Revising section 130 of the Criminal Code in accordance with the EU framework decision

In 2010 a group of experts took part in a discussion on the implementation of the EU Framework Decision on Combating Racism and Xenophobia, at the German Police University. You can find a summary here (German).

In Germany, the framework decision of the Council of the European Union was implemented in 2010. In order to do so, it was necessary to change the wording of section 130 of the Criminal Code (StGB). According to the original version of section 130 subsection 1, ‘whosoever, in a manner that is capable of disturbing the public peace, incites hatred against segments of the population or calls for violent or arbitrary measures against them’ is guilty of an offence. The law also makes it a crime to ‘assault[...] the human dignity of others by insulting, maliciously maligning, or defaming segments of the population’.

Nevertheless, section 130 subsection 1 of the Criminal Code only explicitly refers to ‘segments of the population’, but not to individual persons. The framework decision, on the other hand, demands that the relevant penal provisions cover the incitement to hatred and violence towards individual members of groups as well, rather than simply towards the groups as a whole.

The new version of section 130 subsection 1, and subsection 2 paragraph 1, of the Criminal Code has been phrased as follows:

Subsection 1:

‘(1) Whosoever, in a manner that is capable of disturbing the public peace,

‘1. incites hatred against a national, racial or religious group; against a group characterised by its ethnic origin; against segments of the population or against an individual on the basis of his belonging to any of the abovementioned groups or to a segment of the population or calls for violent or arbitrary measures against them, or

‘2. assaults the human dignity of others by insulting, maliciously maligning, or defaming any of the abovementioned groups, segments of the population or an individual on the basis of his belonging to any of the abovementioned groups or to a segment of the population,

‘shall be liable to imprisonment for three months to five years.’

Subsection 2 paragraph 1 has been changed as follows:

‘Whosoever,

‘1. with respect to written materials (s. 11 (3)) which incite hatred against any of the abovementioned groups, against segments of the population or against an individual on the basis of his belonging to any of the abovementioned groups or to a segment of the population, or call for violent or arbitrary measures against them or assault their human dignity by insulting, maliciously maligning, or defaming them,

‘(a) disseminates such written materials;

‘(b) publicly displays, posts, presents or otherwise makes them accessible;

‘(c) offers, supplies or makes them accessible to a person under eighteen years of age or

‘(d)  produces, obtains, supplies, stocks, offers, announces, commends or undertakes to import or export them, in order to use them or copies obtained from them within the meaning of subparagraphs (a) to (c) or facilitate such use by another; or [...]’

© Büro zur Umsetzung von Gleichbehandlung e.V. 2011