FILE

ATTORNEY-GENERAL'S
             DEPARTMENT

        Australia

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Legal Counsel (Europe)

TO: Dr Jan Curschmann / Dr Hago Wandschneider
       Curschrnann, Schubel & Paxtner

FAX: 0049 / 40-33 86 97

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FROM Frank Schoneveld
Legal Counsel (Europe), Brussels

TEL.               +32 2 230 21 88 FAX. +32 2 230 17 63

DATE 19 April 1994 Page(s) including this page: I

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Dear Jan,

Re: David Irving

Further to our telephone conversation of this morning, please find set out below the facts, as I understand them, followed by the questions for which I need an answer by tomorrow afternoon.

 

A. The Facts

1. David Irving has apparently made certain statements concerning gas chambers and their use in Europe during the second world war. As a result of these statements the German authorities have, in respect of Irving:

• issued an "entry ban" in 1990,

• made an "expulsion order" on 9 November 1993.

2. Irving has also been convicted under section 189 of the German Criminal Code for "defaming the memory of the dead". This conviction was appealed to the Supreme State Court of Bavaria which, on 30 November 1993, dismissed the appeal. Irving has stated in an affidavit that "this conviction has no force in German law as it is under valid appeal which was lodged on the 4th January, 1994."

3. Irving applied some time ago for a visa to enter Australia. The Australian Minister for Immigration rejected the application, as I understand it, partly on the basis of the conviction in Germany. Approximately seven months ago the Australian Federal Court ordered that the Australian Minister for Immigration reconsider the application of Irving for a visa to enter Australia.

4. So that the Minister for Immigration can properly consider Irving's visa application certain facts regarding the status of Irving's conviction in Germany need to be established.

B. Questions

5. Assuming that Irving's appeal against conviction under section 189 of the German Criminal Code was dismissed by the Supreme State Court of Bavaria on 30 November 1993, what, if any, is the next avenue of appeal from this Court available to Irving?

6. Unfortunately, I do not have a copy of the decision on appeal of the Supreme State Court of Bavaria of 30 November 1993. I am attempting to obtain a copy, but could you also do whatever you can to obtain a copy of the decision if it is necessary to answer the above question?

7. The second question concerns the status under German law of Irving's conviction. Given that Irving has lodged some sort of appeal from the decision of the Supreme State Court of Bavaria ef 30 November 1993, what is the status of Irving's conviction? Does the conviction of Irving continue to stand in German law if an appeal has been lodged from the decision of the Supreme State Court of Bavaria?

8. Another case which might have an impact on Irving's conviction in Germany concerns a decision of 15 March 1994 of the Federal Court of Justice. In that decision, as I understand it, the Court ordered the re-trial of Günter Deckert, head of the National Democratic Party, in relation to his conviction for "slander concomitant with disparagement of the memory of the dead." It appears that the German Federal Court of Justice has found that "it was not enough to deny the gas chambers" and that "there had to be a clear nazi motivation and accompanying nazi ideological sentiment" If this were true, this decision may have an impact on the likely outcome of any appeal lodged by Irving with the Federal Court of Justice.

9. Would you please advise whether the matters as set out in the above paragraph 8 are correct? If so, what, if any, implications has this for Irving?

10. Mr Jim Silva at the Australian Embassy in Bonn is attempting to find out the Case number and, if possible, will obtain a copy, of the decision of the Federal Court of Justice in the Deckert case. However, it may be difficult to do this, so could you please do whatever you can to obtain this information through your own sources?

11. As I have already mentioned, there is considerable urgency in obtaining your advice and I would need, to the extent that it is possible, your advice by tomorrow afternoon, Wednesday 20 April.

Thank you for your prompt consideration of this matter. I look forward to receiving your advice tomorrow.

Kind regards,

Yours sincerely,

Frank Schoneveld
Legal Counsel (Europe)