-2

There is an image being published in the internets which shows that, allegedly, in German city of Paderborn having the letter Z and the Russian flag in your WhatsApp profile is a violation of section 140 criminal code (rewarding and approving of criminal acts).

Letter from the police

Is there an official registry where one can see all materials that are illegal under this law in Germany, if "published" in a WhatsApp profile picture?

Note: If this image is probably fake, please explain in the comments.

Glory to Russia
  • 619
  • 6
  • 13

1 Answers1

4

There is no exhaustive list of material banned specifically in WhatsApp profile pictures, but there is an exhaustive list of crimes that § 140 StGB applies to:

Whoever

  1. rewards or
  2. approves of publicly, in a meeting or by disseminating material (section 11 (3)) in a manner which is suitable for causing a disturbance of the public peace

one of the unlawful acts referred to in section 138 (1) nos. 2 to 4 and no. 5 last alternative and in section 126 (1) or an unlawful act under section 176 (3), sections 176a and 176b, under section 177 (4) to (8) or section 178 after it has been committed or culpably attempted incurs a penalty of imprisonment for a term not exceeding three years or a fine.

In turn, sections 138 and 126 enumerate various crimes, whereas the other mentioned sections relate to (child) sexual abuse.

Section 138 (1) no. 5 lists:

murder under specific aggravating circumstances (section 211) or murder (section 212) or genocide (section 6 of the Code of Crimes against International Law) or a crime against humanity (section 7 of the Code of Crimes against International Law) or a war crime (section 8, 9, 10, 11 or 12 of the Code of Crimes against International Law) or a crime of aggression (section 13 of the Code of Crimes against International Law)

The last alternative is indeed a “crime of aggression” which is defined in particular as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”.

In Germany, there is a clear consensus that Russia is waging a war of aggression against Ukraine. The “Z” symbol is used in a Russian context in support of this invasion. It is therefore understandable that a prosecutor has the reasonable suspicion that publicly posting a Russian flag with the Z symbol is public approval of this crime of aggression. Spiegel Online reported of 140 similar cases across Germany.

Thus, the photo could be real. Of course, the accused should not accept this invitation to talk to the police and instead get themselves a criminal defense attorney. A defense strategy would likely argue that the profile picture was not “suitable for causing a disturbance of the public peace” so that the conditions of § 140 StGB were not fulfilled. More realistically, the defendant would not contest a fine.

amon
  • 23,930
  • 3
  • 44
  • 76
  • @PDP If you want to disagree with the assertion of the district attorney, you need to go to court. Not your opinion matters but the court's that will hear the case eventually. – Trish Apr 24 '22 at 17:47
  • Further reading: According to the Tagesschau several federal countries declared the letter in the right circumstances to violate 140 StGB on or before 28th March, and others since. – Trish Apr 24 '22 at 18:09
  • 1
    @PDP Since that issue is not relevant for this question, I edited my answer to replace the statement of fact to a description of the consensus in Germany. Of course, if no war of aggression in the legal sense happened, then the accusation of § 140 public approval would be baseless. – amon Apr 24 '22 at 18:12
  • @Trish Re Not your opinion matters but the court's that will hear the case eventually.: Can you please point me to a a court decision that Russia's actions in Ukraine are a war of aggression? – Glory to Russia Apr 24 '22 at 20:16
  • 1
    @PDP Bavaria's ministry of justice has declared that the usage of Z in combination for supporting the russian invasion of ukraine is to be prosecuted - so far no court has given a verdict but there are dozens of cases running - all of them in preliminary stages. Those cases can take years, but it is pretty much that: the usage is illegal, because the executive deems it a breach of §140. – Trish Apr 24 '22 at 20:30
  • @amon Re In Germany, there is a clear consensus that Russia is waging a war of aggression against Ukraine: My understanding was always that the parliament makes laws and the executive branch enforces them. How exactly was this "ban the letter Z" made into law? In other words: What exactly prevents a prosecutor from punishing people for having letters V and O in their profile pictures which can be seen as symbols of Russian actions in Ukraine on the same basis as Z (all three letters appeared on Russian military vehicles)? – Glory to Russia Apr 24 '22 at 20:30
  • Another example: Imagine person A makes the V sign with their fingers (meaning the number 2 as in "2 beers") and person B makes the OK sign in a truly public space (like on a square in a big city at rush hour) such that it is likely that some Ukrainian refugees are there. I could argue that both these people are causing distress to those refugees because both signs look like V and O and these are as bad as Z. On what legal basis would a judge decide whether these 2/OK signs are illegal or not? – Glory to Russia Apr 24 '22 at 20:38
  • 3
    @PDP I'm not saying that there will be a successful conviction. I'm saying that there's a general consensus that RU attacked UA, that the Z symbol is associated with support for the RU invasion when used in a RU context, and that a prosecutor therefore has reasonable suspicion to conduct an investigation. Context matters. The V/O/2/victory/OK symbols aren't used comparably. Ultimately, there doesn't have to be a specific law for every fact constellation, it's just necessary for the prosecutor to argue the case in court. The judges decide whether the elements of the crime were committed. – amon Apr 24 '22 at 20:54
  • @PDP I found a case that could be relevant: Some guy used a Pink Panther costume with a flag to create a video. This video was seen as violating §140 StGB and his house was searched, some items confiscated. He appealed the search and seizure, the appeal was struck down. – Trish Apr 25 '22 at 09:18
  • Even saying "I understand that they do X" where X is a crime can be prosecuted under §140 StGB. – Trish Apr 25 '22 at 09:26
  • 3
    @PDP, language is a social constuct. If the defendant wanted to argue that he or she had been hiding under a rock the last two months, and thus no idea of the changed meaning of 'Z' in the Russian context, and if the judge were to find that credible, the defendant would be acquitted. And someone from Zwickau would have an easier time using the 'Z' today than someone from, well, Paderborn. There is plenty of legal precedent parsing the niceties of 'KPD', 'SS', 'HH', '88', or '18' in different contexts, and the same applies to 'Z' here. – o.m. Apr 25 '22 at 16:53
  • 1
    @Trish: I'd have read the English "I understand they do X" as far more distanced (even expressing hearsay) than how I read German court text, including the quotation of what was said. That does not only express understanding (as in the cognitive process of understanding what is going on), but also approval. The latter is what the court decision hinges on. IMHO "understandable" would be a better translation. – cbeleites unhappy with SX Apr 25 '22 at 17:50