Judgement of 12.12.2000
1 StR 184/00
"Auschwitzluege " in the InterNet
JurPC Web Dok. 38/2001, exp. 1 - 70
StGB §§ 9 exp. 1 3. Old, 130
If a foreigner places to expressions written by him, which fulfill the facts of the
incitement of the masses in the sense § to 130 exp. of the 1 or § 130 exp. the 3
StGB ("Auschwitzluege ", on a foreign server into the InterNet, which is
accessible to InterNet users in Germany, then a success belonging to the facts
steps (§ 9 exp. 1 3. Alternative StGB) in the inland, if these expressions are
concretely for the disturbance of the peace in the inland suitable.
Besides the regional court the accused because of offense in concomitance with
reviling the memory of the deceased in three cases, in a case (II.2) in further
concomitance with incitement of the masses, to a total imprisonment of ten
JurPC Web Dok.
38/2001. Exp. 1
The public prosecutor's office attacks the verdict of guilty in the cases of
InterNet II.1 and II.3 with the reason which accused would have had to be
condemned also in these cases because of incitement of the masses with its
revision inserted to the disadvantage of the accused. Besides it complains of the
fixing of the penalty. The accused raises a procedure verfahrensruege and the
general special sachruege. The revision of the public prosecutor's office has to
that extent success, when the condemnation is erstrebt also because of
incitement of the masses; the revision of the accused has success with a
I. The 1944 in Germany born accused is Australian citizen. It emigrierte 1954
with its parents to Australia. After it had studied philosophy, German and
English there, it came 1970/1971 to Germany, where it was active as teachers
at a werkschule. Subsequently, it studied in Germany. it went 1977 to Africa,
1980 returned themselves it to Australia and was there as a teacher active.
1996 united the accused with Gleichgesinnten in Australia to "the Adelaide of
institutes " its director it are since 1992 dealt with themselves it with the
Holocaust. It written circulars and articles, which accessible over the InterNet it
made, in which it "represented " revisionistic theses. Therein under the pretext
of scientific research the murder of the Jews committed under the rule of the
national socialism was denied and represented as "invention of Jewish " sets,
which wanted with it financial demands to implement and Germans politically
II. Three publications of the accused are the subject of the condemnation:
1. Case of InterNet II.1: Between April 1997 and March 1999 - the exact
point in time is not determined - the accused stored web pages on an Australian
server, which could be recalled of the homepage of the Adelaide of institute
over its InterNet address. These pages contained three English-language
articles the accused with the headings "over the Adelaide Institut " "Eindruecke
von Auschwitz " and "more impressions of Auschwitz " Therein it means among
other things: "In the meantime we stated that the original number of four million
dead ones of Auschwitz was lowered... on at the most 800,000. This alone is
already a good message, means it nevertheless that approx. 3.2 million humans
in Auschwitz did not die - a reason for celebrating. " "We explain proudly that it
gives to today no proof for it that millions of humans in people gas chambers
were killed. " "None of these statements was occupied ever by any facts or
written documents, with exception of the doubtful testimonies, from which
frequently fiebrigen brains rose, which refrained it on a pension from the
German state. "
2. Case II.2: In August 1998 a Amtsrichterin Guenter Deckert condemned,
because these max Mannheimer, had insulted a survivor of Auschwitz.
Whereupon the accused from Australia wrote "an open letter " to the Richterin
and dispatched this at the same time to numerous further addressees, also to
Germany, among other things to the citizens of Berlin magazine "Sleipnir " It
stopped the English-language text of the letter into the homepage of the
Adelaide of institute. In the letter he accused Mannheimer to tell lies over
Auschwitz and he wrote among other things: "I visited Auschwitz in April 1997
and arrived now due to my own investigations at the conclusion that stocks had
people gas chambers in operation in the war years never. "
3. Case of InterNet II.3: At the end of December 1998/Anfang January 1999
adjusted the accused a further web page into the homepage of the Adelaide of
institute. This page contained a English-language article the accused with the
heading "Fredrick Toebens New Year thought 1999 " Therein it means among
other things: "In this first month of the last but one yearly of the turn of the
century we can look back on a five-year work and determine with security: the
Germans destroyed never European Jews in deadly gaskammern in the
concentration camp Auschwitz or at other places. Therefore all Germans and
ethnic German without the forced upon debt complex can live, with which them
enslaved a malicious way of thinking a half century long " "even if the Germans
to draw a deep breath now to be able, must them on the fact nevertheless make
itself calm that they are further diffamiert since people do not change such as
Jeremy Jones of the organized Jews of Australia over night fundamentally. Their
Auschwitz club was a good instrument for it, which they swung against all those,
which do not agree with their political conviction, around it ‚funktionsfaehig to
make ', how Jones expressed itself. "
The regional court could tighten the web pages mentioned with the cases of
InterNet neither that the accused on its part would have selected elsewhere
from on-line subscriber in Germany or, in order them to transmit to pushen ("",
still that - except the determining police officer - InterNet users in Germany the
homepage of the Adelaide of institute had selected.
III. The regional court appreciated the publications of the accused legally as
1. In all three cases the regional court condemned the accused because of
offense (the survivor Jew) in concomitance with reviling the memory of the
2. In all three cases the accused denied the pursuit fate of the murdered and
survivors passengers of the concentration camp Auschwitz. In the cases II.1
and II.3 he called the Holocaust an invented argument for the acquisition of
political advantages and in the case II.3 additionally also for the acquisition of
By the public accessible making intended from the beginning this justified hurting
offenses and reviling the accused also the danger at the same time that thereby
the public peace was disturbed. Its in the InterNet placed article was suitable to
disturb the safety feeling and the confidence into right security in particular the
Jewish fellow citizens sensitively.
That fulfills the facts of the incitement of the masses after § 130 exp. 1 NR. 2
StGB. But only in the case II.2 (open letter) a condemnation can take place
also because of incitement of the masses. An inland act would be present only
here, to which German criminal law applies. To the cases of InterNet (II.1 and
II.3) do not apply the German criminal law meanwhile, as far as it concerns the
incitement of the masses (§ 3 StGB). To that extent no native place is given,
because concerned to the act (§ 9 StGB) (§ 9 exp. 1 1. Old. StGB) has the
accused only into Australia, and a success belonging to the facts (§ 9 exp. 1 3.
Old. StGB) cannot give it with an abstract Gefaehrdungsdelikt like the
incitement of the masses. Also otherwise (§ § 5 to 7 StGB) do not apply the
German criminal law.
Press-legal verjaehrung did not occur also with the case II.1 already, because
no Presseinhaltsdelikt is present, because it does not concern the physical
spreading of punishable contents gegenstaendlich bound to a printing unit (viz.
BGH NStZ 1996, 492).
C Revision of the accused
The revision of the accused has success with a procedure verfahrensruege.
I. That is the basis the following procedure happening:
1. Attorney B. the appointed defence counsel of the accused before the
regional court, had been condemned on 25 March 1999 because of incitement
of the masses because he had placed a proof request in another criminal
procedure against the there accused Deckert, with which it the genocide at the
Jewish population under the rule of the national socialism had played down. The
Federal High Court in the revision main negotiation from 6 April 2000 rejected
the revisions of the public prosecutor's office and the accused (BGHSt 46, 36).
2. Under note to appeal proceedings pending against him the defender had
therefore on 3 November 1999 - still before beginning of the two-day main
negotiation on 8 November 1999 - its wahlmandat laid down and for it asked
not to also order it as defenders because he in the position am not, an efficient
defense to lead. Nevertheless the chairman of the criminal courts ordered 1 NR
on 4 November 1999 attorney B. as a defender after § 140 exp.. 1 StPO with
the reason, this is not prevented to participate in the proper execution of the
criminal procedure by pertinent defense of the accused.
On the first main day of the hearing attorney B gave. after statement of
particulars of the accused an assertion off, in which he stated concretely that he
was not to a substantiated defense able. In the current position it would give for
it - from fear of further prosecution - only the possibility of leaving the main
negotiation or being silent of remaining. It will not leave however the main
negotiation as long as it is assigned to. The responsibility, whether the accused
is pertinent defended, is situated therefore with the chairman. On the second
main day of the hearing the accused placed the request for withdrawal of the
order of attorney B. and on assigning to a in particular designated of other
defender. The suggested defender rejected however the defense because of
work overloading. The order of attorney B. the chairman did not take back.
Attorney B. is not prevented
The bond of trust is evidently not disturbed. In all other respects is the accused the personal situation of its defender admits been; nevertheless he assigned no other defender. Regarding the acceleration requirement do not be possible a withdrawal of the order. Abs. 21 Attorney B. did not place proof requests in the main negotiation; after the conclusion of the hearing of evidence it made no remarks and placed also no request.
3. Attorney B. inserted revision for the accused. After the Federal High Court in the procedure had determined the date against attorney B. for the revision main negotiation, attorney B. the regional court pointed out that on a decision of the Federal High Court only at flow of the reasons of appeal term was to be counted, and requested again the order of another defender. The chairman of the criminal courts rejected the request. In the reasons of appeal writing written by him attorney B. raised only the general special sachruege. It made valid under note to the processes described above, it is prevented to execute the special sachruege more near and requested the order of another defender the further reasons of appeal, in particular the question whether the accused before the regional court was defended correctly. The chairman of the criminal courts let this request unbeschieden. The chairman of the detecting senate has the order of attorney B with order from 25 July 2000. taken back and the accused another defender orders, who the procedure verfahrensruege raised and if into the previous status received re-instatement.
II. With this procedure verfahrensruege becomes the absolute reason for appeal § 338 NR. 5 StPO validly made. Attorney B. was prevented from fear of own punishment to properly and defend the accused effectively. It remained physically present been, in the main negotiation however dormant, especially it did not hold a final address (§ 145 exp. 1 StPO). Abs. 24 III. The senate can leave open whether the absolute reason for appeal § 338 NR. 5 StPO is given (viz. BGHSt 39, 310, 313; BGH NStZ 1992, 503), because both in the decisions of the chairman of the criminal courts over the selection and order and over the Nichtzuruecknahme of the order is situated a procedure offence, on which the judgement can be based. Abs. 25 1. In the iurisdiction of the Federal High Court it is recognized that the order of the chairman, by whom a defender is ordered, when preliminary decision is subject to the examination directly in accordance with § 336 StPO by the supreme court of appeals, because the judgement can be based on it. The admissibility of such ruege does not depend on the fact that the accused caused a decision of the court before. This applies in the same way to a decision of the chairman, with whom the withdrawal of the order was rejected (BGHSt 39, 310, 311; BGH NStZ 1992, 292; NStZ 1995, 296 jew. m.w.N.; viz. also BGH StV 1995, 641; NStZ 1997, 401; StV 1997, 565).
2. The decisions of the chairman hurt § 140 and § 141 StPO and thus the right of the accused to effective defense (viz. also art. 6 exp. 3 letter c MRK). They offended besides against the principle of the fair procedure (viz. BGHSt 39, 310, 312). An important reason was present not to order attorney B. and take its order back. Abs. 27 As important reason for the order or the withdrawal of the order each circumstance is applicable, which endangers the purpose of the defense to protect and the operational sequence correct ensure to the accused one of a suitable assistance, seriously. The welfare service obligation opposite the accused will regularly forbid it to the chairman to order not lead that the defense because of a clash of interest possibly with full application a defender can (BVerfG - chamber - NJW 1998, 444). Abs. 28 With attorney B. was present such a clash of interest obviously. It could not defend the accused unabashedly regarding its own criminal procedure. Since the yardsticks for the boundaries of an admissible defender behavior were not yet of the supreme court clarified in cases of the available type (§ 130 exp. 5 StGB), it could not lead effective defense, because it had to procure to make itself punishable. Abs. 29 IV. For the new main negotiation the senate points out that in the case it will have to be checked II.2 whether apart from the denying facts (§ 130 exp. 3 StGB) also a qualified Auschwitzluege (§ 130 exp. 1 StGB) is present.
D. Revision of the public prosecutor's office The revision of the public prosecutor's office has success with the special sachruege predominantly; also for the incitement of the masses committed do-uniformly in the cases of Internet II.1 and II.3 applies the German criminal law. Abs. 31 I. The expressions in the cases of Internet II.1 and II.3 have people-rushing contents, both after § 130 exp. 1 NR. 1 and No. 2 StGB and after § 130 exp. 3 StGB. Abs. 32 1. In both cases of Internet the so-called qualified Auschwitzluege (BGH NStZ is situated 1994, 140; BGHSt 40, 97) forwards, those the facts § 130 exp. 1 NR. 1 StGB (insult alternative) and § 130 exp. 1 NR. 2 StGB (goading on alternative) fulfills. Abs. 33 a) With obviously untrue factual statements (BVerfGE 90, 241; BGH NStZ 1994, 140; 1995, 340) the fate of the Jews under the rule of the national socialism is not only represented as lie history, but this statement is connected also with the motive of the alleged Knebelung and exploitation of Germany in favor of the Jews. In the case II.1 the qualification becomes in particular clear by the formulation: "... rose from frequently fiebrigen brains, on a pension from the German state refrained. ". In the case II.3 in particular by the formulations " debt complex ", " enslaves " and " Auschwitz club ". Abs. 34 b) Legal mistake-freely the regional court assumed therefore that the expression facts § 130 exp. 1 NR. 2 StGB, at least in the form of insulting (viz. from Bubnoff in process card 11. Aufl. § 130 Rdn. 22), is given. A particularly hurting form of ignoring is present. In the case II.1 by the formulation " a reason for celebrating " enslaved in particular and in the case II.3 in particular by the formulation " with that it a malicious thinking way a half century long ". Since the statements went out on it, hostile feelings against the Jews generally and against the Jews living in Germany to arouse and schueren, is situated also an attack against forwards (BGH NStZ 1981, 258; viz. also BGHSt 40, 97, 100; of Bubnoff aaO § 130 Rdn. 12, 18; Lenckner in Schoenke/Schroeder, StGB 25. Aufl. § 130 Rdn. 7).
c) In addition, after the statements is situated - which was already accused to the accused in the accusation - an incitement of the masses in the sense § 130 exp. 1 NR. 1 StGB forwards (viz. in addition BGHSt 31, 226, 231; 40, 97, 100; BGH NStZ 1981, 258; 1994, 140; of Bubnoff aaO § 130 Rdn. 18; Lenckner aaO § 130 Rdn. ä; Lacquer-he/coolly, StGB 23. Aufl. § 130 Rdn. 4; Troendle/Fi, StGB 49. Aufl. § 130 Rdn. 5, 20b). The statements occupy (viz. UA S. 21) that the expressions were intended for it, an increased, to produce over the bare refusal and verachtung going out hostile attitude against the Jews living in Germany (viz. BGHSt 40, 97, 102). Abs. 36 2. At the same time - which is also accused - an action of the type defined committed under the rule of the national socialism in § 220a exp. 1 StGB denied and played down (§ 130 exp. 3 StGB). The Internet pages personally written by the accused were directly perceptible and thus public for a set of persons, indefinite after number and individuality, (lacquer-he/coolly aaO § 80a Rdn. 2). The denying facts § 130 exp. of the 3 StGB are to 130 exp. 1 in concomitance to the expression facts § of the StGB (of Bubnoff aaO § 130 Rdn. 50). Abs. 37 3. So far beside it the writing spreading facts § 130 exp. 2 NR. 1 letter b StGB to be fulfilled should, it by § 130 exp. 1 StGB is displaced, if the expression is directed - like here - against sections (native) of the population (Lenckner aaO § 130 Rdn. 27; for concomitance also to that extent probably of Bubnoff aaO § 130 Rdn. 50).
4. The prerequisites of the facts exclusion clause § 130 exp. 5 StGB i.V.m. § 86 exp. 3 StGB (viz. in addition BGHSt 46, 36) are not present. The expressions do not serve for to the science, research or teachings (BVerfG - chamber - resolution from 30 November 1988 - 1 BvR 900/88 -; BVerwG NVwZ 1988, 933); they are not protected also by the fundamental right on free expression of opinion (BVerfGE 90, 241; BVerfG - chamber - resolution from 6 September 2000 - 1 BvR 1056/95 -). Abs. 39 5. The suitability for disturbance of the peace is common factual characteristic of § 130 exp. 1 and exp. 3 StGB, which in addition-step additionally to the expression must. Abs. 40
a) With the suitability formula the incitement of the masses becomes after § 130 exp. 1 and exp. 3 StGB a abstract-concrete endangerment gefaehrdungsdelikt (viz. senate in BGHSt 39, 371 jets ionizing for setting free after § 311 exp. 1 StGB and in NJW 1999, 2129 to the criminal offence after § 34 exp. 2 NR. 3 AWG); partly this formform form is defined also than " potential endangerment gefaehrdungsdelikt " (BGH NJW 1994, 2161; viz. also Sieber NJW 1999, 2065, 2067 m.w.N.). Is the designationdesignation designation of subordinated importance; such endangerment gefaehrdungsdelikte are anyhow a sub-group of the abstract endangerment gefaehrdungsdelikte (senate NJW 1999, 2129). Abs. 41
b) For the suitability for disturbance of the peace therefore the entrance of a concrete danger is not necessary (so however Rudolphi in SK StGB 6. Aufl. § 130 Rdn. 10; Roxin criminal law RK Bd. 1 3. Aufl. § 11 Rdn. 28; Schmidhaeuser, criminal law BT 2. Aufl. P. 147; Gallas in the anniversary publication for Heinitz P. 181). By the trial judge however the check is required whether the respective action is drive-suitable with general view (viz. BGH NJW 1999, 2129 too § 34 exp. 2 NR. 3 AWG). Abs. 42 Necessary however a concrete suitability is for disturbance of the peace; it may not only exist abstractly and must - although due to generalizing view - concretely determined its (HansOLG Hamburg MDR 1981, 71; OLG Koblenz MDR 1977, 334; OLG Cologne NJW 1981, 1280; of Bubnoff aaO § 130 Rdn. 4; Troendle/Fi aaO § 130 Rdn. 2; Lenckner aaO § 130 Rdn. 11; Lacquer-he/coolly aaO § 130 Rdn. 19 i.V.m § 126 Rdn. 4; In the anniversary publication for Lackner P. 140). therefore the rebutting evidence of the not given suitability remains strict for disturbance of the peace in individual cases possible. Abs. 43
c) This understanding of the suitability for disturbance of the peace corresponds also to the iurisdiction of the Federal High Court to comparable suitability eignungsdelikten like a setting of ionizing jets free after § 311 exp. 1 StGB (BGHSt 39, 371; NJW 1994, 2161) or the criminal offence after § 34 exp. 2 NR. 3 AWG (BGH NJW 1999, 2129). Something similar applies to bad handling dangerous wastes after § 326 exp. 1 NR. 4 StGB (viz. BGHSt 39, 381, 385; BGH NStZ 1994, 436; 1997, 189). Abs. 44
d) For the suitability for disturbance of the peace it is sufficient after the fact that entitled - therefore concrete - reasons for the fear are present,
6. The acts were suitable to disturb the public peace. Abs. 46
a) Such a suitability is occupied by the past statements. Regarding the information possibilities of the Internets, thus due to concrete circumstances, it had to be counted on it - and whereupon it came also on the accused to the past statements - that admits the publications of a broader public in Germany become. Abs. 47
b) b) The accused pursued the target to spread revisionistic theses (UA P. 3, 4) and it wanted also that everyone could read world-wide and thus also in Germany the articles (UA P. 18; the misleading remarks on UA P. 43 do not contradict that). It wanted to intervene thereby also actively in the forming of an opinion during the spreading of the theses in sets of German " revisionists ", as the " open letter " shows with its distribution circuit in the case II.2. Abs. 48
c) c) It is obvious that in Germany the publications of the accused were easily accessible to each Internet user. The publications could besides by German users in the inland are continued to spread. That even German Internet users - without prejudice to the drawing up in English language - belonged to the addressee set of the publications and should belong, results in particular also from their contents, which have an almost exclusive reference to Germany (about: " we examine the statement that the Germans killed systematically six million Jew "; " hunting season on the Germans is open "; " therefore it all Germans and ethnic German without the forced upon debt complex can live "; " the Germans can be again proud "). Abs. 49
d) d) The regional court therefore assumed rightfully that the accused created a source of danger, to disturb which was suitable, which gedeihliche together between Jews and other subpopulations sensitively and to impair the Jews in its safety feeling and in their confidence to right security (UA P. 21).
I. The German criminal law applies to the abstract-concrete endangerment gefaehrdungsdelikt of the incitement of the masses after § 130 exp. 1 and exp. 3 StGB also in the cases of Internet. Its applicability results out § 3 StGB in connection with § 9 StGB. Because an inland act (§ 3 StGB) is present here, because success belonging to the facts occurred in the Federal Republic (§ 9 exp. 1 3rd alto StGB). Abs. 51 1. The interpretation of the feature " to the facts belonging success " must align itself to ratio legis § the 9 StGB. After the basic idea of the regulation German criminal law - also with Vornahme of the act action abroad - is to find to application, if it comes in the inland to the damage of right goods or to endangerments, whose avoidance is purpose of the respective penalty clause (BGHSt 42, 235, 242; Gribbohm in process card 11. Aufl. § 9 Rdn. 24). Hence it follows that the feature cannot be determined " to the facts belonging success " in the sense § 9 StGB on the basis of the concept formation of the general facts teachings. Abs. 52 2. The Vorverlagerung of the punishability can make the legislator by different arrangements of an endangerment gefaehrdungsdelikts. It can create concrete endangerment gefaehrdungsdelikte (like § 315c StGB), or however abstract-concrete (like § 130 exp. 1 and exp. 3, § 311 exp. 1 StGB, § 34 AWG) and purely abstract endangerment facts (like § 316 StGB). As the legislator determines the charactercharacter character, depends frequently on the rank of the right property and the specific endangerment position. Abs. 53 The fact that concrete endangerment gefaehrdungsdelikte - when sub-group of the success erfolgsdelikte -, where it came to the concrete danger, has a success place, is to a large extent undisputed (viz. only Gribbohm aaO § 9 Rdn. 20 and Hilgendorf NJW 1997, 1873, 1875 m.w.N.). Abstract-concrete endangerment gefaehrdungsdelikte are between concrete and purely abstract endangerment gefaehrdungsdelikten. They are more comparable under the here relevant legal criterion of the success place with concrete endangerment gefaehrdungsdelikten, because the legislator also here one endangerment which can be avoided - which success - in the facts of the standard expressly defines. Whether with purely abstract endangerment gefaehrdungsdelikten a success place would be to be assumed anyhow if the danger implemented itself, the senate does not need to decide.
3. With abstract-concrete endangerment gefaehrdungsdelikten a success occurred 9 StGB in the sense §, where the concrete act can unfold their danger regarding the right property described in the facts. During the incitement of the masses after § 130 exp. 1 and exp. 3 StGB is that the concrete suitability for disturbance of the peace in the Federal Republic of Germany (Collardin CR 1995, 618: particularly to the Auschwitzluege, if the author wants to work in Germany; Kuner CR 1996, 453, 455: to expressions in the Internet; Beisel/Heinrich JR 1996, 95; Heinrich with considerable arguments in GA 1999, 72; similarly Martin ZRP 1992, 19: to transnational environmental umweltdelikten). Abs. 55 a) This corresponds also to the intention of the legislator with creation of the incitement of the masses facts in the year 1960 (viz. in addition strict aaO). Already in the apron of direct people violations it wanted to work against the Ingangsetzen of one historically as dangerously proven self-dynamics and resist the starts (strictly aaO P. 508: " climatic protection "). Abs. 56 With the insertion of the denying facts § 130 exp. of the 3 StGB in the year 1994 the legislator stressed the intention again to prevent " a poisoning of the political climate by the minimization of the National Socialist force and arbitrary government " (report of the legal committee of the German federal daily, BTDrucks. 12/8588 P. 8; viz. also federal minister of the law with the 1. Consultation of the bill for the punishability of denying the National Socialist genocide - BTDrucks. 12/7421 - on 18 May 1994, Plenarprotokoll of the 227. Session of the German federal daily, P. 19671). The legislator wanted to thus before-shift the criminal protection; already the " poisoning of the political climate " should be prevented. The Vorverlagerung of the punishability was also certain - like a storing to the " political climate " it shows - of the fact that a concrete endangerment or a non-standard right property violation could be attributed only very rarely directly to an individual expression (viz. strict aaO P. 512, which points out additionally that the different be only attacked, however not hurt must). Abs. 57 b) Also otherwise the term of the success place is not understood in the sense of the general facts teachings. Abs. 58 Thus the Federal High Court quite considered " a success " belonging to the facts possible with abstract endangerment gefaehrdungsdelikten in the sense § of the 7å record 2 StGB (beginning of beginningbeginning): " with these delikten [ § ] the success of the act occurs 326 exp. 1 StGB, abstract endangerment gefaehrdungsdelikt, that in the occurred endangerment, not in a violation arising possibly later from the endangerment exists at the same time " with committing (BGHSt 36, 255, 257; see also Jaehnke in process card 11. Aufl. § 7å Rdn. 11). Abs. 59 Also an abstract endangerment gefaehrdungsdelikt can be committed by omitting. § 13 StGB presuppose also a success, " to the facts of the Strafges
c) As far as from a common opinion the view will represent, abstract endangerment gefaehrdungsdelikte could not have a success place in the sense § 9 StGB (OLG Munich StV 1991, 504: to the acceptation of stolen goods as simple activity taetigkeitsdelikt; KG NJW 1999, 3500; Gribbohm aaO § 9 Rdn. 20; Troendle/Fi aaO § 9 Rdn. 3; Eser in Schoenke/Schroeder, StGB 25. Aufl. § 9 Rdn. 6; Lacquer-he/coolly aaO § 9 Rdn. 2; Jakob's criminal law RK 2. Aufl. S. 117; Horn/Hoyer JZ 1987, 965, 966; Tiedemann/Kindhaeuser NStZ 1988, 337, 346; Cornils JZ 1999, 394: particularly to the incitement of the masses in the Internet), not always sufficiently between purely abstract and abstract-concrete endangerment gefaehrdungsdelikten one differentiates. In addition, where the view will represent that abstract-concrete or potential endangerment gefaehrdungsdelikte - as Unterfall of the abstract endangerment gefaehrdungsdelikte - would not have a success place (Hilgendorf NJW 1997, 1873; Satzger NStZ 1998, 112), is able to convince that not. Abs. 61 The denial of a success place with abstract endangerment gefaehrdungsdelikten is justified mostly not more near, is based however evidently upon the modified wording § 9 StGB. By 2. StrRG from 4 July 1969 (BGBl I S. entered into force to 717 on 1 January 1975 (BGBl I 1973 P. 909), the success place was described no longer only with " success ", but with " success " belonging to the facts. Since a concrete danger or a danger implementation even does not belong to the facts of an abstract endangerment gefaehrdungsdelikts, also the place of the endangerment cannot be scene. Abs. 62 However the target of the law change was not, a delimitation § 9 exp. 1 of the 3. Old. StGB on success erfolgsdelikte stated to make, like Sieber (NJW 1999, 2065, 2069) convincingly. The feature " to the facts belonging success " should get straight only that the entrance of success in close relationship with the criminal offence stock is to be seen (keel Kiel in: Minute over the session of the large criminal law commission IV, RK, 38. to 52. Session, 1958, P. 20). Abs. 63 With the accommodation (concrete) of the suitability to the disturbance of the peace into the facts § 130 exp. of the 1 and exp. 3 StGB the legislator described meanwhile the close relationship of the entrance of success with the criminal offence stock and determined thus success belonging to the facts. Abs. 64 d) Also the mediating opinions of Oehler (international criminal law 2. Aufl. Rdn. 257), Jescheck (text book of the criminal law RK 4. Aufl. P. 160; not unique Jescheck/Weigend, text book of the criminal law RK 5. To modify Aufl. P. 178) and Sieber (NJW 1999, 2065), which during the here available drop organization to a denial of the success place would lead, are able in the found result nothing.
4. For the application of the German criminal law during the incitement of the masses after § 130 exp. 1 and exp. 3 StGB in cases of the available type also an according to international law legitimizing connecting factor is present. Because the act concerns a weighty native right property, which besides objectively indicates a special reference to the area of the Federal Republic of Germany (viz. Jescheck/Weigend aaO P. 179; Hilgendorf NJW 1997, 1873, 1876; Derksen NJW 1997, 1878, 1880; Martin ZRP 1992, 19, 22). Also the violation of this right property even is to be prevented by this penalty clause. Abs. 66 The expression aeusserungsdelikt after § 130 exp. 1 StGB already protects sections of the native population in the apron of direct people violations and wants - because of the special history of Germany - which Ingangsetzen of one work against historically as dangerously proven self-dynamics. The denying facts § 130 exp. of the 3 StGB have a special reference due to the singularness of the crimes committed under the rule of the national socialism at the Jews to the Federal Republic of Germany (viz. from Bubnoff aaO § 130 Rdn. 45; Lacquer-he/coolly aaO § 130 Rdn. å; Common measure of the advice concerning the European union the fight against racingism and other hostileness against 15. July 1996, Official Journal of the European communities from 24 July 1996, NR. L 185/5). Abs. 67 5. It can remain open whether the accused could have concerned also in the inland (§ 9 exp. 1 1. Old. StGB), if a native Internet user had the pages called on the Australian server and thus the files to Germany " downloaded ". The senate would have however doubts to see one also action working in the inland in the fact that the accused would have availed itself it which can be added of a tool (the computer including the Proxy servers, data lines and the transfer software of the Internets) for - physical - the " transport " of the files in the inland. A transfer in connection with dispatching of the letter (viz. in addition Gribbohm aaO § 9 Rdn. on the data communication of the Internets is appropriate for 39) of developed action term (to broadcast and television transmissions see also kg NJW 1999, 3500) rather far.
The German criminal law applies also to the success erfolgsdelikte of the offense (viz. Troendle/Fi aaO § 185 Rdn. 15; Roxin aaO § 10 Rdn. 102; Hilgendorf NJW 1997, 1783, 1876) and reviling the memory of the deceased (viz. Troendle/Fi aaO § 189 Rdn. 2) in the cases of Internet. The honouring violation (to the boundaries of the liberty of opinion viz. BVerfG - chamber - resolution from 6 September 2000 - 1 BvR 1056/95 -) stepped anyhow with the knowledge acquisition of the determining police officer (viz. BGHSt 9, 17; Troendle/Fi aaO § 185 Rdn. 15; Lenckner aaO § 185 Rdn. 5, 16). Here it concerned not around confidential expressions, of those the State of knowledge provided (viz. BVerfGE 90, 255). Abs. 69 IV. Those § 354 exp. 1 StPO modification of the verdict of guilty in the cases II.1 and II.3, which can be made, leads thus accordingly to the removal of the single punishments imposed in these cases and the gesamtstrafe. Since the verdict of guilty in the case II.2 is not attacked by the revision of the public prosecutor's office, the application punishment imposed in this case was not to be removed, because inasmuch contains the fixing of the penalty no the accused favouring legal mistake