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Trial: Why Björn Höcke has not yet been convicted

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Trial: Why Björn Höcke has not yet been convicted

The Thuringian AfD parliamentary group leader Björn Höcke has been charged twice before the Halle regional court.

Source: dpa

Björn Höcke has been sitting in the state parliament in Thuringia since 2014 and leads the AfD parliamentary group there – and since then the politician has repeatedly been on the radar of the investigative authorities. The Legal Affairs Committee has lifted Höcke’s immunity eight times so far.

Two charges against Björn Höcke

This week the AfD politician was charged twice before the Halle regional court. The allegations: In 2021, Höcke is said to have spread the SA’s central slogan “Everything for Germany” during the election campaign in Saxony-Anhalt. Höcke used the same saying again at the end of 2023 at an AfD party event in Gera. There are videos of both events.

Legally, it is clear: the saying falls under the criminal offense of using labels of unconstitutional organizations and is therefore prohibited. With the help of the SA, the NSDAP’s thugs, the party came to power in the 1930s.

Anyone today who consciously uses the saying as a reference to the Nazi era is therefore committing a criminal offense. But it is precisely this intention that Höcke is likely to deny in court.

According to AfD politician Bernd Baumann, only one right-wing extremist was at the secret meeting in Potsdam. Nils Metzger’s fact check also refutes statements about a speech by Björn Höcke.01/23/2024 | 11:02 min

No conviction so far

So far, investigations have always gone well for Höcke. An excerpt from the chronology: In 2015, the public prosecutor in Erfurt investigated Höcke for fraud. The AfD politician was accused of having paid a lawyer as a constituency employee who was not said to have worked in Höcke’s office to the extent alleged. This could not be proven and the proceedings were discontinued in 2016.

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A year later, in 2017, the AfD politician employed the public prosecutor again. This time with the statement that the Holocaust memorial in the middle of Berlin is a “monument of shame.” It wasn’t just the Dresden public prosecutor’s office that was investigating sedition. The AfD itself was also considering expelling the party at the time. Both proceedings ended well for Höcke: the public prosecutor stopped the investigation and the AfD kept Höcke in its ranks.

But the list of investigations goes on: in 2018, an investigation into a violation of the Art Copyright Act. In 2020, two investigations: one for sedition and slander, a second for slander. In addition, there are the current charges before the Halle regional court. And a trial for sedition could soon be opened in the Mühlhausen regional court.

A petition to revoke AfD politician Björn Höcke’s basic rights has collected over a million signatures. He is accused of being unconstitutional.01/16/2024 | 2:06 minutes

Barrier to criminal liability high

Despite the many trials: Höcke was never convicted. Because crimes such as incitement to hatred, slander and the use of labels for unconstitutional organizations involve the accusation of exceeding the limits of what can be said.

The hurdle of criminal liability is high for such offenses because it is in tension with freedom of expression, explains Matthias Jahn, professor of criminal law at the Goethe University in Frankfurt: “The Federal Constitutional Court consistently says that before someone is convicted of a criminal offense, all other alternatives must be considered be excluded from understanding his statements that do not lead to criminal liability.”

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Freedom of expression is a valuable asset, and many things that offend and polemicize can therefore be said.

Only when a statement is only inflammatory, denigrating or devaluing is the way clear for a conviction.

Matthias Jahn, Professor of Criminal Law at the Goethe University Frankfurt

In addition, the bar is even higher for politicians because the Federal Constitutional Court also sees their task as exaggerating in the political battle of opinions.

Björn Höcke consciously exploits this and pushes the extreme limits of what a democratic society can still endure.

Matthias Jahn, Professor of Criminal Law at the Goethe University Frankfurt

Could there be a conviction?

The trial will have to show whether Höcke will be convicted this time. In the past, courts have convicted right-wing extremists for saying “Everything for Germany.” But the AfD politician did not use the saying in isolation, but always in the triad: “Everything for our homeland, everything for Saxony-Anhalt, everything for Germany” and modified it slightly. The court must now determine whether this is also prohibited.

When considering the question of intent, the regional court may take into account the fact that Höcke worked as a history teacher for a long time. Nevertheless, the judges need solid evidence that Höcke also knew the specific sentence.

Höcke himself could have provided proof of this in the meantime: Höcke has been charged twice because of the saying. When the AfD politician repeated the slogan at the party event at the end of 2023, he already knew about the first accusation against him – and also that he could have committed a criminal offense with the statement.

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Björn Höcke himself, however, denies that there is any connection between the saying and the Nazi era: “Everyone knows that this is not a Nazi slogan,” said Höcke in a TV duel on the Welt television channel last week.

Before the state elections in Thuringia, CDU top candidate Mario Voigt and AfD right-winger Björn Höcke meet in a TV duel.11.04.2024 | 2:50 minOn the social media platform X, Höcke called for people to look at the trial as an example of how freedom of expression is being restricted in Germany. Platform owner Elon Musk even responded to the post, which was written in English, and asked how such a thing could be.

Höcke then only told him the saying, he didn’t mention the historical context.

Ann-Kathrin Jeske is an editor in the ZDF law and justice department.

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