“Fascism is a lie told by bullies.”
Ernest Hemingway
Every country has its own history. In the history of every nation there are episodes its people take pride in, immortalized in metal and stone, celebrated in odes by national poets, and destined to inspire many generations to come who identify with that nation. Yet it’s hard to imagine a country whose history consists solely of glorious victories. In the fate of every state, as in the fate of every individual, there are periods that evoke, sadly, regret and bitterness. When it comes to Germany, no one has any doubt which pages of the country’s history fall into that category…
Germany has some of the strictest laws anywhere banning the use — and, even more so, the distribution — of any Nazi symbols. The swastika and other SS insignia, in particular, count among the symbols of unconstitutional organizations. By law, their public display and sale are prohibited. The same applies to Nazi salutes and slogans. Even though Germany’s Basic Law guarantees the right to freedom of speech, the law takes an extremely strict approach toward anyone inciting hatred or displaying unconstitutional symbols. Displaying Nazi symbols in Germany can carry a penalty of up to three years’ imprisonment or a substantial fine. If the display of such symbols, or a statement, incites hatred against specific nationalities or religions, offenders can face up to five years in prison. Holocaust denial is also a criminal offense in Germany. This prohibition is set out in §86a of the German Criminal Code (German: Strafgesetzbuch). Known as the provision “on the use of symbols of unconstitutional organizations” (German: Verwenden von Kennzeichen verfassungswidriger Organisationen), it is, de facto, the principal statutory provision banning the use of Nazi symbols — flags and emblems of the Third Reich, the insignia of its main organizations, uniforms, slogans, and forms of salute.
Naturally, such strict rules apply not only to German citizens but also to foreigners temporarily residing in the country, as well as tourists. This is hardly surprising — every foreigner who comes to Germany is expected to respect and abide by its laws and customs. Misunderstandings do happen, however, as a result of which even an innocent person can mistakenly find themselves facing prosecution. In such cases, only timely help from a professional lawyer can sort matters out in time and prevent an unjust punishment. In this article, we describe one such interesting case from our own legal practice, in which we were able to help a young man — visiting Germany for a month to stay with a friend — avoid getting caught up in a difficult situation that carried the risk of criminal punishment.
Client Story: A Month Visiting an Old School Friend
A young man — let’s call him Mark — permanently resided in St. Petersburg. He had recently graduated from a technical university and was not yet burdened by either family ties or a job. There were, in principle, real prospects of finding work in his field back home, but he was in no hurry to pursue them. Getting by on occasional freelance earnings and money “borrowed” from his parents, he was enjoying his youth and trying to make the most of every day. In the last month of summer, Mark was invited to visit by an old school friend — let’s call him Vitaly — who had been living in Berlin for some time. Vitaly promised him a private room, a fully stocked fridge, and plenty of parties and fun. Without giving it much thought, Mark agreed. He already had a valid Schengen visa, there wasn’t much to do in St. Petersburg in the August heat, and the one company that had offered him a job wasn’t expecting him to start until mid-September. So the young man bought a ticket for the next available flight and, with a light heart, headed from the northern capital of Russia to the capital of Germany.
The first two weeks in Berlin were a resounding success. Our future client walked almost the entire city on foot, visited every well-known sight, and even managed a quick trip to Dresden and Leipzig. He also got to know Vitaly’s friends, mostly Russian-speaking guys who had moved to Germany from the former USSR. The young men liked to get together in the evenings, share a bottle or two of beer, sing songs to a guitar, and chat about life. One such gathering nearly proved fateful for our unlucky tourist.
A Shout in the Courtyard and the Neighbors’ Mistake
One evening, a group of about ten Russian-speaking young men were sitting in the courtyard of the building, drinking beer, joking around, and discussing the latest news. At the height of the merriment, an elderly neighboring couple walked past and politely greeted the young men. In response to the greeting, one of the guys, apparently getting carried away, shouted “Sieg Heil!” (German for “Hail victory!”) — a phrase that had served as a traditional greeting in Nazi Germany. Unfortunately, the decent citizens decided not to let this ill-judged “joke” go unpunished and were determined to see the culprit punished at any cost — and rightly so, since such “jokes” are not only offensive but also prohibited and punishable under §86a of the German Criminal Code.
As luck would have it, another elderly neighbor happened to be watching from an open window at the time, and later corroborated the elderly couple’s account when they went to the police. On the whole, the citizens who filed the complaint with the police were right about almost everything — except for one crucial detail. They could not say for certain which of the young men had shouted the greeting, even though they clearly heard that it had come from someone in the group Mark was part of. The neighbor who had also heard the phrase, banned in Germany, had already been keeping an eye on the “new” young man for some time. It was she who suggested that our future client must have been the one who had done it. Without delving further into the details, the aggrieved parties filed a report with the police, naming the young visitor as the offender. Upon learning of the unfounded accusation against him — which carried a potential sentence of up to three years’ imprisonment — Mark turned to our firm for legal help.
The Lawyer’s Work: Witnesses, Questioning the Complainants, and the Presumption of Innocence
Our firm’s lawyer, who specializes in criminal law matters, immediately got to work and requested the relevant case file from the police. Ahead of preparing for the trial hearing to secure our client’s acquittal, he interviewed everyone who had witnessed the incident. As expected, all of them unanimously confirmed that it wasn’t Mark who had shouted the fascist greeting. At the trial hearing, attended by both the elderly couple who had filed the police report and the neighbor who had suggested our client was the culprit, the lawyer questioned the complainants and witnesses in the case. As a result, none of those present could confirm that the offender’s voice was our client’s.
On behalf of the client, our lawyer prepared a petition to discontinue the criminal case for lack of sufficient grounds, specifically noting that our client was not the person who committed the act. As is well known, German criminal-law doctrine follows the principle of the “presumption of innocence,” meaning that a person is presumed innocent until their guilt for the offense has been proven through the procedure prescribed by law and established by a final court judgment. This also means that “the burden of proving criminal guilt rests on the prosecution.”
Outcome: Acquittal and Reimbursement of Legal Costs
For this reason, the court in our client’s case had no grounds to hand down a conviction, since the fact that the accused had committed the offense had never been proven. To the unqualified relief of both the young man and our firm’s lawyer, the court handed down an acquittal, and the criminal case was closed. What’s more, Mark was reimbursed for his legal costs — that is, the money he had spent on his lawyer.
Conclusion
We could only wish the young man good luck in all his future plans and endeavors. Every one of our readers surely knows that youth is the energy of life — a time when a person is full of ambition, when any goal seems achievable and any task within reach. Youth is one of life’s most precious and most difficult stages. Unfortunately, a single unfortunate misunderstanding can wreck many far-reaching plans. That is why it is so important to be “in the right place at the right time” — and, if something does go wrong, to call on a professional lawyer for help without delay.
All rights reserved. Copying or republishing this article requires a link to the original source.
