The Curious Case of “Owl”, the Unknown Prisoner

German environment activists have been protesting the planned destruction of a part of the Hambacher Forest to allow the expansion of a coal mine. There have been many arrests, injuries, and even a death (a journalist fell from one of the treehouses activists have built).

One of the activists was tried and convicted of attempting to kick a police officer. The first remarkable thing about this case is that, at the time of the assault, her hands and feet were bound (g). Officers gave conflicting accounts of how exactly she planned to kick one of them in this position. Another odd thing is that the judge gave her an extremely harsh sentence by German standards, 9 months’ imprisonment without probation. She was just released from prison.

But the most curious thing about the case, at least to me, is that the court never found out who she is. She had no identification with her when she was arrested, and refused to cooperate with police and court attempts to identify her. She’s still known only as Eule (Owl). I know of no other criminal case ever in which the defendant was arrested, put on trial and prosecuted, without their identity ever being confirmed.

This shows you, on the one hand, how powerful Germany’s obsession with privacy can be. If you’ve never been arrested, your fingerprints will not be on file anywhere. Even cops can’t force you to reveal your identity, or take other steps to investigate and determine who you are. So if you stubbornly refuse to cooperate, there’s no way even the combined force of the German state can find out who you are.

On the other hand, this seems like yet another rule of German criminal law which is going to have to be tightened. This case involved an arrest at a protest, which isn’t a major threat to public safety, in my view. But what if word gets around that you can hide your identity from the state forever? Do we want violent criminals to be able to be convicted, and even serve their sentence, and then be released in to the community without anyone knowing who they are?

I’ve argued here before that German criminal laws were written in an era in which Germany was a relatively homogeneous, tight-knit society with a broadly-shared sense of right and wrong, high social trust, and low crime levels. Believe it or not, German criminal law is based on the idea that accused criminals will cooperate with the system, and in return the system will treat them more like wayward family members than dangers to society. Confess, my son, and we will help you get back on the right track.

This system was never designed to foil active attempts to undermine it by clever, determined criminals — especially foreigners who don’t share, and may not even be aware of, the presumptions and ethical world-view of the average German. If Germany wants to achieve meaningful sanctions and deterrence of these folks, it’s going to have to tighten its laws.

The Bielefeld Sandwich Poisoner and the Meaning of “Especially Culpable”

One of the strangest cases in modern German crime has just ended in a life sentence (g) for the defendant, Klaus O. Klaus was a metalworker in a medium-sized firm near Bielefeld. He’d worked there for 38 years.

A few years ago, people at the firm started falling seriously ill for unknown reasons. They had been poisoned by substances such as lead acetate. One was left in a coma, others with permanent kidney damage requiring dialysis.

One of Klaus’ co-worker noticed a suspicious white substance on his sandwich. He advised the firm management, which installed a security camera. The camera caught Klaus O. poisoning his colleagues’ lunches. The authorities suspect he poisoned up to 21 people.

Klaus never made a statement to the authorities, and never revealed his motive. He seemed to have chosen his victims more or less at random, and there was no evidence he had grudges against them. A psychiatrist appointed by the court to evaluate him said his attitude was like a scientist conducting “experiments”. The Bielefeld Regional Court sentenced Klaus to life in prison for attempted murder and a series of other crimes. The Court also made a special finding that he was ‘especially culpable’.

To understand why this is important, we need to go in to German sentencing law. In Germany, ‘life’ in prison is a specialized legal term. In 1977, the Federal Constitutional Court of Germany handed down the Life Imprisonment decision (g). The Court held that a life sentence was constitutional under German law, but that, to respect human dignity, a prisoner sentenced to life must always retain some chance of being released at some time. So absolute life without parole is unconstitutional.

The German parliament eventually created a new system of punishment to implement the Court’s decision. The law now provides that someone sentenced to life in prison must be considered for parole after serving 15 years of their sentence, and parole should ordinarily be granted if, after serving that time, there is a “favorable prognosis” for the defendant to be re-integrated into society. However, this rule can be superseded if the trial court finds that the defendant’s actions showed a “special” or “unusual” level of culpability (besondere Schwere der Schuld, literally: An unusually heavy load of guilt). According to a recent decision (g) of the Federal Supreme court of Justice, a finding of special culpability “requires that the overall context of the crime, including the personality of the offender, deviates so far from the court’s experience of ordinary murder cases that the release of the prisoner on parole after the minimum of fifteen years appears inappropriate, even if the defendant has received a positive prognosis.”

The Bielefeld court went even further, though, and entered findings which can later be used to impose post-sentence protective custody (Sicherungsverwahrung). This allows offenders who have served their official prison sentence to be kept in secured ‘treatment’ facilities if a court finds that they have “a tendency to commit serious crimes which pose a threat to the community.” Formerly, German courts could order this sort of preventive detention when an offender was about to be released from prison, even if nobody had raised the possibility of preventive detention when the offender was initially sentenced for his crime. The law allowing “retroactive” preventive detention was then successfully challenged in the European Court of Human Rights, triggering a series of German court decisions and legal reforms, as the Strasbourg Observer blog notes:

Since 2009, the European Court had to examine in several cases the compatibility of German legislation on detention of serious criminal offenders for preventive purposes. In its judgment of M. v. Germany, the Strasbourg Court characterized it as a “penalty”, applying to it the guarantees of Articles 5 and 7 of the European Convention. The preventive detention must be regarded as a “penalty”, on the one hand because its aim is not only preventive but also punitive and, on the other, because of the gravity of the measure provided by the German Criminal Code. Following this judgment, and called by the Federal Constitutional Court to completely recast the system (see BVerfG, 4 May 2011, 2 BvR 2365/09, BVerfGE 128, 326), a new law has been adopted on 5 December 2012 (Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung). It is in this context that in 2016, the Court rendered the Bergmann judgment, which constitutes a turning point in its position. This was the first case in which the Court examined the compatibility of the Convention with the new German legal framework on preventive detention. The Court stated that, since the measure is ordered for therapeutic purposes in respect of an applicant suffering from a mental illness, the nature and purpose of the measure change substantially, to the point of no longer as amounting to a “penalty” (para. 182). Preventive detention is therefore exempt from the guarantees of Articles 5 (1) and 7 of the Convention.

To sum up the current state of the law in plain(er) English, German courts can still order offenders detained after they have served their official prison sentence, as long as (1) the court which handed down the initial sentence enters a finding that preventive detention may later be necessary; and (2) preventive detention after sentence is done for therapeutic purposes instead of punishment and conditions in detention are sufficiently “distanced” from ordinary prison confinement (Abstandsgebot).

Germany’s laws on preventive detention are controversial, as the judicial back-and-forth described above makes clear. However, the question is: what are the alternatives for protecting society from especially dangerous people? The most lenient approach is to simply release them after a fixed term, and accept the fact that some offenders (not that many) will commit fresh crimes. The American approach is to hand down either death sentences or life-without-parole sentences which afford prisoners no hope of release at all, no matter how much they change while incarcerated. The German system represents a middle-ground: Monitor how the offender does in prison, and then decide, shortly before release, whether to confine him afterward for “therapeutic” purposes.

In any case, the Bielefeld sandwich poisoner received the highest penalty allowed by German law: After serving 15 years of his sentence, he will not be immediately parole-eligible. The court will assign an additional period of parole ineligibility. And even after he serves out the additional period of parole-ineligibility, he may be kept in preventive detention. Given his age, then, Klaus will probably spend the rest of his life behind bars.

German Justice in Action: Acquitted in 20 Minutes

Occasionally, when I’m in the neighborhood, I like to drop in and watch a German trial. German court proceedings, especially criminal proceedings, are governed by the “openness principle” (Öffentlichkeitsgrundsatz), which means that anyone can visit them.

Today it was the Amtsgericht, which is where most criminal trials in Germany are held. You have to pass through security screening, but it’s fairly routine. The court building, quite new and handsome, is usually mostly empty; most of the actual business is done inside courtrooms and offices. People arrive and leave to participate in trials without hanging around.

This trip to the courthouse was pretty interesting, because I got to see a complete trial from beginning to end, and it only lasted 20 minutes. The defendant was a Kurdish guy in his late 20s, who arrived with a few family members. The trial began with the prosecutor reading the indictment, which was “resisting a law officer” (Widerstand gegen Vollstreckungsbeamte). The prosecutor was a young lawyer who seemed pretty detached — this was just one of several cases he was going to handle, and, seemingly, not a very important one. After the indictment was read, the judge — also a young male lawyer — turned to the defendant and asked for some basic background information, which the guy gave. (Judges and prosecutors in district courts tend to be young; it’s the first step on the judicial career ladder, which starts directly after law school).

The judge then asked if he had anything to say, while reminding him he wasn’t obliged to say anything. The young man gave a short statement: the charges were totally unfounded; he never kicked or punched any law enforcement officer, and the video evidence would prove it. He admitted he was “aufgebracht” (upset), but that’s because the police had ordered the demonstration to be dispersed “because of the flag” and then blocked in some of the demonstrators with a cordon.

Nobody mentioned it at trial, but this was a pro-Kurdish demonstration (g) in Düsseldorf which took place on 4 November 2017 which devolved into chaos and resulted in numerous injuries. An administrative court had authorized the demonstration, but forbidden demonstrators to display images of Abdullah Öcalan, the leader of the militant Kurdish nationalist PKK party, who is currently imprisoned in Turkey. The PKK has been banned in Germany since the 1990s, and this ban has been interpreted to include images of Öcalan. About 6,000 demonstrators showed up, and waved flags with Öcalan’s image. The police then ordered the demonstration dispersed, and things got ugly.

At the trial, though, the only question was whether the defendant had actually resisted a law officer. The judge was supposed to call a witness, presumably a cop, but the witness was sick. After a brief conversation, the judge decided to go ahead anyway. He whipped out a video disc containing a film of the encounter, and played it at the witness stand, so the defendant and the prosecutors could both see (but us visitors could not). Eventually, everyone agreed that the video only showed the defendant shoving a private security guard, not a law enforcement officer, and that even this didn’t show anything damning, since the situation was chaotic, and the crowd was milling about, shoving and pushing against the police cordon.

The judge asked the prosecutor for his plea, and the prosecutor stood up and basically said that in light of the video evidence, he had no choice but to argue for the defendant’s acquittal. The judge agreed, and asked us all to rise, then entered the official verdict. The defendant walked out of court a free man.

I find the informality of German court proceedings interesting, because it’s such a stark contrast with American courts. The judge controls the proceeding and asks common-sense questions to gather information. The defendant can show up without a lawyer, as this defendant did, and speak for himself about the charges directly to the judge. The judge also doesn’t engage in elaborate, scripted questioning routines to remind the defendant of his or her rights. Most judges don’t insist on much formality. As soon as lawyers and judges leave the courtroom, they remove their black robes and walk out of the courthouse looking like normal people. There’s not even a barrier between the witness stand (which is in the middle of the room, facing the judge), and the chairs for observers and visitors. When the defendant and his family left the courtroom, obviously happy with the outcome, they called an informal Tschüss (“Bye!”) to the courtroom personnel, and nobody was offended.

Germany may have a reputation for unnecessary bureaucracy, but German criminal trials belie this stereotype. Of course this was a low-level case, and more important trials will be more formal and have more security. But even those never approach the rigid, rule-bound style of American criminal justice. The guiding principle of a German trial is to quickly find out what the important issue is and decide it without a lot of fuss and bother. This is why many American observers, once they understand how the German justice system works, come away impressed with its no-nonsense efficiency.

Bavaria Passes Sweeping New Law to Give Adorable Blond Angel Cops More Powers

The German site Netzpolitik reports (g) that the Bavaria is about to pass a new police law which will give law enforcement in that state sweeping new powers of surveillance, and illustrates the article with this picture:

The report raises a number of fascinating policy issues which — dear God that is a hot cop. The high cheekbones, the soulful eyes, the sensual pout, the disheveled blond hair — that’s the whole package alright.

If that’s how Bettina — I’m sorry, Officer Bettina — looks in a uniform, imagine what a bombshell she must be in a little black dress? Wait, no, then she’d be just another hottie. It’s the uniform, and especially the job, which give her than indefinable Night Porter je ne sais quoi. As far as I’m concerned, the Bavarian state legislature can give her all the power they want.

And it’s not just Bavaria. I see plenty of toothsome female cops here in Düsseldorf. Come to think of it, I find many of the young male cops good-looking, too, although I don’t swing that way.

What is it that drives these bombshells to enter the mildly dangerous world of German policing? Is it the stable salary and generous pensions? The chance for professional advancement? A desire to assist their fellow citizens? A longing to exercise authority?

Whatever it is, I hope they keep it up.

In Which I Admire Millions of Tiny German Lawsuits And Annihilate Several Canards About the Law

The U.S. is famous in Germany for its 'runaway' juries which hand down zillion-dollar lawsuits against poor defenseless companies. Yet, as I told my dumbfounded students, Germany is a far more litigious society than the USA. In fact, according to a book-length 1998 study, Germany is the most lawsuit-happy country on earth:

Country Cases per 1,000 Population

• Germany 123.2
• Sweden 111.2
• Israel 96.8
• Austria 95.9
• U.S.A. 74.5
• UK/England & Wales 64.4
• Denmark 62.5
• Hungary 52.4
• Portugal 40.7
• France 40.3

My German students were dumbfounded by this fact. Most of them got their image of the world from the mainstream press. And, as usual, German journalists tended to obsess over the real or imagined failings of other countries, while remaining ignorant of what was going on in their backyard.

But aside from the good clean fun of this tu quoque response, it's interesting to think about why Germany is so litigious. I think there are 4 main reasons:

  • Legal insurance (Rechtschutzversicherung). Millions of Germans have legal insurance policies that pay for lawyers both to file claims and defend against them. This insurance is affordable because litigation costs in Germany are low. Legal insurance is actually an excellent idea, every country in the world could benefit from widespread legal insurance. What it means in Germany, though, is that if you have a policy, you don't have to think twice about filing a lawsuit. Granted, the lawyer is not supposed to file if you don't have a claim, but many do anyway. Legal insurance also provides a lifeline for many small-time lawyers — they can patch together a decent livelihood by having a constant docket of 40-50 small time cases going on at any time. None of these cases will generate a huge verdict, but a steady stream of small payments is enough.
  • Lawsuits are a fact of life. Nobody really takes them seriously. If your landlord hikes your rent, you use your legal-insurance lawyer to fight it. The landlord uses their legal-insurance lawyer to defend. After all, if you don't sue, you'll certainly have to pay the extra 10% in rent. If you do sue, you might end up with a discount. The landlord would probably do the same thing in your position, and knows this.
  • Close neighbors make bad blood. Germany is a small country packed with people. Everything you do in public is going to have some effect on your neighbors. If a potted plant falls off your city balcony, it's going to hit someone or something below. If your cat likes to relieve themselves on your neighbor's lawn, they're going to notice. And might just take lethal action. Your barbecue smoke is going to trigger someone's asthma 5 houses down. The list goes on and on. Every German state has a long, complex "neighbor law" (here's the one (g) for my state), and many lawyers do nothing else. And once again, these petty squabbles are going to end up in court because it's so easy to go to court because of legal insurance. 

And finally, no lawsuit is too tiny. As Wagner once said, a German is someone who will always do something for its own sake. Which means Germans will file a suit over anything. Why, here's a story (g) from the excellent criminal-defense blog lawblog. Two retirees went fishing for deposit bottles in Munich, a favorite pastime of poor Germans, or just ones who need some way to fill their days in the fresh air.*

They approached a large man-sized glass-recycling container, whipped out their grabbers, and started fishing around inside the container. Recycling containers are supposed to be reserved for bottles which don't have a deposit on them, like wine bottles. But many people don't care or don't know how to tell a deposit from a non-deposit bottle, and just toss everything in.

Sure enough, our two hunters found 15 deposit bottles with a total value of € 1.44. Two other Germans, who were certainly feeling very German that day, called the police and reported the bottle-fishers for theft. Wait, what? Two people minding their own business, helping recycle glass, augmenting their puny incomes, harming nobody, and their fellow Germans report them to the cops? Welcome to Deutschland, my friends.

Now German prosecutors are obliged to investigate every credible accusation of crime that comes to their attention, the famous "Principle of Legality"**. This they did. The first thing they had to determine was what the value of the theft was. Technically, this was a theft — once you throw a glass bottle into a recycling bin, it becomes the property of the recycling company. So you might think that the amount of the theft was the deposit value of the bottles. But no! It turns out that the recycling company does not separate out deposit bottles from other ones. Scandalous, I know. So all the bottles just get melted down. The prosecutor asked the recycling firm how much value the bottles would have as recycling material, and the firm said: basically, it's too small to even put a number on.

At this time, the prosecutor chose to halt the proceedings (einstellen) based on the idea that there was no public interest in prosecuting the offenders. The writer at lawblog thinks this was the wrong reason to stop the prosecution — he thinks a better theory is to deny the people had any attempt to commit theft, because they had no intent to take possession of the bottles — their ultimate goal was simply to transfer them to a different owner. 

Be that as it may, the main thing to notice here is that several different government employees spent hours of their time and used considerable resources to investigate an accusation of a crime which, at the very most, involved the lordly sum of € 1.44. It's probably only a slight exaggeration to say that the German state spent 1000 times more money investigating the theft than it was actually worth in the first place.

Now, am I going to snigger about this? Of course I am, and so are you. But at the same time, I'm not going to go too far. The most important thing to keep in mind about high numbers of lawsuits is that they are an important sign of social health. In the vast majority of societies, lawsuits are prohibitively expensive and courts are woefully underfunded and corrupt, so nobody trusts them. Germans and Americans trust courts to usually resolve legal disputes in a fair and equitable manner, otherwise they wouldn't seek them out so often. They're right to do so; both the USA and Germany have exceptionally fair and efficient legal systems, despite their imperfections. A fair, professional, and generally non-corrupt legal system is one of humanity's most important achievements, full stop. Most countries don't yet have one. If you happen to live in a country which does, take a moment and thank your lucky stars. 

* You'd be surprised how many Germans decide they just don't fancy showing up to work anymore and having someone boss them around and tell them to do things. So they develop something hard to pin down, such as a bad back or burnout stress, hire a good employment lawyer, and presto! They're still technically employed in a certain sense, but they don't actually have to, you know, do anything. Everybody wins: their former employers are free of someone who wasn't really contributing, the employee has all the free time he wants, and most importantly, the government doesn't have to formally add this person to the unemployment rolls. Northern European welfare states are notorious worldwide for using a million different tricks to lower their official unemployment rate, and this is just one.

** Some German lawyers, or wanna-be lawyers, believe a lot of adorably misguided things about the principle of legality. If you begin talking about the American legal system, they will get up on their hind legs and begin intoning something like this: "Well, you see, in America most criminal cases are resolved by plea-bargains, where the defendant admits a crime — quite possibly not the one he actually committed — in return for a lighter sentence. This shows the irresponsible, frivolous gamesmanship of the system, where the objective truth of what happened can be bargained away as if justice were nothing more than a poker game. Here in Germany (string music starts swelling in the background), we believe in the principle of legality, which means the prosecutor must investigate all crimes and must prosecute based on the objective facts of what the defendant actually did."

It's at this point that I usually interject to point out that this speech is, not to put too fine a point on it, a crock of shit. First, German prosecutors are absolutely not obliged to bring every case to prosecution. As with all German legal principles, the principle of legality has a pragmatic loophole so big you could fit Saturn through it. A prosecutor is always permitted to "suspend" (einstellen) a prosecution if it is deemed a petty offence (§ 153, Criminal Procedure Code). Suspend is yet another German euphemism, it means the case is dropped. Although there may be a tiny theoretical chance of it being re-started, this basically never happens.

There are many other sections of the Code that permit the prosecution to suspend the investigation or to not bring charges on a variety of different grounds, the most frequently used being the prosecution's belief that bringing charges is "not in the public interest" for some reason. As you might guess, there are hundreds of stories of prosecutors suspending prosecution of high-powered or well-connected people for vague reasons. In fact, there's a whole book (g) ("Prosecution Unwanted!") about this, although it's not very convincing overall.

Also, if you believe plea bargains don't exist in Germany, I've got a bridge in Moscow I'd like to sell you. Even before plea bargains were legally allowed in Germany, it was common knowledge that prosecutors used their huge discretion to plea-bargain all the time. Like American prosecutors, German prosecutors are hopelessly understaffed, and the entire justice system would collapse if cases couldn't be resolved informally.

The practice became so notorious that eventually the federal legislature decided to stop pretending and legalize it. In 2009, it passed a law which, for the first time, legally recognized plea-bargaining in Germany. The law was full of procedural safeguards meant to ensure that the defendants' rights were respected and the principle of legality was not undermined. Would the law pass constitutional muster? The German Federal Constitutional Court held that it did, in 2013:

Bambi’s Friends the Communist Spy and the Viennese Whore

Bambi

[from the extremely NSFW website Slutbambi]

If you're a fan of Roald Dahl, you know that in addition to the beloved children's classics such as James and the Giant Peach and Charlie and the Chocolate Factory, he also published a collection of erotic stories entitled Switch Bitch.

But that's nothing compared to what the author of Bambi got up to. Bambi was originally published in Austria in 1923 as Bambi, eine Lebensgeschichte aus dem Walde (Bambi, a Life in the Woods) by the Austrian writer Felix Salten.

Now before we get to the Viennese whore, it's time for a detour to visit with the Soviet spy. Bambi was translated into English in 1928 by none other than Whittaker Chambers, one of the most notorious American figures of the Cold War. Take it away, Wikipedia:

Whittaker Chambers … was a 20th-Century American writer, editor, and Soviet spy.

After early years as a Communist Party member (1925) and Soviet spy (1932–1938), he defected from communism (underground and open party) and worked at Time magazine (1939–1948). Under subpoena in 1948, he testified in what became Alger Hiss's perjury (espionage) trials (1949–1950) and he became an outspoken anti-communist (all described in his 1952 memoir Witness). Afterwards, he worked briefly as a senior editor at National Review (1957–1959). President Ronald Reagan awarded him the Medal of Freedom in 1984.

But Bambi's unwholesome associations go even further. Long before he wrote the story of the cuddly deer baby Bambi, Felix Salten wrote what one critic called "the only German pornographic novel of world-wide status", the 1906 book entitled Josefine Mutzenbacher, or the story of a Viennese Whore as Told by Herself (Josefine Mutzenbacher oder Die Geschichte einer Wienerischen Dirne von ihr selbst erzählt) (full German text here). The initial printing was subscription-only to avoid censorship laws.

Salten never explicitly admitted authorship of Josefine Mutzenbacher, and because neither he nor the publisher submitted it for copyright protection, it was freely pirated, and remains in print to this day, having sold some 3 million copies to date. It furnished the basis for not one but 11 German soft-core porno films made between 1970 and 1994 (the original film's English title was "Naughty Knickers").

But even that's not all. The original novel itself was put on an "index" of books harmful to minors by the Federal Republic of Germany's Federal Review Board for Media Harmful to Minors in 1969. This didn't mean the novel was banned, but it did severely restrict sales and marketing. The Wikipedia summary of the book's plot may give you an idea of why they made this decision:

The story is told from the point of view of an accomplished aging 50-year-old Viennese courtesan who is looking back upon the sexual escapades she enjoyed during her unbridled youth in Vienna. Contrary to the title, almost the entirety of the book takes place when Josephine is between the ages of 5–12 years old, before she actually becomes a licensed prostitute in the brothels of Vienna. The book begins when she is five years old and ends when she is twelve years old and about to enter professional service in a brothel.

Although the book makes use of many "euphemisms" for human anatomy and sexual behavior that seem quaint today, its content is entirely pornographic. The actual progression of events amounts to little more than a graphic, unapologetic description of the reckless sexuality exhibited by the heroine, all before reaching her 13th year. The style bears more than a passing resemblance to the Marquis de Sade's The 120 Days of Sodom in its unabashed "laundry list" cataloging of all manner of taboo sexual antics from incest and rape to child prostitution, group sex and fellatio.

Adding to the general perversion, Bambi himself makes a cameo appearance in one of those group-sex scenes [no, he doesn't — ed.]. In the late 1970s, a legal campaign was launched to remove the book from the index. In 1990, Germany's Federal Constitutional Court issued a landmark decision on the case.

Although the court acknowledged the book had plenty of potentially child-endangering pornographic elements, including a rather eye-popping amount of pedophilia and incest, it also had literary qualities which qualified it as a work of art, thus entitling it to protection under the artistic freedom provisions of Article 5 of the German Constitution.* The Court decision held (g) that some parts of the youth protection law were unconstitutional infringements of artistic freedom.

Nowadays, Felix Salten is largely forgotten, but that didn't stop the Austrian government from sending an official delegate (g) to the Jewish Museum of Vienna (Salten was Jewish) to open a 2007 exhibition on the man and his work.

* Just so nobody gets the wrong idea: the Court's decision doesn't mean that the book can't be regulated, it just means that the book's qualities as a work of art must be taken into account when balancing artistic freedom against the legitimate government interest in preventing harm to minors.

Mitten in Deutschland — German History X

A huge conglomeration of public and private foundations put together a three-part series on the early 2000s murder spree of the National Socialist Underground called Mitten in Deutschland (In the Middle of Germany) in Germany and German History X when it was released by Netflix with English subtitles.

It's basically a trilogy of feature-length movies. I found it surprisingly good. German television and movies punch below their weight in general, but have shown some intermittent signs of improvement in recent years. Deutschland '83 is much more than watchable, and so is German History X. 

The first movie, about the formation of the 2-man one-woman 'trio' which formed the core of the NSU, shows the protagonists coming together in the 1990s neo-Nazi scene in Jena. The three core performers are stellar. The film also does a fine job of demonstrating how young people in the damaged, demoralized East often sought fellowship and a sense of purpose in violent Nazi groups. The second movie focuses on the victims, and is held together by a strong performance by Almila Bagriacik, who emerges from adolescence under the shadow of the murder of her father. The police immediately seek the killer in the 'milieu' of foreign small businessmen, without considering the possibility of a terrorist motive even after numerous other foreign shopkeepers are killed with the same weapon used to kill the first victim. 

The final movie, which focuses on the investigation, is the slackest of the bunch. This is hard to avoid, since the subject is, by definition, an investigation that went nowhere. The early-2000s murder spree of the three NSU members was discovered only posthumously, when two of them committed suicide after a botched 2011 bank robbery, and the murder weapon was found in their accomplice's apartment. The third movie paints a picture of detectives who develop solid leads, only to be frustrated by the machinations of the Thuringia state Verfassungsschutz. The Verfassungsschutz claimed to have deeply infiltrated the groups supporting the NSU trio, and fought against any arrests, questioning, or surveillance which could theoretically blow their agents' cover. Which meant, in the end, that they provided an enormous amount of cover, and even financing, to out-and-out Nazis who were committing sundry violent crimes. The movies' clear implication is that the Verfassungsschutz was operating at least in part out of sympathy for the right-wingers' goals.

The English translation of Verfassungsschutz in the movies was "secret service", which obviously doesn't do justice to this peculiar organization. English-language viewers certainly missed many of the implications of what was shown in the third film. Basically, the "Agency for the Protection of the Constitution", as the title means in English, is an originally West German domestic spying and intelligence agency. As its name implies, it is theoretically supposed to monitor, document, report on, and suppress any nascent threats to the German constitutional order. This includes right-wing and left-wing extremists, religious organizations, and cults. Each German state has one of these agencies, and there is a federal one as well. To call them controversial is an understatement — they are often accused of putting far more energy into surveillance of left-wing militants than right-wing groups, and are also accused of chilling free speech by singling out politically-charged organizations and publications for scrutiny in their public reports. In fact, the right-wing weekly newspaper Junge Freiheit – successfully sued to prohibit the Verfassungsschutz from mentioning them in its reports.

The agency has also been involved in innumerable scandals involving — at the very minimum — incompetence. The most recent in a very long list is the hiring of Roque M. (g) — a German citizen of Spanish descent who was hired as a Verfassungsschutz spy in the State of Northern Rhine Westphalia despite a history of mental instability and bizarre behavior, such as acting in gay porn films even though he was a married father of 4, running his own gay porn publishing house, running a website selling "German Military Underwear. Strong. Manly. Sexy.", and converting to radical Islam. The Verfassungschutz – apparently unaware of the possibility of running a Google search — only found out about him when he bragged about being a mole in the agency and working on plans to destroy it in an online forum which was being monitored by his co-workers.

In fact, the picture of the German law enforcement authorities in all of the films is devastating. The Keystone Kops of East Germany let the three neo-Nazis go underground even after finding bombs and weapons in one of their hideouts. Cops invent a hare-brained drug-smuggling conspiracy theory to explain the totally unrelated murder of ethnic-minority shopkeepers all over Germany with the exact same weapon. (Although this isn't mentioned in the film, they also chased a phantom serial killer whose existence was based on botched DNA testing). Their attitude toward murder victims' surviving relatives is callous in the extreme; Germany still has only a vestigial state infrastructure for providing counseling and care to surviving family members of murder victims. And in the third movie, the police actively allow and sometimes even assist neo-Nazis to commit violent crimes and spread propaganda, either out of incompetence or covert sympathy for their goals.

The general portrayal of police agencies is counterbalanced by sympathetic portrayals of individual cops, but they are seen as constantly having to fight against institutional blindness, rivalry, and silo-mentality thinking. When they're not fighting against moles in their own and other agencies who actually intentionally assist the neo-Nazis. The picture of police is probably a bit exaggerated, but there is no doubt much of it was justified — there are still dozens of very strange unanswered questions surrounding the fruitless investigation of the NSU murders. And, given the authorities' mania for secrecy and the lack of a culture of vigorous investigative journalism fed by leaks from inside the government, they'll probably remain unanswered forever.

Germans Ignore Dying Man in Bank Despite Law Telling them to Help

Inore

The police in Essen reported (g) on a case in which an 82-year-old man collapsed to the floor of a branch bank in Essen, Germany in early October. At least four people were seen on security cam footage simply walking over his body without offering help or calling an ambulance. The man was eventually taken to a hospital, where he later died. The police are now investigating these persons for failure to render assistance, which is a crime under German law. Section 323c of the Penal Code:

Whosoever does not render assistance during accidents or a common danger or emergency although it is necessary and can be expected of him under the circumstances, particularly if it is possible without substantial danger to himself and without violation of other important duties shall be liable to imprisonment not exceeding one year or a fine.

In common-law countries such as the United States, the law imposes no duty to rescue strangers. As long as you didn't cause the emergency and the bear no special duty to the victim (as a guest or relative, etc.), the law will not punish you for ignoring him. There are a number of justifications for this doctrine, both theoretical (you can't be held responsible for injuries you didn't cause), and moral (the state should trust its citizens to do the right thing uncoerced).

This is one of the most obvious differences between common-law systems and civil-law systems such as the ones in most European countries. When I was teaching, many of my German students professed to find the common-law doctrine shocking or cold-hearted. It's not hard to detect the attitude behind this: the still, small voice in every German's head which whispers: "Despite the recent unpleasantness, Germany is a more decent, moral, caring and sensitive society than all others in the world, except maybe Sweden, but at any rate definitely more caring and 'social' than the selfish, dog-eat-dog United States."

Am deutschen Wesen…*

The students assumed that the existence of a law requiring help made Germany a more caring place, and that it affected Germans' behavior toward one another. This is another typical German attitude — the notion that once a law has been passed to address a problem, the problem no longer exists.

Alas, I had to shatter their precious smugness idealism.

Studies show that 'duty to rescue' laws have no effect on whether people rescue their fellow humans in need. In the United States, where the law says you don't have to try to rescue people, a huge majority does exactly that, often risking their own lives:

As Table 3 reflects, there are approximately 1003 non-risky rescues (cell 2) and 263 risky rescues (cell 4) per year in the United States. Thus, verifiable rescues outnumber non-rescues by almost 800:1. If one loosens the standard for rescue only slightly, to encompass instances of rescue that were reported in a newspaper but did not pass initial screening by the Carnegie Hero Trust Commission, the ratio increases to approximately 1400:1.

Approximately 100 Americans lose their lives every year as a result of attempting to rescue someone else. Thus, even in the absence of a duty to rescue, deaths among rescuers outnumber deaths attributable to non-rescue by approximately 60:1 every year. Stated differently, there are six times as many rescuer deaths every year as there are deaths attributable to non-rescue in the past ten years combined.

Finally, injury is common among rescuers. Aggregate figures are unavailable, since most of the data sources did not separately track injury, but in those that did and as detailed below, a substantial percentage of risky-rescuers and a significant number of non-risky rescuers were injured – sometimes quite severely.

This isn't to say that Germans are more cold-hearted than Americans. Why, just five days ago, a staff member on a German Rhine cruise ship jumped into the cold water to rescue a woman who had fallen off a bridge into the Rhine (g).

The point is first, that law on the books, as usual, has little to do with what happens in the real world. Second, that laws drafted by tiny commissions staffed by elites (such as law professors) and then passed word-for-word by the national legislature do not necessarily reflect "the values of our civilization".

Points worth remembering!

*For German speaking readers, this short German phrase conjures up a universe of associations. For my non-German-Powered™ readers, here's a brief explanation. The words come from a paraphrase of a line in a 19th-century poem by the nationalist poet Emanuel Geibel: “Am deutschen Wesen soll die Welt genesen”. This roughly translates to "German values shall cure the world." I.e. shorthand for a particularly pompous notion of German national superiority.

This wasn't Geibel's original meaning. His original poem "Germany's Vocation" (from which the phrase is adapted), was meant as a rallying cry to the various small German-speaking principalities to unify themselves into a single German state. This unified state would then synthesize the best customs and political ideals of all the individual duchies and statelets into a new political organization capable of protecting German interests and encouraging healthy and moderate customs among the German people.

Ever since the phrase was misused by Kaisers and dictators, poor Geibel's been associated with German nationalism. This is the same fate as the phrase "Deutschland über alles" (Germany above all). It was originally a rallying-cry for German unification — i.e., let's stop putting the needs of our small local community first and unite to put the needs of the German-speaking peoples as a whole first, by unifying into a single, strong country.

So much misunderstanding of Germany comes from the fact that people don't know that modern Germany only emerged from a dizzying patchwork of small states into a national entity in 1871. And that this process took decades, was extremely controversial, and that the people in favor of unification were among the most progressive and liberal forces in society.

German Police Can Seize Your Phone and Arrest You If You Film Them

Via Udo Vetter's excellent lawblog, this police report (g) from Bamberg, Germany:

Early Saturday morning, a person on the Schönleinplatz was halted by police for a check. The 29-year-old student refuse to tell police his personal information and began filming the policeman. He was informed that this was not allowed and constitutes a criminal offense, but the man nevertheless continued. 

As his mobile telephone was being seized, the man resisted officers and was arrested.

He has been charged with resistance against peace officers.

Vetter believes the charges should be dropped, since the police officer's claim that filming him was illegal was incorrect, and citizens are permitted to resist illegal police actions. However, the comments reflect a wide variety of views about whether filming the cop was in fact legal or not, and if not, whether it could be a criminal or civil offense.

The upshot: if you attempt to record police officers in Germany, they may seize your phone and arrest you, and you will only find out your actions were justified after a long and expensive legal proceeding. This is practically the definition of 'chilling effect'.

It's long past time for Germany to pass a law making it absolutely clear that any citizen has the right to film and broadcast any police officer in the performance of his or her duties, no matter what, under any circumstances, as long as the filming does not interfere with performance of the officers' duties.

You Think X is a Human-Rights Violation. You’re Wrong.

A quick note to Germans: Stop calling every policy you disagree with a 'human-rights violation'. There's a solid consensus on what human rights are. They only cover the big things, not every aspect of government policy.

The requirement to send your children to school (g), to pick one of 10,567 examples, is not a human-rights violation. In fact, it's precisely the opposite. Nor is deporting illegal immigrants.

When you claim some government action is a human-rights violation, you're wrong 90% of the time. I can and will prove it.

Stop chuntering about human rights this, human rights that. If you disagree with a policy, just tell us why.

I hope this has been helpful!

Böhmermann is Guilty

There's only one way in which I care about the Erdogan thingy — as a pretty interesting legal puzzle. As for all the self-righteous German bloviation about Freedom of Speech, The Whims of a Despot, etc. — that's all a bunch of hooey nobody except a tiny journalistic elite cares about.

From a purely legal perspective, there's a good case Böhmi should be found guilty and fined. Just so nobody don't get the wrong idea, let me explain that I find the 'insulting foreign leaders' law silly, and believe Germany should have got rid of it a long time ago. I also have doubts about whether a modern legal order needs the category of 'abusive criticism' (Schmähkritik). I am talking here descriptively about German law as it is, not as I might wish it to be.

And under these laws, Böhmi's guilty. The 'insulting foreign leaders' law will obviously be interpreted in light of artistic and political freedom guaranteed by the German Basic Law. But here's the thing: artistic freedom, satire, etc. have limits. German magazines can be and have been punished for satire that 'goes too far' (I'm lookin' at you with admiration, Titanic). The key distinction is whether there is a 'Sachbezug' — roughly, some relationship to a recognized political or social issue. It's a weighing test: the severity of the insults against the strength of the relationship to a legitimate subject of debate.

Böhmi's 'poem' fails. It wasn't a puppet-show, or a song, or a sketch, or even a straightforward political commentary. It is nothing more than a collection of racist insults that go far beyond what German law permits in any case. Goat-fucker, kiddie-porn devotee, carrier of gang-bang related sexual diseases, etc. All of these insults are illegal in Germany, even when used sarcastically and even when nobody could be expected to believe there was truth in them. That's how German law works. If Böhmi had said these things about a private persons on national television, it is 100% absolutely ironclad certain he would be convicted. There are literally hundreds of cases on exactly this subject. There was only a brief mention of political issues in the 'poem'. Böhmermann himself, as he read the poem, said that it was illegal. He even entitled it 'Schmähkritik' (abusive criticism). Böhmi consciously, knowingly, by his own admission engaged in conduct that is against the law in Germany. 

And if this argument doesn't convince you, let's do a Gedankenexperiment: Böhmi reads a poem about the Israeli President Reuven Rivlin calling him a 'dirty Jew', 'child-murderer', a 'racist warmonger', and a 'fat, malodorous pig'. That is the level of rhetoric directed at Erdogan. Would German politicos and journos be whining about freedom of expression and kowtowing to foreigners? Of course not. Any judge worth his salt, however, will see that these two cases must be treated equally, if the idea of a principle-driven legal system is to have any meaning at all. The issue isn't which foreign leader was targeted, it's what was said.

So he should be found guilty, and I think he will. This is not a case about freedom of expression. This is a case about whether a person who publicly announces he is going to break the law and then does so should be punished. The answer is, and should be 'yes'. The best analogy here is to Joseph Gibbons:

Artist and former MIT professor Joseph Gibbons learned this week that robbing banks, even in the name of art, will still land you in jail. He pleaded guilty to burglary in the third degree this week in a Manhattan court.

Gibbons was arrested in January for a heist staged on December 31 at a Capital One bank in New York's Chinatown. According to court documents, he made his demands for cash in the form of a polite note asking the teller for a donation for his church, and then took $1,000 (see Artist and Former MIT Professor Robs Banks Claiming It's His Art).

In November, Gibbons held up a bank in Rhode Island using the same method, and made off with $3,000.

Both times, Gibbons videotaped the theft. “He was doing research for a film," his cell-mate, Kaylan Sherrard, told the New York Post. “It's not a crime; it's artwork…He's an intellectual."

Gibbons went to jail because freedom of expression does not cover illegal activity. That's just as true in Germany as it is in the U.S. Whether you agree with Germany's restrictive freedom-of-expression laws or not, Böhmi broke them.

 

German Voting Law Explained

It's election time in Germany! I'm not a citizen, so I can't vote. But for those of you who can, I've prepared a short explanation of German voting law. It has the reputation for being complex, but as I plan to show you, that's undeserved. There are just 5 basic rules.

  1. If the direct-mandate candidate you vote for wins a majority of the votes, he or she wins. The second-choice vote you cast is ignored.
  2. If the party you voted for with your first vote only earns a plurality, then there will be a run-off between the direct-mandate candidate of the second-list party and the incumbent. If another party gets more than a percentage determined by the Glöcksteiner-Levchinavülius tensor function, that party can also nominate a candidate for the run-off.
  3. If the party whose direct-mandate candidate doesn't win nevertheless wins a majority of the first-round popular vote, then extra seats will be created in the legislature. The number of extra seats is determined by the Sloterdijk-Schweinsteiger transform, where z is the log of the discrepancy between the direct-mandate candidate's loss margin and the square of his or her party's winning margin:  Eq0078L
  4. If the direct-mandate winner loses the run-off election but wins over 30% of the vote, the result will be determined by the procedure known as Überhangsmandat. Since this process requires reserving time at the JUGENE supercomputer at the Forschungszentrum Jülich in North Rhine-Westphalia, results will not be final until late 2018.

That about covers it. Enjoy voting!