Hacker News new | comments | ask | show | jobs | submit login

Nobody seems to see how Merkel got this thing very right. 1.) Law says: you may prosecute it. So she "allows prosecution", as she also can't ignore diplomatic implication of doing otherwise. 2.) She also declares that the government will get rid of this law. 3.) She will surely not pressure the justice system in this case... 4.) The case will get dismissed as there is no basis for punishment any more (in Germany, you are entitled to be punished under the lesser harsh law when the law changes, and when the law disappears, there will be no punishment).

I think this was an intelligent move. She complied with Erdogans request and in return says a big "F* Y" by eliminating the law and saving the comedian.

So she "allows prosecution", as she also can't ignore diplomatic implication of doing otherwise.

Sure she can. People snub each other in politics all the time (even when they're joined at the hip). It's called "setting boundaries", and letting people know they can only count on so many indulgences from you. In fact, it is precisely through their willingness to take a stand (even at the cost of temporarily upsetting their allies or coalition partners) that stronger politicians distinguish themselves.

But even if she didn't want to offend his sensibilities -- there are bigger issues at play, such as the fact that Erdoğan is not only acting like a bully in this case (as he normally does at home), but is expecting the German government to do his dirty work for him. And hence, tacitly, to take "his" side in the Great War of Values on openness, and freedom of expression.

That's why Merkel got it wrong. What she needs to do is both act to abolish the law and exercise her discretion in declining to prosecute this case.

Regarding the decision she had to make, Merkel had two choices. If she declined to prosecute then she would be making a quasi-judicial decision in a county where judicial decisions are rightly made by the courts, not politicians. In passing the decision to the courts she is, in my opinion, making a clear statement of German values: this is how we do things - with the rule of law.

Which starkly contrasts with Erdoğan's contempt for the rule of law and anything that gets in his way.

The German constitution guarantees freedom of expression and the case will undoubtedly be dismissed when it reaches the courts.

(And I agree that laws such as this should be abolished.)

The law[0] in question specifically says that the federal government has to authorize the prosecution.

[0] http://www.gesetze-im-internet.de/englisch_stgb/englisch_stg...

Just because the law allows to interfere with the prosecution does not make it morally right to interfere with the prosecution.

(By the way, prosecutors are anyway bound to instruction in Germany (usually by the state governments). That doesn't mean the governments should actually use that power.)

The law does not "allow interference", the law requires someone initiating the prosecution. Just because the law allows this does not make it morally right to initiate it.

An authorization to prosecute is not the same as an initiation. The law requires an initiation by the foreign head of state and an authorization of the German federal government. But that's semantics anyway. You should rather ask yourself, why should this law be treated any differently than all the others? It's written into it but that's the best reason one could find.

Because it allows for personal judgment by the german federal government WITHOUT sidestepping the law.

> The German constitution guarantees freedom of expression and the case will undoubtedly be dismissed when it reaches the courts.

The hurdle for civil suits (libel / slander / plain insults) is much lower in Germany. Flip someone the bird and you're 2000 EUR lighter.

> (And I agree that laws such as this should be abolished.)

Yes; it's anachronistic to persecute this as a crime, but as it stands now, I expect a verdict (most likely minimum sentence and parole). Maybe there's a way out by somehow spinning the matter in a way that makes Boehmermann look like he did not intend to actually broadcast the stuff; i.e. claiming that it was accidentally leaked.

I mean, the main issue is that Germany even had a law allowing someone to be punished for this kind of speech. Merkel can't (or won't) let Erdogan get the chance to point out even the slightest hypocrisy when it comes to enforcing laws. If she gives him an inch by not enforcing this stupid one, he can make a mockery of the west when they say anything about the journalistic and civil rights abuses committed by his administration.

Not that they're doing even close to a good job of that right now.

That law is a relict of the time before WW1 when Germany had an emperor. It just got adapted to the democratic system, so that it covers every head of a state. Everybody just forgot about it and it never got used since decades.

It was used a couple times in recent times: Chomeini, the Pope, and others.

>I mean, the main issue is that Germany even had a law allowing someone to be punished for this kind of speech.

Calling the guy a goat fucker? In the US, with the PC sensitivity, you can go to jail for far less...

> In the US, with the PC sensitivity, you can go to jail for far less...

PC sensitivity has nothing to do with legal rights. This is the country that allows protesting soldier's funerals with "god hates faggots"—one of the least pc actions I've ever witnessed—and only restricts the distance at which the protest can take place.

Also, Obama and Erdogan both fuck goats all day long. This might land me in jail in Turkey, but I'm gonna guess most people reading this post (including Obama, if he didn't have better things to do) would roll their eyes and move on.

There are libel laws that might provide some limited personal protection, but this would be civil court and not criminal court.

Surely I won't be jailed for calling anybody -- even our president -- a goat fucker.

Perhaps we may (regrettably) go down that road someday and perhaps there are instances of police overstepping their bounds to regulate "proper" speech, but I'd be willing to bet* my next pay check that being arrested for calling somebody a goat fucker would not hold up in court.

* - OK, not my whole check but like $5

I'd be willing to bet my annual salary that being arrested for calling a politician a goat fucker would not hold up in a US court.

> Surely I won't be jailed for calling anybody -- even our president -- a goat fucker.

If you called a judge a "goat fucker" in their court room, I suspect you would be in some hot water.

One could argue there's not a huge leap between rules/laws requiring respectful behavior towards judges in a court room and a law requiring respectful behavior towards world leaders...

Edit: Not sure why I'm being downvoted -- I'm not defending the German law, just pointing out that it's not that different from contempt-of-court punishments in the US.

I agree. People in the United States have gone to jail for insulting someone if that someone happens to be a judge, but for some reason everyone is up in arms over a world leader doing the same thing. I think it's ridiculous that I have to sit or stand or call someone "your honor" just because it's a guy wearing a robe that's involved. Any US citizen that thinks what Merkel is doing is wrong should take a second look at their own free speech limitations.

Here's a girl in the United States who had a judge raise her bail just because she said "adios" instead of "bye", and then put her in jail for a month for saying "fuck you": https://www.youtube.com/watch?v=0rrRGhvpEjo

In context of US court it might fail the Miller test


In line with Hustler magazine v Falwell, a reasonable person would not think Barack Obama actually does that.

Now, in an unfortunate turn of events should Cruz become POTUS I don't know if such a statement would be seen differently because I'd believe that he does do that.

Care to share some examples?

I assumed that by "go to jail" you meant actually be convicted. Yes, of course you can get arrested; that doesn't mean it's actually illegal, and we were talking about the laws, not police attitude.

Did you even read the headlines?

One guy spent an extra 2 months in prison. What else could be meant by "go to jail"??

In a courtroom, against the judge; not a particular great example, in my opinion.

Why isn't that a good example? It shows in the United States there are people that can arbitrarily add months to your jail sentence for insulting them, or simply send you to jail if you happen to do it while being in the same room they're in.

> Why isn't that a good example?

Because we allow judges to hand down sentences in order to maintain the decorum of the courtroom.

> It shows in the United States there are people that can arbitrarily add months to your jail sentence for insulting them, or simply send you to jail if you happen to do it while being in the same room they're in.

Not specific people, specific officers of the court who are performing the duties which pertain to being such. You could insult a judge outside of a courtroom all you want and they wouldn't be able to do any more about it than any other private person. Even less, actually, given that the judge is a "public official" under the law and, therefore, the Sullivan "actual malice" standard applies, which makes it substantially more difficult for someone to prove defamation.


None of those are instances of insulting a public figure. The majority of them aren't even convictions but merely arrests.

In the final link, the speaker was even awarded damages for unjust arrest.

I don't have time to open up all those links, but from the sound of it, they seem to be personal defamation cases (or other edge cases like disorderly conduct in a court room; false arrests by idiotic police departments which of course do happen but generally get overturned; etc) and generally against private individuals, not politicians.

OTOH, there's an established body of precedent in the U.S. (which fortunately, not too long ago, wasn't anywhere near as PC as it is now -- far from it, in fact) saying that politicians and big enough celebrities are fair game for non-specific, purely pejorative insults (like "goat fucker"), as long as they don't stray into the territory of making a specific claim of fact (e.g. "I saw the Senator drilling a away at a captive goat behind the shed the other day, and boy, you should have seen the look on his face!")

You'd never go to jail for that here.

technically he didn't call him a goat fucker, he said calling him a goatfucker is illegal. which it is, wether or not the one being accused of being a goatfucker is a leader of a country or not. it's called "beleidigung" and can be prosecuted under http://dejure.org/gesetze/StGB/185.html as long as the recipient (or his/her commander in millitary or <supervisor> in the church) goes to the authorities and delclares that it should be prosecuted ("strafantrag"). i go dakor with the (currently) most upvoted post it's smart from mutti (merkel) to "allow" it, because of diplomatic relations, when in fact she doesn't have a word to say in that. she can allow or forbid everything she wants, but as she is part of legislature and executive, ?judicative? can do what they have to and don't give a shit what mutti says

I do not know why this is downvoted. It is correct.

There is a very important context to the 'he called him a goat fucker': The - admittedly very crude - 'poem' he made is embedded in the context of basically explaining what the German law is about, and what you can not say.

There is also another part of history: Erdogan complained about another, earlier satire show on German TV. Boehmermann was referencing this and the earlier attempts of censorship by Erdogan, and basically said 'look, we could call you this, but we didn't, we just clearly expressed our opinions and this is our freedom of expression here in Germany'.

Obviously incorrect, and I struggle to see why you'd even say it. Everyone knows this is wrong.

See examples above.

Calling somebody a "goat fucker" is totally different than almost all of these.

> http://www.dailymail.co.uk/news/article-3464628/Woman-35-fac....

This is the closest to this. Except that she posted a phone number which caused the victim to be harassed by a whole lot of other people. She wasn't arrested for calling her names, she was arrested and possibly charged because of this fact alone.

> http://www.bostonmagazine.com/news/blog/2013/05/23/a-methuen....

> http://www.businessinsider.com/teen-justin-carter-faces-tria....

> http://www.fox5dc.com/news/local-news/15763074-story

> http://www.wdrb.com/story/30881928/judge-olu-stevens-gives-m....

> http://thefreethoughtproject.com/man-wins-35000-arrested-cal....

All of these others appear to be threatening messages, which, while somewhat controversial, are different animals than a simple name calling/satire post. Some would say it'd be negligent not to investigate and/or charge them with this if said action threatened actually came about.

The other is a comment made to a judge. They were arrested for contempt of court. This is entirely different, because only judges get to make this call in the US. Lots of people probably say similar statements on Facebook about POTUS, I've seen people say it without coming out and saying it but they weren't afraid of the law in this case.

The last case was acquitted, shown to NOT be legally arrested. Kind of disproves your claim, or at least offers contrary evidence.

no, you can't.

PC bullies are nothing more than just that. impotent bullies. they have no power and have no law behind them.

if I want to call someone a goat fucker, be it leader of a country or the guy next door, I can do so without fear of prosecution.

While what I wrote is the contrary to what you say, you are absolutely right, too (so you get an upvote). But Merkel has her very own style of doing stuff, and in the current situation that she maneuvered herself into, her decision made some sense from her point of view.

I personally think heads of state that turn authoritarian should be offended much more often and harder. In this regard, Merkel's decision is absolutely the wrong signal.

> I personally think heads of state that turn authoritarian should be offended much more often and harder

That might be the actual outcome. Erdogan might quite well loose the case which would establish that he's fair game.

Whether or not he loses the case in Germany, Erdogan's getting insulted around the world for being a thin-skinned authoritarian.

Indeed. I also heard he was accused of bestiality and other unsavoury things.

The style argument would have had any merit if she delivered results. She managed to badly mishandle all major crisis I can think of - Euro debt, Ukraine, Migratrion

So you've been to the future and know how her government's decisions play out in the next 10-15 years? Please, tell us more!

So you have been living in an alternate universe, where actions can't reveal themselves to be disastrous or bad in the short- and mid-term?

The idea that we should wait 10 to 15 years to judge foreign policy (or any other) actions is just beyond comment...

No need for elections every 4-5 years either, we should better wait 10-15 years to judge a government/leader, when it's absolutely certain how their laws/actions panned out.

I disagree, I'm sure there are strong politicians who don't make waves, we just don't hear about them. It's sampling bias.

Yes she can but she would look just like Erdogan.

From a technocrat standpoint, Merkel made the smart move.

From a "face"/PR standpoint. She lost big.

By "giving in" to Turkey's insane demand, it sets a precedent for taking future demands seriously. Germany just gave an authoritarian state a seat at the big kids table.

A flat out denial to engage Turkey's unreasonable demand would have highlighted how absurd it was in the public sphere. Instead, we have a bunch of articles highlighting Merkel. Erdogan played her like a fiddle.

If there is legislation on the statute then how can Merkel have it ignored, does she have some sort of absolute authority to contradict the rule of law?

>"In a country under the rule of law, it is not up to the government to decide," Merkel said. //

Which seems exactly right; there's no decision she made other than to not attempt to interfere with the established rule of law - who would allow that to happen??

>Germany just gave an authoritarian state a seat at the big kids table. //

Which seems to be nonsense. Instead Germany allowed someone to bring a private prosecution to court as is the right according to that country's legislation; not doing that would a complete breech of democratic process and the rule of law. Just because someone brings a frivolous prosecution doesn't mean you suddenly tear down the basis for open society and create a sui generis action against them, you let the law work, that's the exact opposite of giving in to authoritarianism. Acting like an authoritarian state to counter authoritarianism would be moronic.

Playing this out as "Erdogan has won against Merkel" seems really ignorant to me. Why are you doing that, don't you believe in the rule of law?

>If there is legislation on the statute then how can Merkel have it ignored

Because Erogadan is not a German Citizen.

>don't you believe in the rule of law

There is no international rule of law between Turkey and Germany.

This is not how it works. First, citizenship is not important in front of a German court barring very few exceptions. Second, there is a law which specifically protects foreign head of states. Third, German courts ruled before in the past this specific provision is part of international law in the German legal system.

You don't need to be a German citizen to be protected by German law (why should you?).

Slander/libel are about the country of the alleged infringement. As with other torts the person allegedly damaged doesn't need to be present otherwise it would be easy to just cross a border to avoid prosecution.

Indeed I didn't realise initially but the German statute includes a law particularly protecting foreign heads of state.

I think you're wrong, because the government interfering with what is primarily a judicial process is exactly how autocracies work, and exactly how democracies do not work, even if in this case the end result is the one we would prefer.

Process matters. A lot.

Now where the government (legislative) has every right to have a say is that this law needs to be removed.

>Process matters. A lot.

Within an established system.

Germany and Turkey have no common justice system or even a common foundation for the rule of law. Erogadan is playing outside the scope of any justice system, and so should Germany, because it holds all the power here.

After all. The only rules to The Great Game, are that those who follow the rules, lose.

This is happening within the German system of government, even if an outsider is bringing the suit. And that is exactly the point.

And what I find so beautiful is that it manages to send both the "rule of law" message and the fk you message at the same time.

International politics is a game of its own, where there are no rules, but actions still have consequences. Looking at it purely under the prism of internal law is simplistic.

Germany and Turkey are both nominatively parliamentary republics. They are also members of the United Nations.

So they both share a common justice system, and a common foundation for the rule of law. Obviously, there are limits to this, but it's a mistake to dismiss these things out of hand.

Exactly. This was a brilliant choice of action. And Merkel is blatantly telling the Turks how different things are handled in the EU. Without giving Erdogan (she needs him) grounds for feeling disrespected.

This is now out of the hands of government and will be settled in court. In an independent court that the government will not mess with.

That she emphasized the freedom of speech, freedeom of press and freedom of art several times in her speech is just the cherry on the cake.

>Exactly. This was a brilliant choice of action. And Merkel is blatantly telling the Turks how different things are handled in the EU.

Well, considering how dictatorial, under-the-table-ish and badly the EU handled the Euro-crisis, I'm not sure that's really true beyond this particular case...

> "says a big "F* Y" by eliminating the law and saving the comedian"

I don't think that this is "saving the comedian", since the law should be eliminated as of 2018. It's likely that judgement (at least at the first level of jurisdiction in case of objection/revision against) will be made sooner. Further who knows what proposed legislation come up since then, or like the Germans say: Since then, a lot of water will flow down the Rhine.

Currently Germany isn't known for its great process against odd repressive laws, I would say it's even the contrary developement when it comes to state authorities, which leaves me sceptic about that.

How is it up to a politician to "allow" a prosecution? Shouldn't that be up to the court?

"Under an obscure paragraph of Germany’s criminal code, prosecution for insults against organs or representatives of foreign states requires both a notification from the offended party and an authorisation from the government."


That article contains a link with a better explanation of the law: http://www.theguardian.com/world/2016/apr/14/obscure-german-...

Basically it's a holdover from the monarchy, and there are similar rules across much of europe for the same reason. It seems interesting that these laws hang on despite the massive changes to borders and governments in europe since the 1800's

I’ve read that the underlying assumption here is basically that since such insults potentially damage the relationship between Germany and the foreign state, Germany is an injured party and as such involved in the process.

But it’s also just an ancient law …

There's probably also the case where insulting certain other countries heads of state is just totally fine with the government, so they can ok those cases. ;)

You refer to it as ancient, but I just looked it up, and it seems it was last updated in 2014

How ancient can these laws be? The BRD is not that old.

The core of the laws is much older than the BRD, they were not re-invented from scratch after the war, rather re-established, actually. The penal code goes back to 1871 for Germany as a whole and is based on the earlier Prussian penal code of 1851.

The law itself is the main penal code of Germany and it is of course changed quite often. That specific provision has been unchanged since at least 1953 (though there has been a second subsection added). The original version from 1871 already contained it but worded differently.

and thats why they want to get rid of it


Courts do not prosecute people. They decide cases. The government (that is, the elected part) prosecutes people, at least in many cases. The prosecutor is either appointed by an elected official or elected directly. Therefore it is up to an elected official, either directly or indirectly, to decide whether or not to prosecute a case.

While this may be true in the US, most prosecutors are neither elected nor appointed by elected officials in Germany.

The prosecutors still are bound by instruction of their superiors (which at the end is the minster of justice, usually of that state). Sure, these instructions have bounds, but it can still lead to interference by political officials.

In the United States, criminal prosecution is up the the District Attorney. This is often an elected position. So, yes, it's sometimes up to a politician to decide whether to prosecute.

The thing is, this incident will be heavily used in favor of Erdogan here in Turkey. Next time he publicly suggest prosecutor action against some negative comment against him (in 1 or 2 days, mind you) he'll refer to this. And his supporters won't know the difference if Merkel will also change the law, if the case will get dismissed etc. Erdogan won this case domestically. It might be an intelligent move for her but definitely not for us, sadly.

How would the alternative look like? Erdogan referring to "even in germany, the head of state interferes". Mind you, there'd still be a court case, just under a different paragraph. The whole situation was not salvageable. I don't like the decision, but I can see the reasons. This way at least everybody can point to the independence of the courts.

Eh … I think waiting until 2018 is a bit … hesitant and cowardly? Federal elections are in 2017, so basically she says that the next government will do it. (Ok, it’s extremely unlikely that this next government won’t include her at the helm … but still.)

Also, the case will not necessarily get dismissed. Insults will still be a crime (if one with a lesser punishment), even after the law is abolished.

But I’m happy that abolishing this law is at least on the agenda.

as she also can't ignore diplomatic implication of doing otherwise

Are you seriously suggesting that throwing one of your own citizens under the bus for mean words affecting the fragile feelings of a foreign Head of State is proper and correct diplomacy?

She really didn't get it right. As others have pointed out, § 103 states:

   (2) Ist die Tat öffentlich, in einer Versammlung oder durch Verbreiten von Schriften (§ 11 Abs. 3) begangen, so ist § 200 anzuwenden. Den Antrag auf Bekanntgabe der Verurteilung kann auch der Staatsanwalt stellen.
... which points out that the state can decide whether to prosecute or not. And Merkel is deciding to prosecute, which means that this man, even if the courts are on his side, is going to have no choice but to fight an absurd case for weeks if not months. So much for freedom of thought and expression, at least in this case.

Merkel gets what Merkel wants: free speech is silenced, and she's made an example of this comedian so that other writers, entertainers, journalists, etc, will get the message to keep their ideas about Islamism to themselves. Sure you can say "he'll have his day in court", but it'll take years and millions of dollars (Euros, or whatever). The TV network has already pulled the offending joke off their website. The comedian has had his show cancelled. Anyone else out there thinking about doing something similar has got the message about what happens when you disagree with the government. Yeah, he'll win his freedom in the trial, but "the process is the punishment". No free country tells a comedian that he and his employer are going to be forced to defend themselves in court for... writing a poem.

The good floats with the bad and vice versa.

Politics are regional. Living in Los Angeles with a highly diverse population with both legal/illegal immigration and free speech as its the raison d'etre would be unacceptable to Germany and maybe that is a good thing?

This is a locale that produced entertainment acts like NWA, Snoop Dog The Doors & Sarah Silverman. (Also some really great looking mixed race actors as well) I don't think Germany could do that due to its Homogeny. A region has a choice: Homogeny which produces affluence and social cohesion or diversity that produces great food, music, art, and technology.

Is it a misinterpretation of the article or does the chancellor actually have to "allow" or "disallow" an investigation? Aren't prosecutors completely independent in Germany?

That specific law contains a clause which requires the federal government to give consent before the prosecution could go forward. Think of it that way: The law concerns the foreign relations of Germany which makes the federal government an affected party.

But even apart from that the prosecution is part of the ministries of justice and answers to them (usually to the state level). However, it's really, really rare that they actually interfere with prosecution. I think it's similar in many countries. This case is not one of those by the way, as said above.

Prosecutors aren't independent in Germany. I thnk that's bad, but the idea is actually checks and balances: giving the executive a way to defend against an overreaching judiciary.

Usually it's political suicide for politicians to interfere with prosecutors, there have been spectacular examples of that.

Unfortunately, we've quite recently had a counterexample where the justice minister got under lots of pressure from a shitstorm-moved public and a violent felon walked free (Gustl Mollath).

I know that this is off-topic, but Gustl Mollath did not walk free because of some interference but because he was explicitly ruled not-guilty and was completely rehabilitated by a court. The case then went up to the highest court which confirmed the ruling. He is not a felon in any meaning of that word.

You're misinformed, but that's common.

To the contrary: the court convicted him, but for procedural reasons he walked free.

The lower court's acquittal was appealed (revision) by the defense and the prosecution. Since the prosecution had appealed the sentence could have been more severe (more than "nothing").

The justice minister then ordered the prosecution to withdraw its appeal. That means that the sentence could not be more severe.

The higher court subsequently convicted and sentenced to "nothing", because of this procedural rule.

As an aside: he is a violent felon. He has been legally bindingly convicted of having thrown his wife out of a car while driving. He has been convicted of domestic violence.

As the prosecutor said in his plea: his claim that the well-documented bite marks on her neck were a result of falling out of the car is outlandish.

I did follow the case and I refuse to be called misinformed.

The Landgericht Regensburg discharged him on factual, not procedural, grounds with the verdict from 14.08.2014. Only in the case from 12.8.2001 (the one with bite marks) did they discharge him on legal grounds as they ruled that he didn't fulfill the obligations of § 20 StGB (i.e. he was not convicted because he was might have been insane – which still means not guilty and not a felon, that's how the justice system works).

Could you please cite which legally binding convictions there still are against him? As far as I know they all have been part of the above renewal case and a short search in a legal database seems to confirm that. I also have never heard of an order to withdraw an appeal nor can I find anything. She did order to renew the case, yes, but that is not the same.

Incorrect and incomplete representation. She's starting the removal of §103 (deals with dignitaries) and made it very clear it's only being removed because it's "expendable" i.e. only removed to appease a loud minority and polish image. The removal will take like 2 years and i doubt the "investigation" will take that long.

§185 stays in and Erdogan can (and actually is) still sue Böhmermann using that one.

surely Kafka would disagree with you. being subjected to this ordeal is maltreatment, regardless of what legal wizardry will transpire at the eleventh hour.

> that the government will get rid of this law

germany has a separation of powers and merkel can't dictate any laws.

I think you wanted to write "FUCK YOU". We're all adults here, right?

If I knew how to vote you up I would.

Realpolitik at its finest.

Guidelines | FAQ | Support | API | Security | Lists | Bookmarklet | Legal | Apply to YC | Contact