Strafgesetzbuch section 86a

Text

The relevant excerpt of the German criminal code reads:

|Whoever domestically disseminates or produces, stocks, imports or exports or makes publicly accessible through data storage media for dissemination domestically or abroad, means of propaganda: | of a party which has been declared to be unconstitutional by the Federal Constitutional Court or a party or organization, as to which it has been determined, no longer subject to appeal, that it is a substitute organization of such a party; | of an organization, which has been banned, no longer subject to appeal, because it is directed against the constitutional order or against the idea of international understanding, or as to which it has been determined, no longer subject to appeal, that it is a substitute organization of such a banned organization; | of a government, organization or institution outside of the territorial area of application of this law which is active in pursuing the objectives of one of the parties or organizations indicated in numbers 1 and 2; or | means of propaganda, the contents of which are intended to further the aims of a former National Socialist organization,}}

shall be punished with imprisonment for not more than three years or a fine. | Subsection (1) shall not be applicable if the means of propaganda or the act serves to further civil enlightenment, to avert unconstitutional aims, to promote art or science, research or teaching, reporting about current historical events or similar purposes. | If guilt is slight, the court may refrain from imposition of punishment pursuant to this provision.

| Whoever: | domestically distributes or publicly uses, in a meeting or in writings (§ 11 subsection (3)) disseminated by him, symbols of one of the parties or organizations indicated in § 86 subsection (1), nos. 1, 2 and 4; or | produces, stocks, imports or exports objects which depict or contain such symbols for distribution or use domestically or abroad, in the manner indicated in number 1,}}

shall be punished with imprisonment for not more than three years or a fine. | Symbols, within the meaning of subsection (1), shall be, in particular, flags, insignia, uniforms, slogans and forms of greeting. Symbols which are so similar as to be mistaken for those named in sentence 1 shall be deemed to be equivalent thereto. | The exceptions from § 86 subsection (3) and (4) apply accordingly.}}}}

Symbols affected

The text of the law does not name the individual symbols to be outlawed, and there is no official exhaustive list. A symbol may be a flag, emblem, uniform, or a motto or greeting formula. The prohibition is not tied to the symbol itself but to its use in a context suggestive of association with outlawed organizations. Thus, the Swastika is outlawed if used in a context of völkisch ideology — while it is legitimate if used as a symbol of religious faith — particularly any South, South Eastern or East Asian religions. Similarly, the Wolfsangel is outlawed if used in the context of the Junge Front but not in other contexts such as heraldry, or as the emblem of "landscape poet" Hermann Löns.

Because of the law, German Neo-Nazis took to displaying modified symbols similar but not identical with those outlawed. In 1994, such symbols were declared equivalent to the ones they imitate (Verbrechensbekämpfungsgesetz § 2). As a result of the ban on Nazi symbols, German Neo-Nazis have used older symbols such as the black-white-red German Imperial flag (which was also briefly used by the Nazis alongside the party flag as one of two official flags of Nazi Germany from 1933 until 1935) as well as variants of this flag such as the one with the and the Reichsdienstflagge variants, the Imperial-era Reichskriegsflagge, the Schwarze Sonne and the flag of the Strasserite Black Front – a splinter Nazi organization – as alternatives. They have also used the American Confederate battle flag, due to its association with racism and white supremacy.

Affected by the law according to Federal Constitutional Court of Germany rulings are:

• (1952)
• (1956)
• ()
• (1982)
• (1983)
• (1992) (not to be confused with )
• (1992)
• (1994)
• (1995)
• Blood and Honour, Germany chapter (2000)

Symbols known to fall under the law are:

• the swastika as a symbol of the Nazi Party, prohibited in all variants, including mirrored, inverted etc.
• a stylized Celtic cross, prohibited as a symbol of the VSBD/PdA and in the variant used by the White Power movement. The legal status of the symbol used in non-political contexts is uncertain, but non-political use is not acted upon in practice.
• the solar cross as a symbol of the Ku Klux Klan (symbol of cross burning from the "second Klan" era onward), the German Faith Movement, the Thule Society and the 5th and 11th Waffen SS divisions
• the Sig rune as used by the SS
• the Sturmabteilung emblem
• the legal status of the Othala SS-rune is disputed; prohibited as a symbol of the Hitler-Jugend/Wiking-Jugend. Post-war military usage was incorporated into the Bundeswehr with a stylized "Odal SS-rune" being featured on the shoulder insignia of the Hauptfeldwebel with it also being used by the ranks succeeding it.
• the Wolfsangel as used by the 2nd, 4th and 34th Waffen-SS divisions, and
• badges (2002)
• : prohibited in the Third Reich version including a swastika.
• the greeting (1970)
• the greeting (1990)
• , along with the symbol, as the motto of the Waffen-SS and as the verbal equivalent of the Hitler salute.
• The with the Nazi swastika.
• the (the anthem of the Nazi Party) and (a song of the Hitler-Jugend) (1991)
• the hammer and sickle, red star and red flag when used as emblems of the Communist Party of Germany
• The Black Standard of the Islamic State; widely considered the chief sigil or flag of the jihadi group.
• the People's Protection Units (YPG) pennant was explicitly banned as a symbol related to the PKK on 2 March 2017, even though the organisation itself is not currently recognised as terrorist.
• Since the 2022 invasion of Ukraine by Russia, several states including Berlin, Lower Saxony and Bavaria are looking to put the military Z symbol under the law.
• Hamas is considered a terrorist organisation in the European Union and has been forbidden in Germany since 2023. Accordingly, the public use of all symbols of Hamas is prohibited, including their emblem, flag, logo, images of their representatives, and the red triangle used by Hamas to mark their targets. The phrase "From the river to the sea" is also considered a symbol of Hamas, as long as it is not used in a context that "unambiguously" has nothing to do with the organisation, for example if the organisators of a demonstration have explicitly distanced themselves from Hamas. The use of the Palestinian flag is generally allowed, but might be subjected to restrictions in some schools. Palestinian flags have been confiscated by the police at some demonstrations.

Illustration of the emblems mentioned in the list above: File:National Socialist swastika.svg|Nazi swastika File:Parteiadler der Nationalsozialistische Deutsche Arbeiterpartei (1933–1945).svg|Party Eagle (Parteiadler) of the Nazi Party File:Crossed circle.svg|Solar cross File:Celtic cross.svg|Celtic cross as used by White Power movements File:Broken crossed circle.svg|Broken solar cross of the Thule Society and the German Faith Movement File:KKK.svg|Ku Klux Klan (1915–current) File:Wolfsangel.svg| File:Nazi Odal rune.svg|Odal rune File:SA-Logo.svg|Sturmabteilung emblem File:Sig Runes.svg|Schutzstaffel sig runes File:Totenkopf.svg|Totenkopf File:Flag of the NSDAP (1920–1945).svg|Flag of the Nazi Party Flag of Germany (1935–1945).svg|Flag of the Third Reich (1935–1945) File:War Ensign of Germany 1938-1945.svg|Reichskriegsflagge 1938–1945 (national war flag) File:Reichsdienstflagge 1935.svg|Reichsdienstflagge 1935–1945 (Reich service flag) File:KPD-logo.svg|Emblem of the Communist Party of Germany (redrawn after a historical lapel pin) File:Flag of the Communist Party of Germany.svg|Red flag of the Communist Party of Germany File:Flag of the Communist Party of Germany (reverse).svg|Reverse side of the red flag of the Communist Party of Germany File:AQMI Flag asymmetric.svg|Islamic State version of the jihadist black flag File:People's Protection Units Flag.svg|Flag of the Kurdish People's Protection Units File:2022 Russian Invasion vehicle marking Z.svg|Russian "Z" military symbol File:Flag of al-Qassam Brigades.svg|Hamas flag

Anti-fascist symbols

In 2005, controversy arose about whether the paragraph should be taken to apply to the display of crossed-out swastikas as a symbol of anti-fascism. In late 2005 police raided the offices of the punk rock label and mail order store "Nix Gut Records" and confiscated merchandise depicting crossed-out swastikas and fists smashing swastikas. In 2006, the Stade police department started an inquiry against anti-fascist youths using a placard depicting a person dumping a swastika into a trashcan. The placard was displayed in opposition to the campaign of right-wing nationalist parties for local elections.

On Friday, 17 March 2006, a member of the Bundestag, Claudia Roth, reported herself to the German police for displaying a crossed-out swastika in multiple demonstrations against Neo-Nazis and got the Bundestag to suspend her immunity from prosecution. She intended to show the absurdity of charging anti-fascists with using fascist symbols: "We don't need prosecution of non-violent young people engaging against right-wing extremism." On 15 March 2007, the Federal Court of Justice of Germany (Bundesgerichtshof) reversed the charge and held that the crossed-out symbols were "clearly directed against a revival of national-socialist endeavors", which thereby settled the dispute for the future.

Application to forms of media

Section 86a includes a social adequacy clause that allows the use of the symbols that fall within it for the purposes of "art or science, research or teaching". This generally allows these symbols to be used in literature, television shows (as with the 1968 Star Trek episode, "Patterns of Force", itself allowed after 1995), films, and other works of art without censoring or modification and stay within the allowance for the clause. For example, German cinemas were allowed to screen Raiders of the Lost Ark and Inglourious Basterds, films which feature frequent displays of Nazi symbols, without censorship.

Up until 2018, video games were not included in the social adequacy clause. A High District Frankfurt Court ruling in 1998 over the video game Wolfenstein 3D determined that because video games do attract young players, "this could lead to them growing up with these symbols and insignias and thereby becoming used to them, which again could make them more vulnerable for ideological manipulation by national socialist ideas". Since this ruling, the (USK), the German content ratings board, would refuse to rate any game that includes symbols under Section 86a, effectively banning them from retail sales within Germany. This led to software developers and publishers to either avoid publication in Germany, or create alternative, non-offending symbols to replace them, such as in Wolfenstein II: The New Colossus, where the developer had to replace the game's representation of Adolf Hitler with a version without the moustache and named "Chancellor Heiler".

In August 2018, the German government reversed this ruling as a result of a ruling from April 2018. The web-based game was released prior to the September 2017 elections, which included parodies of the candidates fighting each other; this included Alexander Gauland, who had a special move that involved swastika imagery. When this was noticed by public authorities, they began prosecution of the game in December 2017, submitting it to the Public Prosecutor General's office for review based on the Wolfenstein 3D decision. The Attorney General declined to consider the game illegal under Section 86a, stating that the 1998 ruling was outdated; since then, USK had adopted age ratings for video games, and that there was no reason not to consider video games as art within the social adequacy clause. As a result, the Federal Department for Media Harmful to Young Persons adapted the Attorney General's ruling to be applicable for all video games within Germany, and subsequently the USK announced this change in August 2018; USK will still review all games to judge whether the use of imagery under Section 86a remains within the social adequacy clause and deny ratings to those that fail to meet this allowance. In August 2020, Through the Darkest of Times, in which players follow an anti-Nazi resistance group, became the first game permitted by USK to depict swastikas.{{multiref| |

Notes

References

References

1. "Section 86a Use of Symbols of Unconstitutional Organizations". German Law Archive.
2. Andreas Stegbauer. "The Ban of Right-Wing Extremist Symbols According to Section 86a of the German Criminal Code". germanlawjournal.com.
3. World Bank. "GERMAN CRIMINAL CODE Criminal Code in the version promulgated on 13 November 1998, Federal Law Gazette [Bundesgesetzblatt] I p. 3322, last amended byArticle 3 of the Law of 2 October 2009, Federal Law Gazette I p. 3214". worldbank.org.
4. "Imperial German Flag".
5. Speiser, Matthew. (June 24, 2015). "Here's why the Confederate flag is flown outside the US".
6. Urteil des Bundesverfassungsgerichts vom 23. Oktober 1952, Aktenzeichen 1 BvB 1/51; Fundstelle: {{ill. BVerfGE. de. Entscheidungen des Bundesverfassungsgerichts [http://www.oefre.unibe.ch/law/dfr/bv002001.html 2, 1] {{Webarchive. link. (19 January 2003)
7. Urteil des Bundesverfassungsgerichts vom 17. August 1956, Aktenzeichen 1 BvB 2/51; Fundstelle: BVerfGE [http://www.oefre.unibe.ch/law/dfr/bv005085.html 5, 85] {{Webarchive. link. (12 February 2007)
8. (14 November 2008). "Isoliertes Verwenden eines stilisierten Keltenkreuzes grundsätzlich strafbar". [[Der Bundesgerichtshof]].
9. Huhn, Wilson. (1970). "Cross Burning as Hate Speech Under the First Amendment to the United States Constitution". Free University Amsterdam.
10. (2 December 2005). "Gauwinkel". taz.de.
11. Entscheidung des Oberlandesgerichts Celle, ''[[Neue Juristische Wochenschrift]]'' 1970, 2257
12. Entscheidung des Oberlandesgerichts Düsseldorf vom 6. September 1990, {{ill. Monatsschrift für Deutsches Recht. de (MDR) 1991, 174
13. Entscheidung des Bundesgerichtshofes, Aktenzeichen 3 StR 280/76, {{interlanguage link. BGHSt. de. Entscheidungen des Bundesgerichtshofes in Strafsachen 27,1
14. Entscheidung des Oberlandesgerichts Celle, ''[[Neue Juristische Wochenschrift. NJW]]'' 1991, 1498
15. (12 September 2014). "Germany Bans Support for ISIS". [[The New York Times]].
16. . (2014). ["Germany 2014 human rights report – US Department of State"](https://2009-2017.state.gov/documents/organization/236740.pdf). *United States Department of State*.
17. (19 August 2017). "German police raid leftist for posting Kurdish YPG flag".
18. (21 November 2017). "German lawmaker sparks criticism after displaying banned YPG flag in parliament".
19. Gude, Hubert. (10 March 2017). "De Maizière verbietet Öcalan-Porträts". Spiegel Online.
20. Yücel, Deniz. (24 February 2016). "Gute Kurden, böse Kurden. Wer ist Terrorist?". Welt.
21. tagesschau.de. "Ukraine-Krieg: Zeigen des "Z"-Symbols kann strafbar sein".
22. (2022-03-28). "Germany to prosecute use of 'Z' symbol to support Russia's war".
23. "EU court keeps Hamas on terrorism list, removes Tamil Tigers". Reuters.
24. Bauer, Christoph Kehlbach, Max. "Hamas und Samidoun: Wie Betätigungsverbot und Vereinsverbot funktionieren".
25. K.d.ö.R, Zentralrat der Juden in Deutschland. (2024-11-12). "Hamas-Verbot erweitert um rotes Dreieck und Terroristen-Bilder".
26. (8 October 2024). "Antisemitismus und Desinformation im Netz {{!}} Bundesregierung".
27. (2024-09-25). "Verbot von Pro-Palästina-Parole war rechtens: Verwaltungsgericht Düsseldorf". Der Spiegel.
28. Rath, Christian. (2024-09-27). ""From the River"-Parole ist strafbar". Die Tageszeitung: taz.
29. "Israel-Gaza demonstrations: What is allowed in Germany? – DW – 11/03/2023".
30. Tanno, Sophie. (2024-01-28). "No European country more than Germany is going further in clamping down on Hamas".
31. (2024-04-03). "Solidarity protests with Palestinian people banned in at least 12 EU countries, finds new analysis, six months on from the horrific Hamas attack on 7 October - European Civic Forum".
32. (2023-10-15). "Nahost-Konflikt in Berlin: Freies Palästina verboten". Die Tageszeitung: taz.
33. "Was bei Pro-Palästina-Demonstrationen erlaubt ist und was nicht - buten un binnen".
34. (2023-10-21). ""Pauschale Verbote sind verfassungsrechtlich fragwürdig"".
35. Dixon, Thomas, 1864–1946. Arthur I. Keller, illustr. ''The clansman; an historical romance of the Ku Klux Klan'' New York Doubleday, pp. 324–327
36. Cecil Adams. (June 18, 1993). "Why does the Ku Klux Klan burn crosses?". The Straight Dope.
37. (4 April 2006). "Stuttgart Seeks to Ban Anti-Fascist Symbols". Journal Chrétien.
38. (23 September 2006). "Plakate sind Thema im Landtag". Tageblatt Online.
39. "Bundesgerichtshof, decision (Urteil) of the 15 March 2007, file reference: 3 StR 486/06".
40. (15 March 2007). "Durchgestrichenes Hakenkreuz kein verbotenes Kennzeichen". Der Bundesgerichtshof.
41. (15 March 2007). "Bundesgerichtshof: Anti-Nazi-Symbole sind nicht strafbar". Der Spiegel.
42. "5 original Star Trek episodes that were banned overseas".
43. Schwiddessen, Sebastian. (8 May 2018). "German Attorney General: Video game with Swastika does not violate the law; constitutes art". [[Lexology]].
44. Orland, Kyle. (10 August 2018). "Germany says games with Nazi symbols can get 'artistic' exception to ban". [[Ars Technica]].