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These examples alone show impressively that the persecution of democrats, socialists and communists continued seamlessly in the Federal Republic of Germany (FRG), but under democratic cover.
The persecution in the Nazi Reich was made more precise by the 1st Criminal Law Amendment Act in the FRG, so that a Gesinnungsparagraph [translator’s note: an attitude-based law, in contrast with the common act-based criminal law] was created, in which the objective investigation of punishable facts was increasingly pushed into the background. Between 1954 and 1962, at least 85 people were imprisoned for political reasons. Since then, there have always been political prisoners in Germany’s prisons. Today, a total of 20 political prisoners are in prison.
IN BRIEF: Paragraph 129 serves to criminalise any form of criticism, exposure of grievances, struggle against attacks on rights and freedoms. Organisations operating within this framework can easily be declared “criminal organisations”. However, this paragraph was also extended by two additions designed to intensify the attacks of the FRG against socialists and communists.
At the beginning of the 1970s, the anti-nuclear movement, various movements against the destruction of the environment, squatters, feminists and socialist organisations emerged in Germany, which gave the federal government a reason to specify the anti-terror laws again. Thus, in 1976, during the Stammheim RAF trials, Amendment 129a StGB was introduced. With this amendment, the federal government was granted far-reaching freedoms in its fight against opponents of the government. According to the Federal Court of Justice (in German, Bundesgerichtshof, BGH), criminal liability is established “well in advance of the preparation of concrete criminal acts”. (1) Not only has the minimum penalty for convicted persons been increased, the prosecuting authorities also benefit from an enormous simplification of evidence – to the detriment of the accused: According to 129a, they no longer have to be proven to have committed a concrete criminal offence. Rather, a person who is once considered a member of a so-called “criminal” or “terrorist” organisation can be held responsible for all offences attributed to this organisation. Especially in the offences of solicitation or support, actions are prosecuted which – according to the BGH in its judgement – “are somehow beneficial to the organisation.” In practice, it is above all unpopular expressions of opinion that are criminalised: for example, journalists were accused of “supporting terrorist organisations” because they printed letters of confession from militant groups. (2) Sprayers who painted the slogan “War on the palaces” and a five-pointed star on the walls of the Munich underground were sentenced in the 1980s to twelve months in prison without probation for promoting a terrorist organisation. (3)
The federal government stated that less than 3% of the preliminary proceedings initiated in the 1990s on the basis of §129a ended with a court verdict.(4) The remaining 97% that were discontinued were by no means useless for state security, because the ” 129a opened up a wealth of possibilities for surveillance of large groups of people.” For example, in the 129a proceedings against an antifa-group in Göttingen in the mid-1990s, a total of 14,000 telephone conversations were intercepted within a few months. (5)
BGHSt 28, p. 147 (148)
cf. Gössner, R.: Das Anti-Terror-System (The anti-terror system), Hamburg 1991, p- 146ff.
Frankfurter Rundschau v. 6.6.1981
BT-Drs. 14/2840. Bei anderen – unpolitischen – Delikten liegt die Quote weit über 40% (For other non-political offenses the rate is far above 40%)
Gössner, R.: Einmal verdächtig, immer verdächtig (Once a susoect, always a suspect), in: Bügerrechte & Polizei/CILIP 64 (3/99), p. 78-81
The surveillance of correspondence, technical observation by camera or satellites, the setting up of checkpoints in road traffic as well as solitary confinement in prisons are also part of the extended possibilities for which the introduction of section 129a has paved the way!
But even though § 129a allowed for several new possibilities in the struggle of the authorities against any form of social struggle, it was limited only to struggles waged within the country. Social, anti-fascist struggles abroad, such as that of the Basques or the Irish, were prosecuted in Germany, but the prosecution posed some difficulties for the authorities in Germany. These difficulties were to be met at the insistence of the EU, driven by the FRG: In December 1998, the EU Ministers of the Interior and Justice adopted a joint measure obliging the member states to include in their respective criminal law the offence of participation in a “criminal organisation”.(6)
Official Journal of the European Communities, L 351 of 29.12.1998, “terrorist organisations” are included in this joint action.
The logic of German state security criminal law, which is questionable from the legal point of view, was thus incorporated into the national jurisdictions of the members via EU channels under pressure from Germany, although it had been completely alien to many member states until then. The EU obliges its member states to prosecute persons for their activities in a criminal organisation even if they were not involved in the actual execution of the crime. What is more, the actual criminal act does not even have to be committed. A person is also to be prosecuted for “other activities of the association”, provided that he or she was “aware” that his or her – unspecified – “participation” “contributed” to the implementation of the criminal activities of the association. These other activities are now permanently in the actually unpunishable run-up to criminal acts. The door has been opened for the criminalisation of all possible legal activities. With this common measure, a possible criminal act no longer has to have taken place only in the national area of application – rather, it does not matter in which EU country this act took place. For example, Romanian smuggling gangs without any contact to Germany can be brought to justice and sentenced here (in Germany).
September 2001. Two planes fly into the twin towers of the World Trade Center. In martial speeches, the USA calls on the whole world to be with or against the USA. Germany is one of the first countries to respond to this call: In April 2002, another additional paragraph is added to section 129 and its supplement 129a: Section 129b is apporved. At the same time, the international terrorist list of the USA was accepted by all EU states. Only four years after the joint measure taken by the EU countries, the area of application of the §129 was extended from the EU to the whole world. This is because, unlike §129a, §129b does not need to refer to the EU. All acts worldwide can be criminalised under this paragraph.
The facilitated extradition within EU countries, the exchange of information between international police authorities without judicial permission and the prosecution of persons across national borders were the first steps: Now German authorities decide which struggles are legitimate freedom struggles and which should be politically persecuted.
Those who, from German ground, plan actions that are “terrorist” or disturbing the peace according to the German law can be prosecuted under the current law, even without 129b. However, the new § 129b entails much more. Section 129b allows the prosecution of people who are not guilty of any criminal offence in Germany, but who support an organisation defined as “criminal” or “terrorist” by other states in any other country in the world. This creates the possibility for other states, with the help of German state organs, to persecute and intimidate opposition members living in Germany in the future. For example, Turkish politicians regularly hand in lists and folders with the names of opposition figures living in Germany, asking that they be persecuted and criminalised. Only recently, few days after the arrest of Özgül Emre, Ihsan Cibelik and Serkan Küpeli, which he himself initiated, the Attorney General Peter Frank visited Turkey and met with President Erdogan. Erdogan then announced that he had given Frank a list of 129 names of opposition activists.
It is such fascits’ friends like Peter Frank who thanks to the § 129b define, which organisations in Pakistan, Iran, Iraq, Afghanistan, Burma, Sri Lanka, Algeria, Turkey, or anywhere else, are “terrorist”. German police and prosecutors decide whether somewhere in the world a group, association or party has overstepped the boundaries of legitimate resistance against state or non-state repression and is thus “terrorist”. In this way, even simple propaganda actions can act as legitimisation for the persecution of people based on § 129b.
In practice, this can be illustrated as follows: The members of the Anatolian Federation were sentenced to several years of prison in the course of the trial at the Düsseldorf Higher Regional Court in 2008. There was no single concrete criminal offense of which they could be accused. The questionable creation of an alleged participation in the DHKP-C was enough to criminalise any legal activity that thay had carried out in Germany, including e.g. the organisation of seminars and concerts. Since the organisers of these seminars and concerts were once considered to be potential members (of a criminal organisation), the possibility arose to treat them like serious criminals. For this reason they were all kept in solitary confinement. In addition to isolation, procedural requirements were also changed: For example, the duration of the opening of proceedings, which is designed to be one year for section 129a, can be extended to two years for section 129b. Due to security concerns, it is possible to refrain from handing over the indictments to the accused and their defence lawyers, which in turn leads to the prevention of the right to an adequate defence.
All this can be summarized by saying that section 129 acts as a law to contain social, national, and democratic struggles at home and abroad. It has a 200-year long history, that began in 1822 in the struggle against the bourgeois revolution and goes on until this day in an intensified form. Section 129 is a law that was applied to this extent by nazi-Germany to fight communists and oppositionists. In 1951, this law started to be questioned, yet then retained in an expanded form under the pretext of fighting Nazism. And although up to this day no nazi has ever been convicted under this law, victims of Nazism like Frenkel and Auerbach were charged and convicted under it. The expansion of section 129 through 129a and 129b served to extend the law first to the EU borders and later to the entire world. Section 129 – especially the additional paragraph 129b – is a tool to criminalize all democratic and free movements worldwide. Section 129b is an attack on all democratic rights and freedoms, since these can be interpreted for anyone accused as terrorist activities.
– Özgül Emre and Ihsan Cibelik are accused of participating in summer camps. The latter happen every year and represent for families, teenagers and children an alternative to traditional holidays. There is singing, dancing and playing, The participation in such a camp is interpreted as a terrorist activity.
– Özgül Emre is accused of organizing an anti-racist concert in the König-Pilsner-Arena in Oberhausen, in which 15,000 people participated. The concert, that had been legally planned and executed, is now being interpreted as terrorism.
– In spring 2022, Birsen Kars passed away and was seen off in a funeral ceremony in Stuttgart that was attended by hundreds of guests. Özgül Emre is now accused of carrying Birsen Kars’ coffin. Birsen Kars was set on fire by chemical bombs during a large-scale attack on several prisons in Turkey and survived with severe injuries, that later led to her developing skin cancer to which she would eventually succumb. 6 of her fellow inmates were burnt alive. The chemical bombs used in that attack were of German manufacture, but not allowed in Germany. Today it is known that these bombs were tested for Germany by the Turkish security forces. And although to this day none of the masterminds in Turkey or in the German government has been convicted for this, Özgül Emre is being tried because she carried the coffin of one of the victims of this massacre.-Özgül Emre is furthermore accused of pinning the rings at the engagement party of two members of the music band Grup Yorum. Pinning engagement rings is a terrorist activity when it is assumed that the person is a member of a terrorist organisation.
– Ihsan Cibelik is accused of holding the keys to an association building in Stuttgart Bad-Cannstatt. The aforementioned association appears in the Stuttgart register of associations and still exists today. It has been designated by the authorities with traffic signs so that it is easier for visitors to find the association. Ihsan Cibelik is yet declared to be the regional leader of DHKP-C for Baden-Württemberg, Hessen und Bavaria, because he locked and unlocked the door of that association building several times.
– Ihsan Cibelik is a founding member of the music band Grup Yorum, which was founded in 1985. This band is neither in Turkey nor in Germay prohibited, which can be seen, among other things, from court decisions made by the Higher Regional Court (OLG) of Kassel in 2019. Ihsan Cibelik is now in jail because he was on stage at several concerts of this band.
– Serkan Küpeli has allegedly not carried out any activity related to DHKP-C since 2018. However, as he took part in the 2022 1st of May rally in Hamburg, he is accused of being still a member of this organisation. He was arrested 15 days after the birth of his first child in front of his wife’s eyes and is tried for activities that are at least 4 years in the past!
The ones listed above are the major crimes that the 3 imprisoned anti-fascists from Turkey are alleged to have committed in Germany. From this concrete example it can be easily seen that section 129b criminalizes every democratic, antifascist without further ado and brings it to trial. However, section 129b is not only an attack on our rights and freedoms, but also on our right to resist.
Article 20 of the German Basic Law states that everybody must have the right to resist, in case the principles of the rule of law (Rechtsstaat) are attacked by a state institution. These principles also include the separation of powers, which is suspended by this paragraph (129b). This is because a prosecution based on the 129b can only be carried out on the instructions of the Federal Ministry of Justice. This is in contrast with the ruling of the Federal Contitutional Court of the 17th of August, 1956, according to which a right of resistance against individual measures is not permissible since otherwise one would be overlooking “the fundamental difference between an intact order, in which unconstitutional acts may also occur in individual cases, and an order in which the organs of the state, out of disregard for law and order, corrupt the constitution, the people and the state as a whole”.
Criminal proceedings under section 129b are conducted in order to protect the rule of law of another country. The purpose of the proceedings against Özgül Emre, Ihsan Cibelik and Serkan Küpeli is thus to protect the rule of law of Turkey. Such an order in Turkey does not exist though, but rather an order exists, “ in which the state organs” – as described by the Federal Constitutional Court – “out of diregard of law and order, corrupt the constitution, the people and the state as a whole, so that even the still existing legal remedies in such an order are of no use”. Özgül Emre, Ihsan Cibelik and Serkan Küpeli have been actively fighting for years against the fascism in power in Turkey. They stand up against executions in the streets, mass graves, tortures, extreme exploitation, repressions, oppression of minorities, massacres, corruption and injustices. Under the 129b, this fight is interpreted as terrorism. This way, section 129b becomes also a massive attack on the right to resist, that is guaranteed by the constitution!
The attacks of the Federal Republic of Germany on the rights and freedoms as well as on the right of resistance are legitimized through terror demagogies. The concept of “terror” and “terrorist” are introduced in such a way that the population is given the impression that the convicts are dangerous criminals. What exactly terrorism is is intentionally left open. Worldwide there are 143 definitions of terrorism, that are officially recognized. It is however crystal clear that it is not about terrorism and the fight against it.
Because the real terrorists are not the members of ETA, IRA or DHKP-C.
-The real terrorists are the ones who dropped two nuclear bombs on Hiroshima and Nagasaki.
-The real terrorists are the ones who have murdered in total 20 millions of people in 43 countries since World War II. Only in Indonesia more than 1 million communist party members were killed in one day on CIA instructions. The execution was controlled by CIA-managed lists and the deads were ticked off on these lists.
-The real terrorists are the ones who wiped out entire villages in Vietnam, who bomb civilians in Afghanistan and Pakistan with remote-controlled weapons.
-The real terrorists are the ones who run torture centers like in Guantanamo or Abu-Ghraib.
-The real terrorists are the ones who invade other countries, overthrow governments and legitimize this crime with lies.
-The real terrorists are the ones who leave behind rape, devastation and destruction wherever they invade. Alone in the Jugoslav war, Nato-soldiers have raped and impregnated more than 25,000 Bosnian women. In the last Iraq War, only few days after the USA invasion, more than 4,000 women between the ages of 6 and 64 were raped.
-The real terrorists are the ones who founded and supported the Gladio Armies to eliminate democrats and socialists by means of bombings, tortures and kidnappings
and the real terrorists are the ones who train, finance, equip, and protect fascists, mafias and other criminals around the globe in their paramilitary struggle against democrats and socialists. In Turkey alone, hundreds of mass graves have been created by these NATO-led counterguerilla units; hundreds of abducted youth have not been found to this day.
Therefore, it remains to be said: Those who spread terror all over the world cannot determine who is a terrorist and who is not. Section 129b, as an attack on rights and freedoms as well as on the right of resistance, is nothing more that legal injustice. It must therefore be removed from the law without exception. This is in the interest of all the people in Germany, first and foremost of all democrats and socialists. Thus, we call on all the people in Germany to fight against sections 129, 129a and 129b. Let us unite to banish thes anti-democratic, fascist paragraphs once and for all in the history. Even though today socialists from Turkey and Kurdistan are the main targets of these attacks, section 129 is historically an attack on all democrats in Germany. The democratic struggle in Germany has attacked and criminalized through this paragraph to such an extent, that nowadays anti-fascism hardly takes place both among the population and in the streets. The people in Germany know from their history what fascism means. They know it from the massacres, the executions and the concentration camps. The people in Germany, above all the democrats and socialists, will hence not further tolerate that a Nazi law continues to be applied to protect fascism from German ground worldwide.
We therefore call on all the democratic institutions, organisations, associations, parties and individuals to act against the nazi paragraphs 129, as well as 129a and 129b! Who does not actively oppose fascism becomes easily accomplices. Therefore: do not be accomplices, but the barricades against fascism!