F . to Dept of Immigration     received from: .     Deckert is a righton 20-APR

FAIM283

O.B02810 2018 19.04.94 CLA Foreign First

To.

PP Canberra/Brussels/

Fm. Bonn/FA

 

I n  c o n f i d e n c e

David John Irving: German conviction

From file 801/5/2

For DFAT, DIEA (Litigation, Vic and ORS) and AG's

Telcon Schoneveld/Silva and fax Leerdam/Schoneveld refer. Following is the additional information we have been able to obtain relevant to Irving's status in Germany.

Conviction

2. We spoke to Brettraeger (Munich district administration foreigners office) who confirmed that the Bavarian supreme court (Bayrisches Oberlandsgericht) dismissed Irving's appeal against conviction on 30 November 1993 as 'without basis'. She understood that this exhausted his avenues of appeal.

3. We note that the Munich expulsion order of 9 november 1993 refers to Irving's lawyers having lodged at that time an appeal against the conviction with the Federal Court of Justice (BGH, Bundesgerichtshof) this appears not to have been pursued. German lawyers may be able to provide more detailed information on (1) whether this case could have been considered by the Bundesgerichtshof and (2) under what circumstances Irving might also have recourse to the constitutional court. Our impression is that for all practical purposes, the conviction can be regarded as final.

4. We have been unable to reach the relevant courts to obtain a copy of the judgments as requested in telcon. Subject to your cabled instructions, we will try to make contact with these courts tomorrow and encourage them to provide us with case numbers and, if feasible, the text of the decisions as promptly as possible.

Expulsion order

5. Brettraeger initially provided us with a copy of the expulsion order only after consultation with her supervisors and, we understand, on the basis of comity. You should note that this is not/not a public document, but an administrative order more akin to a writ served on an individual. We have forwarded it diea (v. Sutton) and will do likewise to brussels. Due to germany's strict privacy legislation, however, we are not able to forward it direct to a private german lawyer without further consultation.

Deckert case

6. The federal justice ministry advised us that the text of the judgment in the controversial Deckert case will not be available until the middle of next week at the earliest. In the meantime, we hope the following points are of some use: Deckert is a rightwing activist convicted in the Hessen state court (Mannheim) of racial vilification, incitement to racial hatred, slander and 'defamation of the memory of the dead' and sentenced to one year's probation in lieu of imprisonment. (NB. The charge of 'slander concomitant with disparagement of the memory of the dead' which appears in fax Schoneveld/Curschmman, is the same as our translation of 'defamation...')

The appeal decision of the BGH did not/not overturn the decision, but referred it back to the Hessen state court for reconsideration

According to the Federal justice minister Leutheusser-Schnarrenberger the BGH appears to have found that the state court did not give sufficient attention to the facts and law surrounding the case.

According to press reports, the BGH found that denial of the murder of Jews in nazi concentration camps was a proven lie (thus depriving Deckert and similar persons any chance to present argument to the contrary in future court hearings), but that this lie alone did not suffice to constitute the specific offence of racial vilification. Ie, Deckert's statements did not automatically amount to an attack on the Jewish population in Germany - in this context, there needed to be a sufficient nexus with nationalist-socialist racist ideology.

This apparent requirement for a 'nexus' has created concern because (1) denial of Auschwitz has to date been seen as an integral part of nazi racism and (2) there is confusion as to what additional evidence will be required to establish such a link.

The case has thus caused considerable controversy in Germany as possibly signalling a judicial watering-down of the current legislation.

We will have to await a closer examination of the decision before being able to determine whether and to what extent it in fact qualifies the circumstances in which denial of Auschwitz is a punishable offence. There have been calls across the board to introduce new legislation specifically criminalising such propaganda if this is the effect of the decision.

But there are some suggestions that the BGH decision is primarily focussed on the state court's poor reasoning. State prosecutor Bruns (while emphasising that he considered the link between the denial of Auschwitz and nationalist-socialist racist ideology as proven) conceded that the state court had failed to specify exactly which statements constituted which offence. Diplomatic colleagues have also mentioned to us that at least part of the problem appears to have been in the court's sloppy argumentation.

Xc. O.b02810 2018 19.04.94
Cm. Js

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