises.

The Osnabrück Administrative Court recently initiated a commendable new development in jurisprudence. The court introduced the RKI protocols in a trial regarding an employment ban as a result of the facility-related vaccination requirement. The RKI President was heard as a witness. At the end of the hearing, the court found that there were considerable doubts about the scientific independence of the RKI, as it was operating according to the instructions of the Federal Ministry of Health. Because of massive doubts about the constitutionality of a paragraph in the then applicable Infection Protection Act, it has submitted the case to the Federal Constitutional Court for a decision (a so-called judge's submission). It remains to be seen whether the Federal Constitutional Court will take advantage of the opportunity and adapt its decisions to the actual state of scientific knowledge in the future.

Finally, it was recently highlighted by retired judge Manfred Kölsch that the damage to taxpayers caused by the ordering of 5.7 billion masks by May 5, 2024 (by the then Health Minister Jens Spahn), as well as by storage costs and by the likely economic consequences of the rulings by the Cologne Higher Regional Court on compensation for mask suppliers, is likely to total around ten billion Euros. The Federal Audit Office speaks of a “massive over-procurement” and further states that the masks were “of no use in combating the pandemic and therefore of no health policy value”. At the same time, the RKI protocol of January 27, 2020 states: “It is not recommended to stockpile masks etc.”

Politicians ordered masks contrary to all economic reason, and mandated the wearing of masks contrary to scientific findings and the professional assessment of the Robert Koch Institute. Regarding children, many experts even considered wearing masks to be harmful to their health right from the start.

In light of all this, the use of a swastika in conjunction with a mask as criticism of government orders may appear in a new light. If it is no longer possible to criticize government actions in an extreme way, what CJ Hopkins was warning against with his posts has come true, namely the rise of new totalitarian government structures and thus the loss of democratic values. If Der Spiegel and Stern, which were not particularly critical of the government during or after the Covid period, and have not made a serious effort to educate, can use swastikas on their covers unchallenged, the same must apply to critics of the government.

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Dr. Clivia von Dewitz is a German judge. Her doctorate thesis was on Nazi ideas and criminal law (§§ 86,86a and § 130 StGB).

This article is subject to the Creative Commons License (CC BY-NC-ND 4.0). It may be freely used by the general public for non-commercial purposes provided the author and the Berliner Zeitung are credited and that it is used unedited.

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