[32] Some provisions of the German Penal Code protect collective goods that exceed individual and collective defamation. The Penal Code's section on "Threats to the Democratic Constitutional State" (§§ 84 to 91) contains provisions forbidding the dissemination and use of propaganda by unconstitutional and National Socialist organizations (§§ 86 and 86a). This prohibits, for instance, displaying National Socialist "flags, badges, uniform parts, passwords, and salutes" (§ 86 a (2))—particularly the Nazi salute and the swastika. These are all symbolic acts of hate speech punishable under criminal law. (48) In addition, in its section on "Crimes Against the Public Peace" (§§ 123 to145 d), § 130 proclaims incitement to hatred and violence against minority groups to be a punishable offence. (49) § 130 reads,
(1) Whosoever, in a manner liable to disturb public peace, (No. 1) incites hatred against parts of the population or invites violence or arbitrary acts against them, or (No. 2) attacks the human dignity of others by insulting, maliciously degrading or defaming parts of the population shall be punished with imprisonment of no less than three months and not exceeding five years.
(2) Imprisonment, not exceeding five years, or fine will be the punishment for whoever (No. 1) (a) distributes, (b) makes available to the public, (c) makes available to persons of less than 18 years, or (d) produces, stores or offers for use as mentioned in letters (a) to (c) documents inciting hatred against parts of the population or against groups determined by nationality, race, religion, or ethnic origin, or inviting to violent or arbitrary acts against these parts or groups, or attacking the human dignity of others by insulting, maliciously ridiculing or defaming parts of the population or such a group, or (No. 2) distributes a message of the kind described in No. 1 by broadcast.
(3) Imprisonment, not exceeding five years, or a fine, will be the punishment for whoever, in public or in an assembly, approves, denies or minimizes an act described in § 220 a (1) committed under National Socialism, in a manner which is liable to disturb the public peace. (50)
[33] In sum, these provisions in the Penal Code establish a far-reaching criminalization of hate speech that is directed against individuals and groups and that is further secured by norms protecting public peace and the constitutional order. In enacting these provisions, Germany satisfied its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. (51)
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