INFORMATION ONLY

TO DEPARTMENT OF IMMIGRATION RECEIVED FROM : . IT CONFIRMS THAT TON 26-APR

FAIM 831

O.B02846 1533 22/04/94 CLA Foreign first

TO.

PP CANBERRA/BRUSSELS/
FM. BONN/ FA REF O.B02810

 

I N    C O N F I D E N C E

DAVID JOHN IRVING: GERMAN COURTS AND NAZI LIES

FOR DFAT, DIEA AND AG'S

Telcon Silva/Leerdam (litigation, DIEA) refers

The controversial federal court judgment in the Deckert case, referred to in reftel, was published in written form on 21 April, a little earlier than expected, under the file no. Az: 1. Str 179/93. We are faxing the text in German to you for your consideration.

2. Following are some of the main points to emerge from the decision, as portrayed in the press:

• it confirms that there is no carte-blanche for denial that Auschwitz took place
• the federal court found that the state court had not sufficiently explained how the criteria for offence of 'racial vilification' had been met in the Deckert case
• the criminal code requires that the court be satisfied there was an 'attack on human dignity'
• injuring one person's honour is not enough to satisfy this; rather, it must be evident that the person concerned was treated as 'being of lesser value' - and this is would be more likely the case where the perpetrator can be shown to have identified himself with nationalist-socialist racist ideology
• an assertion that Jews have used the 'Auschwitz lie' as blackmail for compensation would constitute such an attack on human dignity. The mere denial of gas chamber murders, on the other hand, is not enough to constitute racial vilification.

3. Press comment states that the state court must now determine what

Deckert's purpose and attitude (in the context of interpreting and commenting on Leuchtner's presentation) was, and in doing so, it may take into account the basic attitudes of the audience, particular gestures on Deckert's part, the emphasis placed on particular passages through tone or volume, and his accompanying commentary.

4. In relation to the charge of defaming the memory of the dead

(which is what Irving was convicted of in Munich), the court appears to have assumed that the mere denial of Auschwitz is sufficient to satisfy this particular offence. In this context (and it is suggested, inconsistently with the criterion as it applies to racial vilification), the circumstances of a person's death is directly relevant to his or her dignity - denying the existence of Auschwitz or ridiculing the number of victims would be a most serious violation on the dignity of a victim.

Comment

5. By way of preliminary comment, although the court appears to have taken a legalistic interpretation of 'human dignity' as it applies to determining the more serious offence of racial vilification, there is an implication that mere denial of Auschwitz will suffice to secure a conviction for 'defamation of the memory of the dead'. Subject to your views after more detailed study of the judgment, we are inclined to think that the federal court's judgment in Deckert is now even less likely to support a challenge by Irving and his lawyers against the Bavarian conviction for defamation.

Xc. O.B02846 1533 22.04.94

cm.

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