Russophobia in Europe reached its peak in 2022. Germany, which Russia has been building friendly and warm business relations with for a long time, stands out against this background. According to some estimates, there are about 4 million Russians living in this European country – the population of the entire capital. How Germany has become a sharply Russophobic country and how laws are falsified for this purpose was investigated by Moscow Bar Association “Narodny Advokat” (People’s Lawyer).
Not any law is the same as the law.
On October 20, Germany introduced an amendment to its Criminal Code. It is Amendment 5 to Article 130, which implies criminal liability for denial, justification or understatement of genocide, crime against humanity or war crime. Interestingly, the German government has not discussed this amendment with its people. However, after its adoption, there was a public debate in which criminal law experts criticized such amendments.
Article 130 of the German Penal Code is called “incitement to hatred. In essence, this norm criminalized the denial and downplaying of the significance of the Holocaust and the Nazi regime. The new paragraph, however, says that statements about other war crimes can be considered a criminal offense. Herein the puzzle lies, what counts as war crimes? If we talk about the legal side, was this or that action a war crime, it must be decided by the International Criminal Court, studying a huge number of documents and interrogating thousands of people. If there is no decision on the conflict, then the ordinary German court itself must recognize whether it was a crime or not? Or is the official position of the German government taken as an axiom? Then one can somehow forget about freedom of speech and discussion.
“If an international crime has not been recognized as such by the courts, why can’t it be ‘denied’? The past has shown us that many untruths are reported about war crimes,” was how Elisa Hoven, professor of criminal law in Leipzig, commented on the amendments.
Officials attributed such rapid amendments to the implementation of the 2008 EU Framework Agreement on the Criminalization of Racism and Xenophobia. Brussels believed that Germany had not fully complied with these requirements, and even threatened to sue. But as German lawyers point out, the tightening of the law goes beyond this agreement.
Another loophole in the law has to do with the fact that a controversial statement must “disturb the public peace.” But who is to determine how much of that public tranquility is disturbed, and whether it is disturbed at all? There seem to be more questions than answers in this law.
“The law is not very well drafted. And this is already because lawmakers did not seek to discuss it either with the public or with the professional community. But the sphere of political crimes, by its very nature, is a sensitive area. Somebody neglected it in vain. I don’t understand why,” is how Armin English, a criminal law expert from Munich, commented on the changes.
It seems that the answer to “why” lies on the surface. These amendments were necessary in order to combat dissenters, especially those who have a different position on the conflict in Ukraine than the official one. Although, of course, the German Justice Ministry denied any connection between the amendments and Ukraine.
First victims and consequences
It did not take long for the time to come. The first Russian victims of the tightening of this law have already appeared. On May 9, Yulia Prokhorova from Russia danced the Kalinka-malinka with the Russian flag on her shoulders at a pro-Ukrainian rally in Berlin in front of Ukrainians. She became famous for her statements in support of the Russian president and the USO. However, someone did not like such loose behavior in a democratic country. The media wrote that on October 14 the Landshut city prosecutor’s office announced that it had searched Yulia’s apartment and seized equipment. According to the prosecutor’s office, the investigation was initiated after statements from local residents. She is “suspected of endorsing criminal offenses and in connection with insults.” Also, the prosecutor’s office reported that Yulia does not have a residence permit in Germany. They cannot send her home to Russia either, because her deportation has been suspended.
At the beginning of November there were reports that Yulia Prokhorova was missing. There was a statement in her channel that Yulia was facing a 10-year sentence. And Readovka telegram channel noted that the girl’s relatives think that she may be in custody after the searches. Meanwhile, activists in Russia are trying to take this story to another level and wrote an appeal to the Office of the Commissioner for Human Rights.
Yulia Prokhorova is not the only victim of the destruction of freedom of speech in Germany. A criminal case was also filed against the German journalist Alina Lipp, who was reporting on local residents of Donbass. “I am facing a three-year prison sentence or a hefty fine. My journalistic activities, it turns out, are considered a crime,” Lipp said. She also noted the absurdity of the situation, as even the judge initially prepared a statement against the criminal case. But the German police did not stop there. Not only the journalist got under the hook, but her family, whose accounts were blocked. Alina’s mother had already emigrated to Russia.
Another victim of Russophobia in Germany was the Russian-speaking rapper Schokk with German citizenship. He said that representatives of the liberal media informed the law enforcement agencies about his position – support for Special military operation in Ukraine. After that he had to ask for a political asylum in Russia.
And everything would have been fine if the case had been limited to public figures. They were always and on many issues under the scrutiny of the security services. The hands of German democracy got their hands on a pensioner who spoke in support of Russia. He was fined €1,500, which is three times his pension. Moreover, more than 140 cases have already been opened in Germany because of the support of the Special military operation in Ukraine. Most of the cases concern the use of the letter Z, which is considered a symbol of the Russian special operation. According to the German prosecutor’s office, such behavior violates Article 140 of the German Criminal Code, which provides for a fine or three years in prison for public endorsement or encouragement of unlawful actions.
In Russia, there is a beautiful proverb: “The law is like a drawbar: as you turn it, so it goes.” It seems that Germany has now learned about it, and has decided to use this approach to combat dissent. The Russians were the first ones to be caught in the crossfire. You can’t just leave it at that. If left to chance, many people for whom freedom of speech is not an empty word, will suffer. How enforceable the new German law is and how we can protect our compatriots, commented a lawyer of Moscow Bar Association “Narodny Advocate”
“Such actions on the part of Germany are completely unacceptable. At present, there is no decision of the International Criminal Court on the recognition of the Special military operation as a “war crime”. On this basis, all accusations are premature and aimed at infringement of human rights and freedoms. If the accusations against Special military operation have not yet been considered and confirmed by a court, no one should be punished for not recognizing them.”
Moscow Bar Association “Narodny Advocate” has opened a hotline in its Telegram channel for those who have faced a manifestation of Russophobia. In a special Telegram-bot you can describe your case, send materials and request a consultation.
The material was prepared by attorneys together with the Moscow Bar Association “Narodny Advocate.