Curschmann, Schubel & Partner
Rechtsanwälte

 

Per Telefax Nr. 0032 2 230 17 63

 

Australian Embassy
and Mission to the E.C.
Attorney General's Department
Att. Frank Schöneveld

 B-l040 Brussels                        Hamburg, den 20.04.94

Re: David Irving

Dear Mr. Schöneveld,

The questions contained in your telefax of April 19, 1994, can be answered as follows:

1. You informed us that Irving has been convicted under section 189 of the German Criminal Code for "Defaming the memory of the dead". This conviction was appealed to the State Court of Bavaria which, on November 30, 1993, dismissed the appeal.

Additionally, the Australian Embassy in Bonn informed us that the above mentioned conviction was rendered by Amtsgericht München; the case-number was Cs 113 Js 3619/90. We did not, however, get the case-number of the file of the Supreme State Court of Bavaria (Bayerisches Oberstes Landesgericht). Accordingly, we do neither know the exact wording of the decision nor its grounds.

Under the German Criminal Procedure Act, decisions by Courts of First Instance (Amtsgericht) may be appealed to either the next higher court (in our case the State Court of Bavaria - Landgericht München) or - in case that the appeal is purely based on legal arguments - to the competent Supreme State Court which, in our case, is the Supreme state Court of Bavaria (Sprungrevision, section 335 of the German Criminal Procedure. Act). If the Accused or the Department of Public Prosecution choose the way to the Landgericht, basing their appeal on factual and/or legal arguments, then the decision of that court may be, under certain circumstances, once again be appealed on points of law to the competent Supreme State Court. This option of a second appeal (Revision) does not, however, exist in case that the Accused Department of Public Prosecution chooses the direct way to the Supreme State Court as mentioned above. With other words: The decision of a Supreme State Court, judging on an appeal against a decision which was, in the first instance, rendered by an Amtsgericht is always final and binding. There does not exist an ordinary legal remedy against this decision.

Nevertheless, Irving has, in his affidavit, stated that "this conviction has no force in German law as it is under valid appeal which was lodged on the 4th January, 1994". Since, as explained above, there does not exist an ordinary right of appeal against the decision of the Supreme State Court of Bavaria, we must assume, that Mr. living has taken recourse to an extraordinary legal remedy. Such extraordinary legal remedy is, in German law, the "constitutional complaint" to be filed to either the Federal Constitutional Court, based on the allegation of violation of federal law, or - if the subject of the complaint is state law - to the respective Slate Constitutional Court.

In our case, Irving was convicted under section 189 of the German Criminal Act which is federal law. Accordingly, the "appeal" mentioned in his affidavit is, most probably. a constitutional complaint filed to the Federal Constitutional Court at Karlsruhe. Alternatively, it might as well be a constitutional complaint filed to the Bavarian State Constitutional Court in case the the complained [sic] was based not only on the allegation of violation of federal law but as well on the violation of state law.

 

2. Assuming that Irving has, in fact, lodged the "appeal" mentioned in this affidavit and that this "appeal" is a constitutional complaint to either the Federal Constitutional Court or the Bavarian State Constitutional Court, then such constitutional complaint would not affect, for the time being, the legal quality of Irving's conviction. The decision of Amtsgericht München is, given that the appeal was dismissed on November 30, 1993, by the Supreme State Court of Bavaria, final and binding. The constitutional complaint has no suspensive effect. The constitutional complaint may, however, provided that it is successful, lead to the reversal of the conviction.

 

3. Enclosed please find a press-release of the German Federal Court or Justice, concerning the decision of March 15, 1994, mentioned under § 8 of your fax. Unfortunately, the judgement itself has not yet been released. Accordingly, I am not able to comment on the grounds of the decision of the German Federal Court of Justice

Nevertheless, the press release clearly states that the object of the decision of the Federal Court of Justice was a conviction under section 130 of the German Criminal Act (incitement) as well as slander (section 186) and defaming the memory of the dead (section 189). The Federal Court of Justice, in its decision, states that the murder of masses of Jews in German concentration camps between 1933 and 1945 is an obvious fact. Nevertheless, the denial of this tact is, by itself, not enough to convict the Accused under section 130 (incitement of the people). This section of the German Criminal Act is, according to the German Federal Court of Justice, only applicable in case that such denial can be interpreted as an attack on the human dignity of the Jews. Accordingly, the Federal Court of Justice ordered the re-trial of the Accused. During this re-trial, the court of first instance will have to examine whether the Accused - for example - denies the above mentioned fact for reasons of his nazi-race-ideology.

The press-release mentions that the court of first instance will as well have to re-examine the conviction under section 189 (defaming the memory of the dead). It does not, however, say why such re-examination is necessary. Accordingly, I am not able to comment whether the German Federal Court of Justice applies the same thoughts (existence of an attack on the human dignity of the Jews) as a preconditon for a conviction under section 189 - Such comments will only be possible as soon as the judgement itself will be released, Nevertheless, according to my opinion, the application of this thought to section 189 seems to be most unlikely: The German legislator has, in 1985, changed section 194 of the German Criminal Act. Until that time, a conviction under section 189 was only possible in case that the descendants of those who were defamed expressly demanded prosecution. With other words: Until that time, "defamation of the dead" was not prosecuted "ex officio" but only upon demand of the descendants. The German legislation has changed this expressly with regard to the defamation of those dead which were victims of the Nazi-Regime. The reason for this amendment was to facilitate the punishment of people who deny the fact that Jews were murdered in German concentrate camps.

Our conclusion is that Irving's conviction will, most likely, not be reversed by the Federal-Constitutional Court or the State Constitutional Court of Bavaria (given that he has really lodged a constitutional complaint). According to our informations his conviction was based only on section 189 of the German Criminal Act but not on section 130 to which the decision of the German Federal Court of Justice mainly refers. We are, however, not able to give you a complexe [sic] and detailed legal opinion on this point since we do neither know the decision of Amtsgericht München, convicting Mr. Irving, nor the decision of the Supreme State Court of Bavaria which dismissed his appeal.

Should you be interested to have more details, we would suggest that you ask Mr. Irving for copies of the decisions of Amtsgericht München and the Supreme State Court of Bavaria Until we have this decisions on hand, the judgement of the German Federal Court of Justice will, most probably, be released. We would then be able to give you more detailed comments.

Best regards,
Yours sincerely,

Dr. Jan Curschmann              Dr. Kai Greve