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Not a Good Day in Magdeburg – After Acquittal Now a Conviction – Prosecution of Expressions of Opinion ContinuesThe public prosecutor would not let go. After an acquittal for alleged trivialization of the Holocaust, now a conviction following an appeal hearing. 
NOT A GOOD DAY IN MAGDEBURGDear community, Last year I defended a client who was charged over four Facebook postings. Three of these posts showed an illustration of the entrance gate to the Dachau concentration camp with the inscription “Vaccination makes you free” instead of “Work makes you free.” Another post showed two swastikas placed side by side. Above the left swastika was the number 1941; above the right swastika, which was composed of syringes, was the number 2021. In all four cases the charge was incitement to hatred in the form of trivializing the Holocaust (§ 130 para. 3 German Criminal Code), in the case of the swastika post committed concurrently with the use of symbols of unconstitutional organizations (§ 86a German Criminal Code). Last year, my client had been acquitted in February by the Wernigerode District Court and in April by the Magdeburg Regional Court. However, in its ruling of September 24, 2025, the Naumburg Higher Regional Court overturned that judgment following an appeal by the public prosecutor. It stated that it was itself unable to assess whether my client had made himself criminally liable for incitement to hatred because the Magdeburg Regional Court had made insufficient factual findings for such an assessment. As a result, a new appeal hearing took place yesterday, March 31, 2026. And it was extremely unpleasant: the Magdeburg Regional Court has now found my client guilty on all four counts of the indictment. According to the court, my client had trivialized the Holocaust. It was completely inappropriate to equate the COVID vaccination campaign with Nazi terror. The vaccinations, after all, had served to protect people from death, from serious illness, and from infecting others. These postings were also capable of disturbing the public peace. Among other things, the court argued that they were capable of inciting people to resist the coronavirus measures by force if necessary before a compulsory vaccination might be introduced. In doing so, the Magdeburg Regional Court adopted a line of reasoning that the Federal Court of Justice had already taken in a decision of February 4, 2025 (3 StR 468/24). The fact that my client had hardly any reach on his Facebook page was summarily declared irrelevant by the court, even though the Naumburg Higher Regional Court had emphasized in its appellate ruling that the Magdeburg Regional Court needed to clarify this circumstance. In my closing argument I had previously referred to statements made by Jens Spahn before the Corona Enquiry Commission of the German Bundestag on December 15, 2025. In that testimony, Jens Spahn had, on the one hand, admitted that it had never been the goal of the COVID vaccination campaign to provide infection protection for third parties, and on the other hand stated that the COVID vaccines are, in a sense, still being tested on the market to this day. The court ignored both points entirely. In my closing argument I also criticized that the judiciary in Germany applies a double standard when it comes to comparisons with the Nazi era: while Nazi comparisons made by supporters of the government remain completely unpunished under criminal law, comparisons made by critics of the government are pursued relentlessly and without mercy. The court merely responded laconically that this was not a political trial. It was only subsuming my client’s actions under the criminal statutes. The work of other courts was not something it had to assess here. The conviction for the use of Nazi symbols was upheld on the grounds that the way my client had used the swastikas had not served the purpose of conveying knowledge. In doing so, the scope of the social adequacy clause in § 86a para. 3 in conjunction with § 86 para. 4 of the German Criminal Code was seriously underestimated. I have recommended that my client file an appeal on points of law against this judgment and will report on further developments. But one thing is already certain: one day the history books will have to write about the presiding judge in this matter: he went along with it. He did his part in ensuring that the judiciary in Germany is increasingly tilting in favor of the ruling political caste and to the detriment of critics of the government. Kind regards Yours sincerely, Martin Schwab
Author: AI-Translation - Martin Schwab | |
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