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Comment by Kristine1975 | Hacker News Reader

Kristine1975

"In a country under the rule of law, it is not up to the government to decide," Merkel said.

"Mutti" is trying to deflect the blame again: In this very special case (§103 StGB), the law mandates that the government authorize the prosecution. Otherwise there is no case.

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Here's the relevant law about deliberate defamation of foreign heads of state. (Up to five years in jail OR a fine.)

https://dejure.org/gesetze/StGB/103.html

Anyone know where the section is on the government required authorization of prosecution?

§ 104a StGB

Section 104a - Conditions for prosecution

Offenses under this chapter shall only be prosecuted if the Federal Republic of Germany maintains diplomatic relations with the other state, reciprocity is guaranteed and was also guaranteed at the time of the offense, a request to prosecute by the foreign government exists, and the Federal Government authorizes the prosecution.

Thanks to both you and germanier.

Article 103 appears to state that the insulted party must have been in Germany on official duty during the occurance of the insult.

Heads of state or members of the government on official duty. Since Erdogan is a head of state the requirement does not apply.

It needs to be parsed like this

Whosoever insults [a foreign head of state], or, [with respect to his position, a member of a foreign government who is in Germany in his official capacity], or [a head of a foreign diplomatic mission who is accredited in the Federal territory] shall be liable to imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years.

I don't suppose it say how big the fine must be? Could they fine the comedian 1 Deutschmark? That would make a pretty clear point that the Court wasn't impressed with the entire process...

Well the fine would be in Euro ;) Apart from the usual rules there is nothing specific about the fine in that law, no. They would need to fine him at least five days worth of income if I haven't missed something.

But a symbolic fine is really unlikely. Much more important than the amount fined is the label "guilty" or "not guilty". I can't see how they would rule him guilty but resort to a token fine in that case. If the court thinks the law should not be applied, they will find a reason not to.

I just quoted the entire provision (where the wording and length is absolutely standard for a German criminal law). There are no boxes which when ticked would result in an automatic conviction. The courts have a great degree of freedom to decide their cases. (Usually they base it on older decisions by higher courts which usually spell out what criteria should be used to interpret a law.)

Whoops! That's embarrassing, sorry about that...

I'm very interested in how this plays out.

How can Germany, an ostensibly free nation, have such a law?

If you can't insult political leaders, you don't have free speech. End of story. Political speech is the most important form of speech to protect.

You can actually insult political leaders all day long. Unlike less known persons, which can sue for defamation. There was even a case in Germany where someone argued for the assassination of a Politician, a clear crime, in other words, and acquitted at trial because the target was a public figure.

And even if you couldn't, insults on that level are absolutely unnecessary to discuss any issue.

> You can actually insult political leaders all day long.

Then why is there a prosecution moving forward for insulting a political leader and a specific law which applies only to insulting foreign political leaders?

Because 1) there is a special law against defamation of a foreign nation's representatives and 2) there is no specific exception written into any applicable law, but courts have consistently ruled this way because of freedom of speech etc

It is expected that there will be no punishment in this case.

You can insult political leaders. You can NOT insult FOREIGN political leaders.

I don't see how that makes it any more acceptable. Foreign political leaders are still public figures who clearly have an influence on the direction of public policy in your nation.

I don't see how a lot of things are acceptable. This is law. I choose not to have an opinion on it.

Not having an opinion about a matter is explicit support for the status quo.

> How can Germany, an ostensibly free nation, have such a law?

In Austria you be jailed for 6 months for ridiculing religious customs or leaders, or flags and symbols of foreign states...

The government may have the right to stop a complaint regarding this law, but that doesn't mean that there is no moral obligation for the government to not stand in the way of law.

She's not deflecting blame. For one thing, it's not Merkel that made the decision. Secondly, the blame would have been less if the government stopped the complaint. That would have been the easy way out.

> but that doesn't mean that there is no moral obligation for the government to not stand in the way of law.

My eyes keep glazing over... can you reword without the triple negative?

It is clearly Merkel who made the decision. The law requires approval at that level, she is the one who announced the decision, the buck stops with her.

This is really terrible news for Germany and the EU as a whole. Merkel has said "this is a bad law and we have the option to ignore it, but we will prosecute anyway". Who rules Germany now, exactly? Is it Merkel or is it Erdogan? And if it's the latter, which is what it looks like, then how much influence does Turkey have over the EU as a whole?

You obsess over singular persons having power to do something. But in reality, Merkel is not at all free to decide this issue. For that matter, the government as a whole is not free to decide this issue, regardless where "the buck" stops.

Nor is Erdogan calling any shots, because he is only using an option that German law provides to any organ of a foreign state. To any Human Being actually, considering that there are cases of personal defamation pending.

Nothing special about Erdogan, except that he is exerting that option rather spectacularly to his own detriment.

The sad thing about this issue is that obviously a lot of people don't bother to appreciate the complexity of the issue and want to frame it as a question of who is in power and who is calling the shots.

If you don't want to be ruled by dictators, start recognizing law and institutions at work, rather than attributing everything that happens to the power and will of singular persons.

^^^^^ This. This should be restated at the root level so everyone could see it.

Most people seem to focus on the political side of this whole affair, but at the same time it is clearly a legal case as well (and a rather interesting one) with hundreds of pending legal complaints

I would point out that the German government explicitly is free to decide whether or not prosecution continues. I don't think it's a good idea that this is the case, but it is.

I tried without "triple negation". Doesn't work as well. There is a moral obligation for the government to honor that law, but that in turn doesn't mean they have to give permission or that they don't have permission. Yes, the issue is that complicated.

StGB §104a explicitly states that the German Federal Government has to consent to any prosecution under StGB §103 (the "libel against foreign head of state" paragraph of the law). §103/104 is very special in that regard.

So yes, the government had to give explicit permission to prosecute in this particular case.

The gov't could have honored the law by just saying "we don't consent to the prosecution", they did not however, and Merkel as the head of the government has the responsibility for that decision; whether you agree with the decision to prosecute or not.

PS: German media is reporting that according to Steinmeier, German Foreign Secretary, the cabinet had a tie when voting on prosecution or not, with Merkel's vote breaking the tie in favor or prosecution.

The government has a moral obligation to consider the request and saying "we don't consent" does not satisfy the obligation.

Another important consideration is that exercising the right to deny the prosecution would have taken away power from the judiciary. Germany is in the process of making this point to Poland and Hungary, where the independence of the judiciary is under attack. A denial would have weakened that argument a lot.

Just no. The laws/paragraphs in question are special in that they explicitly state the German government has to allow the any prosecution under that law/paragraph.

Of course the gov't has a moral and also legal obligation to consider the request, consideration does not imply they have to follow the request.

If the government made a new law requiring gov't consent before prosecutions or if they tried to hinder a prosecution under any existing law not having such a "government must consent" paragraph, then you might have a point; here however, you do not.

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