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A Courageous Judgment: Corona, the Unvaccinated, and the Yellow Star – How a Court Defended the Historical ComparisonA second example from case law on the criminal liability of Nazi comparisons in criticism of corona measures, which is overall to be evaluated positively, is a decision by the District Court (AG) Brandenburg of 30.10.2024 – 25 Ds 72/23. I had handled the case as defense counsel. 
The following had happened: On a social media post by CAMPACT it was stated: “Anyone who wears a yellow star with the inscription ‘unvaccinated’ (…) trivializes the Holocaust, downplays a genocide, and spits on the graves of the victims of National Socialism.” My client then posted the following comment below it: “Even Holocaust survivors compare what is happening now with the time after 1933. Back then it also didn’t start with concentration camps. Back then the Jews were the scapegoats, today it’s the ‘unvaccinated.’” The public prosecutor accused my client of trivializing Nazi injustice with this comment and filed charges of incitement to hatred (§ 130 para. 3 German Criminal Code). However, on 30.10.2024 the AG Brandenburg decided not (!) to open the main proceedings, because the indictment did not show that a conviction was likely. Thus, the case did not even make it to the main hearing but was, so to speak, “buried” already in the intermediate proceedings. In a brief during the intermediate proceedings, I had referred to the speech of Holocaust survivor Vera Sharav on the occasion of the memorial event “75 Years Nuremberg Code” in August 2022 in Nuremberg. In this speech, Vera Sharav herself had urgently warned that the Corona era was reminiscent of the beginnings of the Nazi period. The AG Brandenburg picked up on this reference and stated approvingly in the decision under discussion here that my client, with the sentence “Even Holocaust survivors compare what is happening now with the time after 1933,” had not trivialized anything but had merely asserted a true fact. Regarding my client’s statement about scapegoats, the court considered that this could “be understood as a description of a personally perceived exclusion, which the accused wanted to be understood as analogous to the exclusion Jewish citizens had to endure just a few weeks after power was handed over to Adolf Hitler.” Thus, according to the court, my client was not referring to the later Nazi genocide, “but compares the situation of the unvaccinated with the initial exclusion of the Jews in the early phase of the ‘Third Reich,’ without taking into account their later dehumanization and extermination by the National Socialists and their willing helpers.” In any case, however, my client’s comment was not suitable to disturb public peace. In the intermediate proceedings, I had taken from the site ‘ichhabemitgemacht’ a number of verbal derailments by supporters of corona policy and listed them. The court did consider it “tasteless” to compare these statements with the exclusion of the Jews in the Third Reich, but conceded that “the climate of debate on both sides of the argument was in part poisoned.” Thus, the court refused to apply double standards. And that alone is already worth a great deal in our time. Best regards Yours sincerely Martin Schwab Author: AI-Translation - Martin Schwab | |
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