Schubel & Partner
Per Telefax Nr. 0032 2 230 17 63
and Mission to the E.C.
Attorney General's Department
Att. Frank Schöneveld
Re: David Irving
Dear Mr. Schöneveld,
The questions contained in your telefax
of April 19, 1994, can be answered as follows:
1. You informed us that Irving has been convicted
under section 189 of the German Criminal Code for
"Defaming the memory of the dead". This conviction was
appealed to the State Court of Bavaria which, on November
30, 1993, dismissed the appeal.
Additionally, the Australian Embassy in Bonn informed
us that the above mentioned conviction was rendered by
Amtsgericht München; the case-number was Cs 113 Js
3619/90. We did not, however, get the case-number of the
file of the Supreme State Court of Bavaria (Bayerisches
Oberstes Landesgericht). Accordingly, we do neither know
the exact wording of the decision nor its grounds.
Under the German Criminal Procedure Act, decisions by
Courts of First Instance (Amtsgericht) may be appealed to
either the next higher court (in our case the State Court
of Bavaria - Landgericht München) or - in case that
the appeal is purely based on legal arguments - to the
competent Supreme State Court which, in our case, is the
Supreme state Court of Bavaria (Sprungrevision, section
335 of the German Criminal Procedure. Act). If the
Accused or the Department of Public Prosecution choose
the way to the Landgericht, basing their appeal on
factual and/or legal arguments, then the decision of that
court may be, under certain circumstances, once again be
appealed on points of law to the competent Supreme State
Court. This option of a second appeal (Revision) does
not, however, exist in case that the Accused Department
of Public Prosecution chooses the direct way to the
Supreme State Court as mentioned above. With other words:
The decision of a Supreme State Court, judging on an
appeal against a decision which was, in the first
instance, rendered by an Amtsgericht is always final and
binding. There does not exist an ordinary legal remedy
against this decision.
Nevertheless, Irving has, in his affidavit, stated
that "this conviction has no force in German law as it is
under valid appeal which was lodged on the 4th January,
1994". Since, as explained above, there does not exist an
ordinary right of appeal against the decision of the
Supreme State Court of Bavaria, we must assume, that Mr.
living has taken recourse to an extraordinary legal
remedy. Such extraordinary legal remedy is, in German
law, the "constitutional complaint" to be filed to either
the Federal Constitutional Court, based on the allegation
of violation of federal law, or - if the subject of the
complaint is state law - to the respective Slate
In our case, Irving was convicted under section 189 of
the German Criminal Act which is federal law.
Accordingly, the "appeal" mentioned in his affidavit is,
most probably. a constitutional complaint filed to the
Federal Constitutional Court at Karlsruhe. Alternatively,
it might as well be a constitutional complaint filed to
the Bavarian State Constitutional Court in case the the
complained [sic] was based not only on the
allegation of violation of federal law but as well on the
violation of state law.
2. Assuming that Irving has, in fact, lodged the
"appeal" mentioned in this affidavit and that this
"appeal" is a constitutional complaint to either the
Federal Constitutional Court or the Bavarian State
Constitutional Court, then such constitutional complaint
would not affect, for the time being, the legal quality
of Irving's conviction. The decision of Amtsgericht
München is, given that the appeal was dismissed on
November 30, 1993, by the Supreme State Court of Bavaria,
final and binding. The constitutional complaint has no
suspensive effect. The constitutional complaint may,
however, provided that it is successful, lead to the
reversal of the conviction.
3. Enclosed please find a press-release of the German
Federal Court or Justice, concerning the decision of
March 15, 1994, mentioned under § 8 of your fax.
Unfortunately, the judgement itself has not yet been
released. Accordingly, I am not able to comment on the
grounds of the decision of the German Federal Court of
Nevertheless, the press release clearly states that
the object of the decision of the Federal Court of
Justice was a conviction under section 130 of the German
Criminal Act (incitement) as well as slander (section
186) and defaming the memory of the dead (section 189).
The Federal Court of Justice, in its decision, states
that the murder of masses of Jews in German concentration
camps between 1933 and 1945 is an obvious fact.
Nevertheless, the denial of this tact is, by itself, not
enough to convict the Accused under section 130
(incitement of the people). This section of the German
Criminal Act is, according to the German Federal Court of
Justice, only applicable in case that such denial can be
interpreted as an attack on the human dignity of the
Jews. Accordingly, the Federal Court of Justice ordered
the re-trial of the Accused. During this re-trial, the
court of first instance will have to examine whether the
Accused - for example - denies the above mentioned fact
for reasons of his nazi-race-ideology.
The press-release mentions that the court of first
instance will as well have to re-examine the conviction
under section 189 (defaming the memory of the dead). It
does not, however, say why such re-examination is
necessary. Accordingly, I am not able to comment whether
the German Federal Court of Justice applies the same
thoughts (existence of an attack on the human dignity of
the Jews) as a preconditon for a conviction under section
189 - Such comments will only be possible as soon as the
judgement itself will be released, Nevertheless,
according to my opinion, the application of this thought
to section 189 seems to be most unlikely: The German
legislator has, in 1985, changed section 194 of the
German Criminal Act. Until that time, a conviction under
section 189 was only possible in case that the
descendants of those who were defamed expressly demanded
prosecution. With other words: Until that time,
"defamation of the dead" was not prosecuted "ex officio"
but only upon demand of the descendants. The German
legislation has changed this expressly with regard to the
defamation of those dead which were victims of the
Nazi-Regime. The reason for this amendment was to
facilitate the punishment of people who deny the fact
that Jews were murdered in German concentrate camps.
Our conclusion is that Irving's conviction will, most
likely, not be reversed by the Federal-Constitutional
Court or the State Constitutional Court of Bavaria (given
that he has really lodged a constitutional complaint).
According to our informations his conviction was based
only on section 189 of the German Criminal Act but not on
section 130 to which the decision of the German Federal
Court of Justice mainly refers. We are, however, not able
to give you a complexe [sic] and detailed legal
opinion on this point since we do neither know the
decision of Amtsgericht München, convicting Mr.
Irving, nor the decision of the Supreme State Court of
Bavaria which dismissed his appeal.
Should you be interested to have more details, we
would suggest that you ask Mr. Irving for copies of the
decisions of Amtsgericht München and the Supreme
State Court of Bavaria Until we have this decisions on
hand, the judgement of the German Federal Court of
Justice will, most probably, be released. We would then
be able to give you more detailed comments.
Dr. Jan Curschmann