Internet platform for studying Xenophobia, Radicalism and Problems of Intercultural communication.

Application of Legislation, Criminal Cases, Court Rulings

Application of Legislation, Criminal Cases, Court Rulings

In general, this legislation in observed. To improve the effectiveness of German anti-discrimination legislation, an Anti-Discrimination Agency has been established in accordance with the Equal Treatment Act. The Agency is an independent organisation that provides assistance for the victims of discrimination.

It assists persons who have been subjected in their daily life to racist or anti-Semitic attacks, or subjected to discrimination on the grounds of nationality, ethnic origin, disability, etc.

In 2014, Germany adopted a Human Rights Action Plan for 2014-2016, which provides for extensive measures of combatting racism, xenophobia, discrimination and supporting the rights of migrants and refugees.

On July 9, parliament of North Rhine-Westphalia decided to implement a special account of crimes motivated by Islamophobia. Until now, special statistical data was only available for anti-Semitic and homophobic incidents.

Federal Bureau for the Protection of the Constitution organised two permanent exhibitions dedicated to right wing extremism, annually attended by 100 000 people. In 2011, a hotline was set up for victims of extreme right activists or threatened by them.

In 2012, police and special services established a Reaction Centre against Right Wing Extremism and Terrorism.

NDP Leader in Frankfurt was dismissed in May after his extreme right-wing political views came to light. His subsequent appeal was not supported by court. Detection of hate crime in Germany is at approximately 60%.

European Commission Against Racism and Intolerance published a report on Germany in February 2014, where it commended its authorities for their efforts in combatting xenophobia. However, ECRI criticised German law enforcement of excessively focusing on organised extreme right forces, while other forms of racism and discrimination remain unnoticed in Germany. In particular, ECRI pointed to anti-Semitic statements in the Muslims circles and multiple cases of homophobia in public.

Currently, incitement to hatred is punished only if it poses a threat to public order. However, this is often hard to prove. This leads to “impunity” that must be eliminated. Nevertheless, German authorities are being very active in curbing racism in its roots – particularly after the exposure of an underground neo-Nazi group in 2011. More attention is thus paid to prevent propaganda of racism online. In spring 2013, Federal Criminal Police Service shut down the largest German online forum Thiazi-Net, and its founders were brought on charges of “creation of a criminal group” and “incitement of hatred between peoples”. Investigations in this regard were also held in the army in 2012-2013. In addition, authorities (especially in federal states) started focusing on the prevention of hate crime and to this end are actively cooperating with civil society organisations whose activities are aimed at combatting radical nationalism.

Currently Germany has a large number of NGOs aimed against neo-Nazism. Some of them work in education, others monitor manifestations of anti-Semitism online, etc. Most notably, ethno-racial profiling is implicitly present in the German Federal Police Act and may de facto lead to racial discrimination, especially considering the arbitrariness of the criteria that involve notions such as “feel for a certain situation” or “the persons’ external appearance”.

A brutal example of police violence occurred this spring in Hanover, where a 39-year-old police officer allegedly abused two migrants, force-feeding rotten pork to one of them. In reaction to this case, the Council of Europe’s human rights commissioner, Nils Muizneks, explicitly pointed to the existence of institutional racism in Germany. Although there was no government response to this criticism at the legislative level, the officials nevertheless took preventive measures against the further escalation of violence. According to Wolfgang Brandt, the representative of the Ministry of the Interior of Brandenburg, the police work closely with federal migration authorities to "facilitate the integration of asylum seekers in local municipalities" and "are on high alert to identify, assess and combat racist crime".

After the discovery of the National-Socialist Underground in Germany in 2011, and particularly following its trial in 2013, German police started paying more attention to extreme right-wing groups.

Increased hate crime and frequent attacks on refugee centres (more than 200 in 2014) have prompted German authorities to reinforce the security of such institutions. In the first months of 2015, German police conducted raids across the country and arrested four men who were planning attacks on mosques and refugee housing centres. Police say that the suspects were affiliated with a recently established right-wing extremist group that calls itself the Old School Society. The four suspects had purchased explosives with the plan to carry out terrorist attacks, police said .

In 2017, almost four-year process ended, connected with an attempt to ban the National Democratic Party of Germany (NPD) as a neo-Nazi and right-wing extremist party. In January, the Constitutional Court of the Federal Republic of Germany decided to deny the lawsuit of the federal states banning the NPD. In its verdict, numbering about 300 pages, the judges concluded that the activities of the NPD contradict the Basic Law of Germany, and its rhetoric contains parallels with the National Socialists.

But at the same time, according to the court, the party does not bear the immediate threat of democracy, because it operates exclusively at the level of proclamations. According to the court, no confirmation was provided that the NPD is taking, or is willing to take, any measures to implement its rhetoric. There is no trace of how this could be done. In other words, the judges, in accordance with the German laws, which established traditionally high barriers to the banning of parties, recognized the NPD as an insignificant political force.

Specialists (experts in the field of combating right-wing extremism, lawyers, politicians), in general, approved the court's verdict. An important unofficial argument was voiced on the sidelines: it is more convenient for special services to control radicals when they have a formalized representation of interests. In the event of a ban on the NPD, the extremists would go underground. Despite this, there were voices of objection and bewilderment in social networks. Internet users, in particular in the German-speaking segment of the Facebook social network, wrote that the NPD, with its racist and misanthropic propaganda, is poisoning the public climate in Germany, so it would be advisable to ban it, even if the party does not have the opportunity to implement its right-wing extremist program in practice.

At the end of November 2020. The federal government published a new plan to fight right-wing extremism and racism. More than one billion euros will be allocated for the period 2021-2024 to combat these manifestations. A separate sum of 150 million euros will be added to the 2021 budget line. Four main directions of work have been found appropriate:

  • Increasing of public consciousness, strengthening of interaction between state structures and NGOs.
  • Preventive measures.
  • Expansion of assistance to victims.
  • Recognition of successes of members of society with a migration background.

he plan consists of 89 different activities, both aimed at combating specific phenomena such as antigypsyism, racism, anti-Semitism and others, and in the form of specific programs (educational, aimed at the integration and increased representation in public service of people with a migration background, youth, increasing media competence, etc.). The plan determines the ministries and agencies responsible for the implementation of individual measures.

The federal government is quite active in combating extremist symbols. In doing so, the authorities rely on the corresponding articles in the Criminal Code of Germany - art. 86, 86a - "Dissemination of propaganda materials and use of symbols or signs of anti-constitutional organizations" as well as art. 130 - incitement of ethnic hatred. In addition, the executive branch is competent to issue a list of prohibited "anti-constitutional symbols," usually related to the period of National Socialism, but which also includes the symbols of contemporary extremist organizations. Lists exist at both the federal and state level, and are constantly updated.

For example, the "Imperial Military Flag" (the flag of the armed forces of the German Empire until 1921) was not officially banned until recently. Extreme right-wingers use it at demonstrations as a symbol of commitment to their ideology, for fear of displaying "Third Reich" flags, swastikas or SS runes, for which immediate punishment follows. In the fall of 2020, the process of banning this symbol as well began, including as a reaction to its mass appearance in 2019-2020 and the symbolic "storming of the Reichstag" carried out in August 2020 on the steps of the Reichstag building by supporters of extreme right-wing movements in protest of the restrictions due to the COVID-19 epidemic. In Bremen, the "Imperial Flag" has already been declared unconstitutional, and Berlin is next in line. Voices are being heard in favor of a federal-wide ban. This demand is supported by a number of German historians. The obstacle to the immediate banning of the flag is that it exists in various variations, with slight changes in the color scheme and the Iron Cross. All possible variations should be spelled out in law. At the same time, some members of state parliaments do not see the Imperial Flag as an obvious right-wing extremist symbol and believe that even "dubious expression" is part of democratic pluralism.

In addition to right-wing symbols and organizations, Islamist associations and symbols are banned. The constitutional protection office (Bundesverfassungsschutz, BfV) informs about this on its website. The last ban was issued in March 2020 against Hizbollah. The state agencies publish brochures explaining what Islamism is, its methods, the difference between the world religion Islam and extremism and "political Islam." Separate information is directed at Muslim youth in order to prevent them from being drawn into Islamist structures, such as Salafists, who often show themselves, allegedly, as a special Islamic youth subculture (North Rhine-Westphalia Interior Ministry website).

An important step was the creation by the Federal Criminal Offence Agency (Bundeskriminalamt, BKA) in November 2019 of a single unit to combat Islamist terrorism, based on the existing two working groups. By the end of 2020, BKA personnel received an additional 1,000 positions in their staff, some of which are reserved for the unit. Since its establishment, the unit has kept the public informed (to the extent possible) of its activities through press releases and media interviews.

German courts are quite effective in the area of explicit discrimination, which is clearly covered by anti-discrimination law. In November 2020, the verdict of the Constitutional Court of the Federal Republic of Germany received a great deal of media coverage. An employee of a private company was fired for making a racist attack on a black colleague. The dismissed employee alternately lost his lawsuit in various courts in Cologne and in the High Labor Court. The Constitutional Court upheld the legality of the dismissal, stating that the reference to the constitutional right to freedom of opinion in this case was unfounded: the plaintiff had violated fundamental individual rights. (AZ 1 BvR 2727/19B). A trial in the Augsburg Administrative Court concluded in December 2019. The landlord had indicated in a newspaper advertisement that he would provide the apartment "only to a German." The prospective tenant, a native of Burkina Faso, was explicitly rejected by telephone due to his foreign origin, and sued. The defendant tried to argue his reluctance to rent to people of foreign descent by personal experience. According to him, a drug dealer with Turkish roots had previously lived in the house, causing discomfort to other residents. The judge found the defendant's arguments illegitimate. He emphasized that the propensity to commit crimes could in no way be linked to ethnicity and, referring to the inadmissibility of discrimination on racial and ethnic grounds, awarded the defendant compensation of €1,000 (AZ 20 C 2566/19).

Courts have also been active in countering organizations and groups that disseminate hateful ideology and pose a danger to the democratic order of the Federal Republic of Germany. In December 2019, for example, the German branch of the right-wing extremist group Combat 18, based in the United Kingdom, was banned. Lawyers for the group filed a lawsuit against the German Interior Ministry. In September 2020. The Supreme Administrative Court ruled that the ban was valid. Combat 18 expresses a commitment to National Socialism ideology and distributes hateful printed materials. The group is closely associated with neo-Nazi music groups. Its name itself shows sympathy for Adolf Hitler (AZ 6 VR 1.20).

Equally important is the decision of a Berlin court allowing the Constitutional Protection Office to label the "Identity Movement" as a right-wing extremist movement. It is an international right-wing radical network, originally originating in Great Britain. The particular danger of the "Identitarianists" lies in their "pseudo-intellectual" image. "The movement positions itself as a supposedly legitimate defender of the ethnic majority in European states on the basis of the theory of "identitarianism," against the "threat" posed by Islam. In June 2020, despite ostensibly peaceful forms of protest, a court found the movement to be right-wing extremist. The main argument: not only is the ideology of the "identitarians" racist, but their calls for "racial purity" and the recognition of members of certain ethnic groups as "second-class people" may well encourage the movement's supporters to engage in violence. (AZ 1 L 188/20).

The following decision in the area of labor law is also of great importance. A civil servant of the Bundeswehr (working profession) was a member of a right-wing extremist group. He regularly expressed his commitment to an ultra-right-wing worldview and posted relevant messages on social media. In December 2018. The German Ministry of Defense terminated the contract of its employee on this basis. In July 2019, the Berlin labor court ruled that the termination was lawful. In the specific case, due to the fact that the employee had worked in the position for over 30 years and belonged to an older age group, the court found it necessary to apply the transitional period rule before the termination decision became legally enforceable. As a practical matter, this allowed the former employee to receive higher payments over a longer period of time than in the case of immediate dismissal, but the very fact that the court agreed to dismiss the employee from the government agency because of his right-wing beliefs is significant. (AZ 60 Ca 455/19). A similar verdict was rendered in October 2018 by the Hesse Administrative Court against a probationary police officer (AZ I B 1594/18), but the decision regarding a civil servant in a public entity with a significant public function (the army of a democratic state) has more practical significance.

Another court decision must be cited, although it falls outside the time period in question in terms of date. In May 2017, the Landgericht Berlin ruled that the closing of a bank account and the cancellation of a credit card that regularly received donations from right-wing extremist activists was in accordance with the law. The spouse of the account holder was a former lawyer, a neo-Nazi activist who had been prosecuted for inciting ethnic hatred. The funds in the account were used to organize an escape from prison (AZ 37 S 103/17).

One of the preventive measures against Islamist terrorism used in Germany is the forced deportation of persons deemed potentially dangerous for whom there is strong evidence of links to terrorist organizations. In order to simplify the control of deportees in Germany, they are placed in solitary confinement in an ordinary prison. A Tunisian national was under the surveillance of the German intelligence services, which found that he was recruiting people for Islamist organizations, including the Islamic State, for the war in Syria on the side of the Islamists, and was involved in the illegal transfer of potentially dangerous persons to German territory. A decision was made to deport him, which was carried out in 2018. He was ordered by a court in Frankfurt am Main to be placed in a regular prison facility before being flown out of the country. He filed a complaint against this action in various German courts. The Supreme Court of the Federal Republic of Germany asked the European Court of Justice to clarify the legal situation. In its verdict, announced in July 2020, the Court found that such persons could be imprisoned because they posed a tangible threat to national security. With connections to like-minded people, experience and skills, they can escape from an inadequately adapted temporary detention facility. It has been found necessary to place such persons in isolation from other prisoners, but not necessarily in the standard detention center for deportees, which holds foreign nationals who, for example, have violated the conditions of stay in Germany and refused to leave it voluntarily (illegal entry, expired visa, illegal labor activity, etc.).

The measure of danger in this case is disproportionate. This decision was welcomed by German experts. Daniel Thum, Professor of Refugee and Migration Law in Konstanz, noted that the court could have handed down a different verdict, which would have severely limited the practice of guaranteed deportation of dangerous Islamists: "The European Court showed its willingness to give EU countries some room. The wording of the instructions on deportation from the EU could have prompted a different decision. However, we are observing the tendency of the European Court of Justice to impose sentences compatible with the security and law and order interests of states."

Until 2020, 400 million euros have been budgeted for preventive measures to stop extremism through educational tools, i.e., outside the scope of special services. Since 2016. The German Federal Ministry of the Interior has been implementing the National Preventive Program against Islamist extremism. In March 2017, in response to the terrorist attack at the Berlin Christmas fair, the program was expanded and supplemented. Here are its main points:

  1. Working at the municipal level, ending with small localities.
  2. Working with families and the social environment, including NGOs and migrant associations.
  3. Work in mosques, houses of worship and religious communities.
  4. Work in the educational sphere, including schools.
  5. Work on the Internet, including in social networks.
  6. Risk assessment.
  7. Collaboration inside and outside the EU.

Separately, 100 million euros were allocated for this program in 2018. It has been extended. In the response of the Federal Government to the request of the Alternative for Nermany faction in the Bundestag, the measures as of the beginning of 2018 were listed in detail. Individual NPOs at the regional level are involved in the program, publishing reports on the measures and making suggestions for improvement on an ongoing basis. Other programs, such as "Participate in Democracy," are not "classic" anti-Islamic programs, but rather focus on supporting migrants in general, but they touch on this issue as well. Participate in Democracy!" has 14 centers across the country, some of which deal with Islamism.

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