Sylvia Stolz's speech at the AZK conference, November 2012
"Speech Forbidden, Evidence Forbidden, Legal Defence Forbidden- The Reality of Freedom of Expression"
Introduction and background to video by "KD Kladderadatsch" formerly of Youtube
On 24 November 2012, dissident German lawyer Sylvia Stolz appeared at the eighth annual meeting of the "Anti-Censorship Coalition" [Anti-Zensur-Koalition (AZK)] in Chur, Switzerland, where she presented a speech entitled "Speech Forbidden, Evidence Forbidden, Legal Defence Forbidden: The Reality of Freedom of Expression" (Sprechverbot, Beweisverbot, Verteidigungsverbot: Die Wirklichkeit der Meinungsfreiheit).
In the speech, Stolz discusses her experiences as a defence lawyer for so-called Holocaust deniers in Germany, and describes the Orwellian system of state-enforced repression there which denies defendants (and their lawyers!) the right to explain themselves under threat of additional charges for the "repeat offence" of expressing a forbidden idea, even in their own defence in a court of law. Stolz further relates how the subject of the Holocaust itself has never been clearly or adequately defined by the German courts through the normal channel of judicial findings-of-fact in precedent decisions. Instead, the courts have relied on the arbitrary doctrine that the facts of the Holocaust are "self-evident" and thus in no need of proof, despite the obvious objection that the arguments of the "deniers" themselves clearly demonstrate that those facts are indeed contestable and thus cannot be "self-evident" by definition.
In the face of such abuses and absurdities, other lawyers might throw up their hands and simply walk away: Sylvia Stolz has the courage to call injustice what it is, and take a stand. Her speech is an extraordinary document of our times, a deeply moving call "to think what is true, to feel what is beautiful, and to want what is good." Wherever you may fall along the ideological spectrum, if you believe in freedom of expression, this speech is a must.
And of course there's one last outrageous twist to the story. On 25 February 2015, the German legal system heaped shame upon itself once more by sentencing Sylvia Stolz to twenty months in prison* for "racial incitation" on the basis of what she says in this video ....
*This was in addition to the three years and three months they had already given Stolz for insisting on defending civil rights activist, Ernst Zundel, properly in court some years earlier.
Update December 2019: Sylvia "Lionheart" Stolz began an 18 month prison sentence in May this year. (Click here for more.)
Sylvia Stolz: "Speech Forbidden, Evidence Forbidden, Legal Defence Forbidden- The Reality of Freedom of Expression"
Transcript of Original Subtitles by A. Friend, R.J Tucker and Kladderadatsch
Thank you for the warm welcome. Ladies and Gentlemen, dear friends, thank you again for the warm welcome.
I would like to begin my presentation with one sentence, with the same one with which I will end. Since I believe that this sentence is at the heart of human existence, and gives, I believe, what it means to be human. "To think what is true, to [sense] what is beautiful, and to want what is good, hereby the spirit finds the purpose of a life in reason." This is a quote from Johann Gottfried von Herder .... "To think what is true, to [sense] what is beautiful, and to want what is good." Regardless of your religion, your world-view or philosophical orientation, this sentence encapsulates the essence of human life, in my opinion, the "A" and [the "Z"], the alpha and omega. And one's actions show how one fulfils this human ideal, one's actions and one's behaviour. The first ideal is the predominant one, "To think what is true," for only on truth can one build.
When one builds on something untrue, when one builds on something false, it might stand for a while, but at some time it must, of itself, collapse. It is like trying to erect a building with a foundation of papier mâché rather than proper stone or proper concrete. An important notion in relation to the question of "true thinking" or "finding the truth" is: one must hear the other side. That is an ideal that is maintained very vigorously here. It is an old established principle of law: audiatur et altera pars, the other side is to be heard. To be heard in court and also in science when there are two different opinions. In science, for example, there may be two different opinions .... both are to be heard, and one is not excluded from the outset for whatever reason – because a result is not pleasing, or because the result does not fit in with existing opinion. One should only exclude a result when it is seen to be definitively wrong. To that end one must first examine it, and first hear those who support the view in question; in the case of a question of law, in a court.
When two sides disagree, or when one person is accused, then it is the duty of the judge to find out first of all what the truth is and what has really happened, and only then does one consider how that is to be judged, whether it is a matter of illegality or culpability, but the truth must first be clearly established, what has happened. "Hear the other side" is today often termed "the right to be heard" which means every citizen has the right to be heard, before a court and before other authorities to be heard, that is, to present his point of view – to be able to present it. And it is not sufficient that the judge just listens and thinks, "Well, I know how the verdict will go, but I'll let them talk." Sadly, I have experienced and observed that all too often in my practice, that the judges say, "So what do you want? We're giving you a legal hearing, we're letting you speak." But looking at the conclusions and the judgements [it is] apparent that they have taken absolutely nothing into consideration, they haven't considered that the defendant could be telling the truth or that he could be right.
That is an important factor in legal hearings, that the judge considers that someone could be right. I've often experienced that this is not so, that much more the attitude prevails: He is not right, because he cannot be, or even more, because he must not be. And one does not concern oneself at all with what the defendant puts forward. Such an attitude of a judge can be classified as bias. He is not unbiased, that is, he is biased, he is not objective, he is not factual. Put another way, he allows himself to be led by irrelevant considerations. That is grounds for objecting to a judge. Every accused can on these grounds object to a judge. I have often done that, as a defender, and in my own case. But no judge has ever been declined in any Holocaust denial trial in which I have been present and observed, the objection has never been accepted, the judges were retained.
One of the important topics we will be discussing is "Freedom of Speech". One hears from many places, that people who have certain opinions get into trouble. And this is not confined to political discourse. I am sure you know of quite a few areas without me listing them. But to give an example, say, the issue of vaccines. There are doctors out there who have been banned from practising because they warned against vaccination. This is just one example out of many within medicine, one of the many areas in which such things happen. Or journalists who are ostracized because they have a differing view of the events of 9/11 2001, for example, and report on this. Such journalists are also bound to get in trouble.
However, these people are not punished by criminal law, but find themselves punished in their respective occupations. These two examples should suffice to show that our so highly touted "Freedom of Speech" in reality, isn't all that it is made out to be. And now to the issue of the prohibition of evidence and legal defence in the matter of "Holocaust denial". Much could be said about this, one hour is far from sufficient. My task here is to omit that for which there is no time. But there are certain points which I think are essential to emphasize. First of all, it must be said, that the principle of legal certainty is not observed but regularly contravened. This principle dictates that the accused must be allowed to know what he did wrong, and what would have been right. If someone takes a bicycle that does not belong to him, most people know this is theft and not allowed – one doesn't have to explain it. In cases of libel, where a person says something negative, something damaging reputation, then it's a question of whether it is true or false.
And if what the person said is true, then it does not constitute libel, because in theory one is allowed to speak the truth. In the case of Holocaust denial trials, the first problem we are faced with is that the Holocaust isn't defined. There is, therefore, a problem of lack of legal certainty. An authoritative definition is not to be found anywhere. I'll come back to what I mean by this later, as to what needs to be said exactly so that something is authoritatively defined. Let's turn to to the legal passages in the different laws. First of all, the ones in German law. In paragraph 130 section 3, [of the German Criminal Code] according to which so-called Holocaust deniers can be fined or imprisoned for up to 5 years for each singular offence, there is no mention of Holocaust. It is not defined in the law as such. Instead it refers to paragraph 6 section 1 of the German International Criminal Code. And here we find a definition of genocide.
Whoever denies that such a genocide has occurred, can be convicted, provided that additional criteria are met, the disturbance of public order, for example. But what I would like to emphasize is the definition of genocide in paragraph 6 of the German International Criminal Code. It's just a few lines, I'll not give it quite in its entirety. But an essential point is that it states there that it is considered genocide when one member of an ethnic, religious or other group is killed "with the intention of causing the destruction of that group, in whole or in part." So, one member of, say, a religious group is killed, and the perpetrator intended to kill the whole or part of the group, that's how genocide is defined in this paragraph 6. If one brings this together with paragraph 130 section 3, the denial of an act defined in paragraph 6 [of the International Code], then one can according to this definition, convict a person who denies … Pardon me, to be precise, one must add "under the rule of National Socialism" as paragraph 130 section 3 reads "Whoever … denies … an act committed under the rule of National Socialism."
So to resume, according to paragraph 130 section 3, a person can be convicted who denies that under the rule of National Socialism a Jew was killed by someone to the end of destroying the Jewish people as an ethnic or religious group. Which does not require, for example, that the German government wanted it, or gave an order for it, or even knew that something of the sort happened – none of that is required here. Equally unrequired is that the killing [was] committed by a German, this is also not to be found in these laws. So, one cannot speak of legal certainty here, if only because of this, in my opinion, inexact definition of genocide. Or otherwise, one can define genocide, but the denial of it is naturally yet another question. And then there are questions like: Is it Holocaust denial when one questions that one person was killed or that 6 million were killed? This alone shows the inexactitude. In the Federal Republic of Austria, there is also a relevant paragraph, and there too the Holocaust itself is not defined.
It is not clear what exactly is meant by the word. Let's turn now to the question of how it should be defined in order to be clear. Normally, in cases of murder, the verdict must clearly establish where the crime took place … the police, the investigating magistrate, must naturally first establish matters and then present their findings to the court … and in the verdict, once this has all been appropriately proven, the judge can then state that on such and such a day at such and such a place a murder took place with such and such a weapon, and the perpetrators were so and so, and this is proven because, for example, it has been made clear, shown beyond doubt, that this weapon is the murder weapon, that the fingerprints of the perpetrator, the accused, are on it, and that there were powder residues on the perpetrator, and so on – these are just examples. These things must be clearly established in the judgement. When we are dealing with the denial of such an act, with the criminal denial of such an act, then, of course, we would expect the relevant act, the murder itself, established. Otherwise, we have no idea what the accused actually denied.
I suggest it is not clear what is really denied, because it is not definitively defined. There should be at least one case, against a Holocaust denier, in which the relevant crime, the Holocaust itself, is exactly established in all necessary details. I know of no such verdict. There are no judicial findings of fact concerning crime scenes, methods of killing, numbers of victims, time-frame of killings, perpetrators, bodies, or physical traces of killing. There are no judicial findings of fact concerning testimonies, documents or similar kinds of evidence. There are no judicial findings of fact concerning the existence of an intention under National Socialist rule to destroy the Jewish people in whole or in part. There are no judicial findings of fact concerning the existence of relevant decisions, plans or orders. In the verdicts to date against Holocaust deniers there are no judicial findings of fact concerning these matters, not even – and this is an essential point – not even in the form of a reference to precedent decisions. If one wants to claim something, it is naturally the scientific thing to do to refer some other verdict in which the matter is established exactly.
We don't even have that. This is the problem. As long as the court will not commit to certain specified crime scenes where these mass killings are supposed to have happened, as long as the court will not commit to at least one specified piece of evidence, then a conclusive finding of fact that a mass murder occurred is not possible. And no more possible is a conclusive judgment against denial of the relevant act. If the relevant underlying crime is not established by a binding, judicial finding of fact then the denial of that crime cannot be conclusively established either.
Now one might say, "What about the Nuremberg Trial? It's probably in there somewhere, the details." This is not the case. Let me read you the relevant passage of the Nuremberg verdict where gas chambers are mentioned. There it says and I quote – from the verdict of the Nuremberg Trial: "A certain number of the concentration camps were equipped with gas chambers for the wholesale destruction of the inmates, and with furnaces for the burning of the bodies. Some of them were in fact used for the extermination of Jews as part of the 'final solution' of the Jewish problem. Most of the non-Jewish inmates were used for labour, although the conditions under which they worked made labour and death almost synonymous terms. Those inmates who became ill and were unable to work were either murdered in the gas chambers or sent to special infirmaries, where they were given entirely inadequate medical treatment, worse food if possible than the working inmates, and left to die." End quote. That is all it says about gas chambers in the Nuremberg verdict. It is all stated in very general terms… "A certain number of the concentration camps," it says. It is not precisely stated where the gas chambers were. This means that a defence lawyer is left with no place to begin. It is also important to emphasize that the rules of evidence were nullified in the Nuremberg trials. Perhaps not all of them, but in substantial part.
It says here, in the London Charter which decreed laws specifically for this military tribunal, in Article 19: "The Tribunal shall not be bound by technical rules of evidence." That is a sentence that is worth pondering. That a military tribunal from its inception declares that it will not be bound by rules of evidence. That's rather remarkable. And further in article 20 [correction: 21]: "The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof." Interesting, right? "It shall not require proof of facts of common knowledge." But what are facts of common knowledge? It is usually the job of the courts to establish the facts, not presume the facts. It becomes somewhat clearer how this could have come about when one reads the following words of the American chief prosecutor, Robert H. Jackson. They are given in the transcript of the Nuremberg Trial, vol. 19 p. 440 [p. 398]: "As a military tribunal, this Tribunal is a continuation of the war effort of the Allied nations." I'll repeat: "As a military tribunal, the Tribunal is a continuation of the war effort of the Allied nations." Does a nation engaged in a war effort need rules of evidence as it seeks to burden its opponent with guilt?
I would now like to read you a passage from another verdict, in which one might assume to find the details of the Holocaust specified in legally binding fashion. This is from the so-called Frankfurt Auschwitz Trial. Here it says in the final verdict, and I quote: "The court lacked almost all usual forms of evidence available in a normal murder trial to create a true picture of actual events at the time of the murder. It lacked the bodies of the victims, autopsy records, expert reports on the cause of death and the time of death; it lacked any trace of the murderers, murder weapons, etc. An examination of the eyewitness testimony was only possible in rare cases. And further in another place: "The court thus was, in clarifying the crimes of the accused, almost wholly dependent upon witness testimonies." And further on again: "To this it must be added that there were hardly any witnesses who lived through the events at Auschwitz concentration camp as neutral observers." One can thus conclude from this verdict, or not even conclude but rather simply note what is said here, "The court thus was, in clarifying the crimes of the accused, almost wholly dependent upon witness testimonies." Such is the situation at the start of a trial for Holocaust denial, and it is also the situation at the end, because nothing is changed.
One gets to know, whether as defence attorney or as accused, absolutely nothing of what has actually been established as fact, because it is not given in the verdict. Neither in older verdicts nor in newer verdicts. There is a lot in the media and much can be read in books about it, but we want to hear it from the courts, we want to hear it stated officially. We want to know. Really know. One does not want to deny what is proven, but one wants to know what really happened, only one cannot find it stated officially, that's the problem. One is accused and condemned without being told authoritatively of what one is really accused. What should one have said instead – specifically? I'll come back to this later, how things go in a trial. When an accused wants to know what he should have said, he gets no answer. But more about that later. At this point I would like to add a very telling statement made by thirty-four French historians who issued a declaration in 1979. They did so, you should know, as representatives of mainstream Holocaust historiography.
The revisionist historian, Professor Robert Faurisson, had put forward technical arguments against the existence of gas chambers. In response to these counterarguments by Professor Faurisson, these thirty-four French historians made the following declaration … in 1979. Quote: "It must not be asked how such a mass murder was technically possible. It was technically possible because it happened. That is the required point of departure ( – point of departure! – ) of any historical inquiry on this subject. It falls to us simply to recall this truth: There is no debate about the existence of the gas chambers and there cannot be one." End quote. This also falls under the heading of initial trial conditions, because this is how the judges, the prosecutors, go on, as do many other lawyers and other people.
They … Through their actions they are clearly letting you know that you are not allowed to ask. This has had immense consequences. I am by no means the first lawyer to be punished for Holocaust denial. Please don't think that. I am perhaps the first lawyer to be imprisoned for it. But for years, lawyers have been repeatedly charged with Holocaust denial because they submitted evidence regarding details of the Holocaust. When submitting evidence, one necessarily has to phrase it as statement of fact, otherwise it will not be termed evidence. That means you have to claim as fact, what you want to demonstrate to the court. Otherwise it will be dismissed, on formal grounds. But when, as a defender of a Holocaust denier, one presents an argument, and says this and this is what really happened, and there is this and that expert report by which this and that is proven, and may it please the court to examine it – by asking an expert witness, for example – then this submission is rejected, and in addition the defender is then charged and sentenced for Holocaust denial. These things are not so well known because most lawyers don't make much of a fuss about it.
They are just given a fine, which they then pay, and then say or think to themselves, they'll never do it again, they'll never cause themselves the trouble again. But there are many, many cases of this nature. Still I have sometimes wondered why this should remain so unknown, this manner of dealing with the accused, with the law, punishing defence lawyers for the entirely normal performance of their professional duties. I find it important that the people should be able to learn of it. (Applause) There are many, many people, not just lawyers, but also scientists, of different types, who have been punished for Holocaust denial. I will not name many because it would become a task without end to name the many scientists and others who have been punished with fines, or many times even with prison sentences. I would like to mention just a few, for example, Germar Rudolf, who also was subjected to the treatment I just described.
He is a chemist and made certain observations – this is not the place to recite them. But he wrote some books on what he observed, truly scientific books, and because of these books he was twice given a prison sentence. In one case, I myself defended him. And the books were then destroyed, they were forbidden, they were placed on the Index, and were completely destroyed. All the books the authorities could get hold of were burned. There are masses of books that have been burned on these grounds, including those by Germar Rudolf, and one must say about this, one must explain why it happened. Here is a chemist who quite seriously looked into the matter, why one does not at least discuss what he says? For it was not discussed, it was not openly discussed. Should one repeat what he says, one can expect a prison sentence.
In other words, discussion is obstructed. How does one explain this in a political structure that presents itself as free? It's quite simple. One simply says he's a pseudoscientist. It's just that simple! Well, yes, I could tell you stories about that – At any rate, one then gets to the verdict and it's all about a pseudoscientist who denies the Holocaust. Haven't we already heard today the phrase: Bad science? We heard it in a different context, but the meaning is the same. When someone accused of Holocaust denial stands before the court and he describes how he came to not believe in the Holocaust, to doubt the Holocaust, to place the Holocaust in question, or to contest the Holocaust – there are various different levels – at any rate when he presents his case, – and I've experienced this myself as defence counsel – he is again, because of this declaration in court in his defence, he is charged and sentenced again for Holocaust denial.
Because he has indeed, in public, before the court, once again questioned the Holocaust, and so he is once again charged and sentenced. So that is prohibition of defence, not only for defence counsel, but also for the defendant himself. He may not defend himself, he may not discuss the question why he questions the Holocaust, on what grounds – what facts have brought him to do so. So, not just a prohibition of evidence, but a prohibition of defence. I want to quote something to you from the judgment against me from the Mannheim State Court. It states in the verdict itself: "The court gradually found itself forced to limit almost all defence rights of the accused." It then goes on "among others – " (in other words, as to which defence rights were limited) "for example, to speak to an issue, and ask questions of the witness Meinerzhagen." So ultimately they just took away my right to speak.
I was not allowed to express myself further, and I was only allowed ten questions. The questions I asked did not please the court, and I was not permitted to ask further questions. This is just one example. What is often done then is that a relatively newly introduced law is made use of, Code of Criminal Procedure, paragraph 252a. It was introduced in the 90's to tighten paragraph 130 section 3 relating to Holocaust denial, and possibly to tighten the whole of paragraph 130. This paragraph 252a enables the judge to require the accused or the defender to express themselves only in writing to the court. So, submissions and statements are to be presented only in written form, and not read out loud first. That's the normal way, to express oneself orally. It is in fact one of the most fundamental principles of German criminal law, of German criminal proceedings, the oral principle, that everything must be spoken out loud before the court.
There are different, good reasons why this should be, but this was overturned in the 90's. Apparently, there are things that one doesn't want to hear. And then when the judge gets the impression, now it is time, he commands the defender to communicate to the court in written form only. And that's exactly what happened in the trial of Ernst Zündel too. In other trials it was different, I could say everything I wanted to, the accused was nonetheless convicted, but at least I could say all I wanted to. But in the Zündel case and a few others, this speech prohibition was imposed. The result, of course, of communicating in writing alone, is that those listening don't get to know what the defender wants to convey. So, only the judges are aware of what the defender is trying to say, and not those listening. The public is excluded. In this connection I would like to quickly describe how things went at the trial of Ernst Zündel.
It got to be a bit of a muddle, I must tell you, it's no wonder since it is a bit complicated. It so happened in fact that this speech prohibition was imposed, and not only against me but against three other defenders as well. There were six defenders in all. Four Ernst Zündel chose for himself, and two were appointed by the court. Why this was done became clear afterwards. They wanted to have lawyers in reserve in case the others were removed. If there were only one defender and he became unavailable, the trial would have to start from the beginning again. So, doing this avoids having to start the trial from the beginning again. So, I and two other chosen defenders were allowed only written communication. And it was my opinion, and still is, that it is the duty of the defender to protect the interests of his client, and to make it clear when he is of the opinion that the legal standards which are expected in court are not being met, or are being broken. I was accused of betraying my duty as a defender. On these grounds, the judges dismissed me from the case.
But I am of the opposite conviction; it is precisely the duty of a defender, precisely in such difficult situations, to say: Stop, I cannot remain silent, an injustice is happening here. (Applause) And had I submitted to the prohibition imposed on me and made my submissions only in writing, then I might have given the impression that I found what was happening legitimate or correct. And I couldn't justify that. For the fact that I could not express myself orally was already a breach of the law. Of others I will not speak, but for this reason alone I continued to speak. And I explained why I continued to speak. I explained to them exactly what I am explaining to you. I explained why the use of this paragraph 252a, this prohibition of speech, this breach of the oral principle, was something I would not submit to. I explained it all to the Mannheim court.
In such difficult cases, it is sensible to make submissions in writing also, first to read them, and then to present them in writing, so everything is documented and in the files. I told them exactly why I would not submit to this speech prohibition, because I don't accept it as right – that's the reason in essence. And then it continued with my nonetheless reading a submission, or at least began to, I did not have permission to, I should have just handed it over, but I read it out. The judge, Justice Meinerzhagen, then told me to stop but I continued to speak on the grounds I've just explained, and it turned into an argument, back and forth. It's in the newspaper, Frankfurter Allgemeine Zeitung, end of 2005, beginning of 2006, quite well related, at least in part. So, there was a long back-and-forth, sometimes speaking over each other, until the microphone was taken away from me, at which point I had the cheek to continue speaking without a microphone. (Applause) This was referred to in the sentence.
It must be particularly reprehensible to do such a thing. And in the end, after much argument, it reached the point where Judge Meinerzhagen cut me off again, and declared that he would effect my exclusion as a defender from the proceedings. But it's not true that I was arrested there and then, that was later. Judge Meinerzhagen filed a request for my removal and the High Court in Karlsruhe decided in his favour and had me excluded from the proceedings as a defence attorney. However, before the High Court in Karlsruhe – No, pardon me, it had in fact decided, it had rendered its decision to exclude me. That is, the Karlsruhe court had me excluded as defender from the Zündel proceedings, but this decision was not yet final, an appeal was still possible. The time allowed for the appeal was not up, when a new sitting was scheduled for the Zündel trial to which I was not invited.
And a lawyer friend told me about it, and naturally I appeared, because the time for appeal was not up, let alone an appeal decision made. So, I sat down at the defence table. Judge Meinerzhagen then called on me to leave the defence table. So, there was another long back-and-forth principally as to whether my appeal deferred my exclusion or not. If it did, then I still had the right to sit there, if it didn't then I had no right to sit there. You can imagine who had which opinion. But the point is he had power on his side, and as he naturally took the view that the appeal did not defer my exclusion, I was to leave the defence table. I then answered that the time is now past when the German people will let themselves be oppressed. (Applause) So, then he ordered the police on duty to remove me from the courtroom, and a couple of policewomen came and stood before of me and asked me to leave the courtroom. So I said, "You'll have to carry me."
Basically, it all went quite civilly. The media naturally made a great show out of it; I'm supposed to have made a scene, but that's not true at all. It all went quite calmly. I said quite civilly to the officers, "You'll have to carry me." Which they then did. (Laughter) But as I was carried away I did call out one thing: "The German people will rise." (Applause) So, that's how it was. Anyway, the trial of Ernst Zündel then lasted ten more months. That's an important detail since I was accused at the time of trying to drag the trial out. I don't remember how long I was there a few weeks, a month or two but I was actually accused of "attempted procedural obstruction" due to the submissions which I made. Yet after my forced removal, the case went on for ten more months. The desire to finish the trial quickly, following my removal, was very quickly lost, it would seem. At any rate, Ernst Zündel was sentenced to five years imprisonment.
He has since been released in spring of 2010. He was in prison for seven years in total: two years in the USA [and Canada], for which he did not receive credit for time served, and five years here, so altogether seven years continuous imprisonment. And then, I myself was also brought to trial, as is well known at the court in Mannheim, where I was, in the first instance, sentenced to 3½ years imprisonment, for Holocaust denial, and for defaming the state, to wit, defamation of the Federal Republic of Germany. In other words, the charge actually reads "defaming the state" and I was accused of having defamed the Federal Republic of Germany in that I had said that Germany, since 1945, has stood under the foreign rule of the victors of the war. (Applause) And then I was convicted of attempted obstruction of justice. One must look at what I was accused of: "Attempted obstruction of justice." According to the verdict, I had made submissions which sought to bring the Holocaust into question, and because these submissions so obviously could not be successful, they could, therefore, only have been made with the intent to delay the trial. Brilliant logic, don't you think? If you make submissions which the court dismisses out of hand as meaningless, then one is seen as obstructing the court.
I was also convicted of assault against the court, because I supposedly, in effect, forced my submissions and position statements on the judges. A further conviction for attempted assault against the court was later quashed by the Federal Court on appeal. In the original verdict I was sentenced for assault against the court because I supposedly threatened the judges with a submission to the court. It was a submission about instructing the lay judges on the legal situation – for a lay judge naturally might not know the legal situation of Germany, in international law, and might perhaps make themself liable to prosecution, if they were to condemn a defendant on political grounds and without justification to a term in prison. That is at the very least perversion of the course of justice. I laid this problem out in some detail in my submission, namely, that both the professional and the lay judges might possibly have to answer one day before a court of the Reich if they convicted Ernst Zündel unjustly. (Applause) This was initially interpreted as a threat, and I was convicted of assault against the court.
This verdict was, however, overturned, for lack of any threat. And so in this case, exceptionally, the situation was indeed correctly assessed. For it was in fact not a threat, as I always argued, it was not a threat but a clarification, a warning. That is not punishable, it's not a threat. But in the media and Internet, yet again, the story is always that I was sentenced because I threatened the judges, which sounds much better than if one said I was convicted because I made claims which brought the Holocaust into question. And, of course, I was also convicted of inciting racial hatred. Because when one places the Holocaust in doubt, one thereby defames the victims. And that is inciting racial hatred. Such is the logic. If you don't understand it, I can't help you. For if you don't understand it then you have a healthy sense of legal proportion. (Laughter) (Applause) Anyway, the appeal brought about a reduction of three months, so, in the end, I was in prison for three years and three months. I was also forbidden to practise law for five years, which is no longer relevant, however, as I have been excluded from the legal profession. I have to choose carefully what I want to say now.
One of the most important points is simply that one wants to know what is seen as legally correct by the court. One would like to know what the problem was. Over and over, I have asked the courts for a discussion of the legal basis for the "self-evidence" of the Holocaust. Because it's like this, it's a little complicated. When one submits evidence that presents some fact that brings the Holocaust into question, then that evidentiary submission is declined on the grounds that the Holocaust is self-evident. This is in fact a quite normal procedure that one doesn't have to produce evidence for something that is self-evident. It is entirely superfluous. If something is self-evident there is no need to produce further evidence for it. The text book example for this is that it is self-evident that rain falls downward from above and not upward from below.
And if in a criminal trial the question arose as to where the rain falls from, then a motion to produce evidence by the defence could be denied on the grounds it is self-evident that rain falls downward from above. One does not need to produce evidence for it. So in such circumstances it is normal, though of course it is still always possible that perhaps in a given case the rain came from the side, with the wind, and then one must produce evidence: What was the weather like on that day? Was it windy or not? But that's getting into details. So just on the subject of self-evidence… To say that something is self-evident means that it is entirely obvious to any layman at any time that it is verifiable in reference works, in books. And it assumes… I would not like to withhold from you the exact definition, because it's really important what "self-evident" actually means. This is from a book on evidence in criminal trials, a reference book for lawyers: "Historical facts count as self-evident when, on the grounds of historical research, they are generally considered proven, such that anyone can inform himself about them through books, encyclopedias and similar reference works without specialized subject knowledge."
There's something else though that is very important here, in the same book, at another place: "The precondition for the acceptance of the self-evidence of a matter is the unchallenged nature of the matter under consideration." In other words, only something that is unchallenged can be self-evident. It must hold universal acceptance in science. And so one understands why so many scientists are stigmatized as pseudoscientists. Because then one can ignore what they say, and self-evidence is not challenged. "If, however, the correctness of a matter is disputed in the historical literature…" Again: "If the correctness of a matter is disputed in the historical literature, then it does not become self-evident simply because much has been written and published about it." In other words, the spread of a claim says nothing about its self-evidence. Motions to hear evidence regarding the Holocaust are routinely rejected, in my case, specifically, were rejected on the grounds that the Holocaust is self-evident.
Over and over, in trial after trial, I have submitted motions to discuss this question of self-evidence. And these motions were also rejected on the grounds that the Holocaust is self-evident. That's how it is, I cannot put it any other way. A discussion of the self-evidence of the Holocaust is superfluous because the Holocaust is self-evident. So, goes the reasoning in a nutshell, it is a circular argument. And I have also read as additional grounds for dismissal, that it is a misuse of the law to make such a motion, because, as was the case at my trial, it would mean inducing the court to deal with the subject. That's what it says, to deal with – namely, to deal with revisionist theories, but then it is precisely those theories which form the basis of the indictment.
In other words, it would be a misuse of the law to try to induce the court to discuss the basis of an indictment. There's much more I could say, but to be as brief as possible… The Bavarian Bar Disciplinary Tribunal had to consider if I should be excluded from the legal profession. And there too I made this request, I made motions to hear evidence relating to the question of self-evidence, and they too were rejected on the grounds that the Disciplinary Tribunal had no doubt that the Holocaust is self-evident in view of all the widely available written, pictorial and sound material known to it [that is, the Tribunal]. I then asked the Tribunal – my defender too, we both made similar requests – to inform us upon what .... material they based their belief in the Holocaust's self-evidence. This question was dismissed on the grounds that the Holocaust, and other crimes of violence by the National Socialists against the Jews, are self-evident. So there was no answer.
Upon what material did the Tribunal base its opinion? No answer, other than a very vague one, to wit, to pass it all off on "newspapers … " and I quote, "newspapers, television and radio material, reference works and history books." End quote. In other words, if one wants to know why one has been convicted, then one should look in the newspapers. It is not laid out in the court's decision, it's not in the verdict, but is to be read in the tabloids, apparently! So, there's an essential point here. The newspapers, what's in the newspapers, then? A French historian by the name of Jacques Baynac, wrote in the Swiss newspaper, Le Nouveau Quotidien de Lausanne in September 1996. When it comes to the existence of Nazi gas chambers, he said, one can only observe "the absence of documents, physical traces and other material evidence." One can only observe "the absence of documents, physical traces and other material evidence." This admission by a French historian, who is himself a defender of the mainstream view of Holocaust history, does it not show that there is a need for discussion regarding the self-evidence of the Holocaust? Another historian, Ernst Nolte, wrote in his book The Causal Nexus and I quote: "The witness testimonies are, for the most part, based on hearsay, and sheer speculation."
The few eye-witness reports that we do have contradict one another in places, and raise questions regarding their credibility." In 2010 the historian Hans Mommsen was quoted in the Süddeutsche Zeitung where he said, "The Holocaust did not result from any – any – order by Hitler." Again, this statement shows that there is a need for discussion regarding the "self-evidence" of the Holocaust. The last statement I would like to read is from Fritjof Meyer. In 2002 he published an article in the scholarly journal Osteuropa under the title "The Number of Victims at Auschwitz: New Insights from New Archival Discoveries" in which he wrote about the question of the crime-scene. (He was then a senior editor at Der Spiegel by the way… ) So, in May 2002 this article appeared and in it he states that the genocide did not happen within Auschwitz concentration camp itself – again, the genocide did not happen within Auschwitz concentration camp itself, but rather, and I quote, "probably in two farmhouses outside of the camp."
So, the genocide did not happen inside the camp but "probably" in two farmhouses outside of the camp. Again, this too shows the need for discussion of the "self-evidence" of the Holocaust. The Federal Constitutional Court – I'll leave some of it out, but this is very important, I feel – what position does it take regarding the offence of Holocaust denial? The law is a restriction on freedom of speech and opinion, and since it forbids a specific opinion, it is a "special law" [it creates an exception to other laws]. Such a special law is unconstitutional as it forbids a specific opinion [i.e., exceptionally]. It was determined by the supreme court itself in a relatively recent decision, in 2009, that the law is indeed a special law. And this is indeed a step in the right direction that the law has been officially determined to be a special law. It just remains to draw the natural conclusion: to declare the law unconstitutional and abolish it, the "offence" of Holocaust denial. Now I wouldn't want to keep from you on what grounds they nonetheless did not abolish it, the justifications given for this special law by the supreme court. Namely, that the Federal Republic of Germany … In this decision from 2009, the so-called Wunsiedel decision, the Federal Constitutional Court declared that the Federal Republic of Germany is "by way of exception" allowed to keep special statutes such as paragraph 130.
That is, in practice to criminalize a particular opinion with implicit prohibition of defence and prohibition of evidence. In short, Germany is allowed to keep this special statute because of, and I quote: "The unique, historically determined identity of the Federal Republic of Germany" as the antithesis of National Socialism. In other words, it's justified because it's the Federal Republic of Germany. This is naturally a very pretty formulation, a fine way of dressing up an arbitrary decision, a clear case of judicial despotism. They also gave a second rationalization, which is not stated so boldly but which is given in another part of this decision. It says there – well, it's not very clearly defined but the "unique crimes" of Nazism are invoked. And one is thereby led to conclude that in the case of a "unique crime" the presentation of evidence is ["by way of exception"!] superfluous and punishable.
The presentation of evidence is superfluous and punishable when one is dealing with a unique crime. Do you find any logic in that? Anyway, those are, in the end, the two pillars on which the criminalization of Holocaust denial is based. The legal-philosophical or legal grounds for justifying the criminalization of Holocaust denial is the historical identity of the Federal Republic of Germany and the uniqueness of the crime. Because of that no evidence is required. So far so good for them. Appeals on evidentiary and constitutional grounds are regularly rejected as being "self-evidently" ungrounded and this has the effect that such a verdict itself does not need to be legally grounded. If something is self-evidently groundless one needs no grounds to reject it. It's very practical! So, no answer there either. What is one in fact allowed to say? One gets no answer to that question.
During the trial of Ernst Zündel I myself heard Judge Meinerzhagen say the following. If it were only I saying it, probably no one would believe me. Naturally, it's not in the court transcript. But the Berlin newspaper Die Tageszeitung the so-called TAZ has done us the service of reporting it, of reprinting this statement by Judge Meinerzhagen. So I will now quote from Die Tageszeitung, the TAZ of 9 February 2007, in which it reported as follows on the trial against Ernst Zündel: "In the end, the court tersely rejected all evidentiary motions on the succinct and, to some of the anti-Fascists present in the court, shocking grounds that it was completely irrelevant whether the Holocaust took place or not. Its denial is illegal in Germany and that is all that matters to the court." End quote. Thus wrote the TAZ.
To conclude, I'm leaving some things out, of course… … to conclude, or rather in preparation for my conclusion, let's consider how we can change things.
I see all over the place, one reads on the Internet, in the papers, that people want to distance themselves from the Nazis. There are people, for example, who know full well what is happening [i.e., the abuses we're discussing], who nonetheless say, "But I'm not a Nazi." And they distance themselves from others who might be called Nazis. They say, "Don't call me a Nazi. I'm not one. I'm not one of them, those Nazis." That is, they believe that only they would unjustly be described as evil Nazis; the others would justly be described as evil Nazis. It's been like that for me. I was first called a Nazi many years ago at an information booth protesting experiments on animals. People used to call us Nazis, "You must be Nazis, Hitler was also a vegetarian." And so I began to ask myself for the first time what Nazis actually are, because I couldn't reconcile the image of Nazis I had at that time with the idea that I should somehow be a Nazi, because I stood up for animal rights. The next time I was called a Nazi was in relation to philosophy.
When one studies Plato, when one speaks about Plato … Plato counts as a kind of forerunner of the National Socialists, a forerunner of Hitler, someone who prepared the way, because he was, for example, a severe critic of democracy, he rejected democratic forms of government quite decisively. This is one of the reasons some people practically demonize Plato, at least in part. Or one asserts – I've also read this too – that he said something quite different about democracy. Which isn't true, but that's another matter. Here too people try to change our picture of things. If one can't attack Plato directly, one simply says he said something different, even though what he says stands unambiguously in his book The Republic. It is not to be denied that he was a severe critic of democracy.
Anyway, those were the first times that I was called a Nazi, and after that I became rather interested in what a Nazi really is. One must build a picture for oneself. One must get to know people whom others call Nazis, and also people who themselves call themselves Nazis. Both, they're not necessarily the same! But it is interesting to get to know both, then one get a picture for oneself. One should do so. Indeed, that's the decisive thing, that one does not just go along with this ostracism. Because it's actually rather hard to be a "non-Nazi"! For anyone who says anything meaningful, or does anything useful, anything healing, must sooner or later expect to be called a Nazi. (Applause) Which means of course that he should not be listened to.
Suddenly, he is labelled a Nazi, and from then on one is not to listen to him any more, because one could be corrupted, one could be … um, well, what really? I cannot understand what people are afraid of. Probably they are much less afraid of the people who are called Nazis, than they are afraid of being ostracized themselves if they have anything to do with a Nazi. It's not the Nazis who are dangerous, but rather the consequences of letting oneself be seen with someone who's called a Nazi. What matters, then, is not what is true and what is untrue, what is useful or harmful; all that matters is who has said it. And when someone who is called a Nazi says something, then it must be false. One doesn't want to have anything to do with it, it is in any case false, it is worse than false, it is repulsive, by definition. Now, a very important point in relation to this. These days, the Internet is full of statements by groups claiming to uphold various ideals who at the same time want to distance themselves from Nazis and right-wing extremists – they say they want nothing to do with them.
For example, a few months ago, I read a call to demonstration against the ESM, [European Stability Mechanism]. At first it was only against the ESM and then "Against the ESM and Right-wing Extremism" that was the motto for the demonstration. For me, when someone distances himself in this sort of way it shows that he does not understand what is going on. (Applause) And I would not want to join such a group because [of the lack of insight] – not because they might not want me, but because [of the lack of insight]. When one wants to avoid being called a Nazi, and there are many such people, most people want to avoid being called a Nazi. What does that mean – what is the result? The inevitable result is that one must also avoid the essential issues. For when one addresses serious issues, when one gets to the heart of the matter, then the danger of being called a Nazi arises very quickly. But when one avoids the essential issues, one is ineffective, totally ineffective. One can work for what already is, but certainly not for change.
One more… I really will finish soon. I would like to quickly consider who, in particular, is called a Nazi. This is a very interesting matter to me.
Naturally, if one is a Holocaust denier, a so-called Holocaust denier, or if one defends a nationalist point of view, one is very quickly called a Nazi. When one merely defends the interests of one's people, then… "Nazi." (Applause) When one speaks of debt slavery, a classic example… "Nazi." (Applause) And there's another fine old word which is closely connected with it: "anti-semite". They are almost identical – "anti-semite" and "Nazi" – in the propaganda, so to speak, of the opponents, the Nazi opponents. Anyone who, for example, brings up the following terms in connection with Jews is denounced as a right-wing or left-wing anti-semite, and sometimes punished. The following terms, for example: international high finance, US East Coast, debt slavery, capitalism, financial crisis, globalization, democratization, High-grade Freemason, EU, UN, or New World Order.
So, for example, anyone who brings up these terms in connection with Jews, will be denounced as a right-wing or left-wing anti-semite and punished. (Applause) Equally, anyone who remarks that the currency markets, the stock exchanges, the [so-called] democratic parties and the media are in Jewish hands. For example, the lawyer Horst Mahler, was sentenced in 2009 to over 10 years in jail for Holocaust denial and anti-semitic remarks and was arrested in the courtroom. That is, he was taken into custody immediately after sentencing – just as happened to me. After my sentence was announced, I was arrested.
I return now to my beginning sentence, which is also my closing sentence: "To think what is true, to [sense] what is beautiful, and to want what is good." This implies recognizing and pointing out lies, this implies recognizing and pointing out inhumanity, this implies recognizing and pointing out injustice. And with this too go certain qualities that are of particular importance today: the consciousness of immortality, steadfastness and incorruptibility. With these qualities perhaps we may create a world for the children who are with us today, a world in which one can speak the truth without being punished. (Applause)
Thank you for the warm reception.
Sylvia Stolz's reply to accusations and attacks in the German press following the AZK speech (above)
*Watch Sylvia Stolz 2013 "A Personal Reply" w. English Subtitles also known as "Sylvia Stolz - Reply to Holocaust Denial accusations"*
Alternative link here.
"That is what the so-called "enlightened" understand by "freedom", and "culture", "tolerance", "diversity", and "education for responsible citizens". Let them praise themselves and each other to the skies as "upstanding", or as "clever", or "brave"; such conceit would be simply laughable were it not that this brutal machinery of repression, cloaked in the mantle of the law has such existential consequences for the German people, and for other peoples." |
Transcript of English subtitles
As has recently become widely known, on the 24th of November 2012, at the 8th Anti-Censorship Conference in Chur Switzerland, I gave a talk entitled "Prohibition of Speech, Prohibition of Evidence, and Prohibition of Legal Defense: The Reality of 'Freedom of Expression'".
For days now since then, a concerted campaign has been underway against myself and Ivo Sasek, the Organizer of the Anti-Censorship Conference.
Media articles in Switzerland have appeared under headlines like:
"Holocaust Denier Takes Big Stage in Chur"
"Sasek Center Threatened with Expulsion from Civic Hall"
or:
"Criminal Charges against Stolz and Sasek"
In an effort to construct a basis for charges against Ivo Sasek and myself, people have tried to pass off the content of my talk as an indirect denial of the Holocaust.
In my talk, I indeed spoke of my experiences as a defense Attorney for so-called Holocaust Deniers. The background is this:
Innumerable persons in the Federal Republic of Germany, in the Republic of Austria, in Switzerland, in France, in Spain, in Greece, and many other lands have been sentenced to punishment because they have questioned, or "brought into doubt" the Holocaust, as defined as a systematic murder of Jews. In some cases, long prison sentences have been imposed,as, for example, against the Lawyer, Horst Mahler.
I myself was sentenced for using a defense strategy which "brought the Holocaust into doubt" in my work as a Defense Attorney, to three years and three months imprisonment. Numerous Lawyers have been sentenced with fines because they have attempted to submit evidence in defense of their clients. Many defendents have been slapped with new charges of "Holocaust Denial" and sentenced to punishment after trying to explain to a Court, with the sole intention of defending themselves, what facts or circumstances had led them to question, or "bring into doubt" the Holocaust.
In my talk, I explained that the Holocaust has not been defined in a legally binding way; and so these judgements violate the principle of clarity in criminal law. I further pointed out that in the various judgements against so-called Holocaust Deniers, no findings of fact have been presented.
No findings of fact.....on crime scenes, killing methods, number of victims, or means of evidence. Not even in the form of reference to previous judgements.
Moreover I pointed out that in the criminal judgements against so-called Holocaust Deniers, no finding of fact has been presented showing an expressly developed intention by the National Socialist regime to destroy Jewry, either in whole, or in part.
I cited passages from the so-called Nuremberg Judgment, and the judgment from the Frankfurt Auschwitz trial.
I cited Historians like Jacques Baynac and Professor Ernst Nolte in order to show that there is a real need for discussion when it comes to the "obviousness" of the Holocaust.
On January 16th, 2013, the Swiss newspaper, "Tages Anzeiger" reported as follows, and I quote:
"'The Holocaust cannot be proven in a Court of law', Stolz said in Chur.'The bodies, the traces of the culprits and the weapons needed for proof are missing'"
(end quote)
Further on it reports:
"Professor Marcel Alexander Niggli of Freiburg University does not accept Stolz' view"
His commentary was plainly made in relation to the version put forth by the Tages Anzeiger which had little to do with the actual contents and wording of the talk.
"There have been", Professor Niggli continues in the article, "numerous major legal-evidentiary proceedings in which it has been forensically proven that the Holocaust happened"
To which one can only reply:
If Professor Niggli wants to make a useful contribution, he can name the specific, concrete findings of fact of the relevant Court decisions together with their reference numbers.
In particular he can name some criminal judgments against Holocaust Deniers which have produced - directly or by reference to previous cases - evidentiary findings of fact concerning concrete details of the Holocaust.
His claim that "criminal proceedings should be initiated against Stolz and perhaps the Organizer" because the Holocaust was "indirectly denied" in my presentation contributes little to factual discussion or establishment of proof.
The Newspaper "Sud-Ost Schweiz" reported on January 17, 2013:
"The Swiss lawyer Daniel Kettiger has filed a complaint against Stolz and Sasek for denial of the Holocaust.
Kettiger refers in his criminal complaint to passages in the talk in which Stolz charged that the Holocaust had never been proven before a court of law, and that there was also no evidence of an 'intention by the National Socialist regime to destroy Jewry either in whole or in part'"
To which I can only reply, it appears that Kettiger has not informed himself about the real contents and wording of my talk. He appears to consider it appropriate to fabricate a case of "Holocaust Denial" based on his OWN formulations.
For years now, anyone claiming that the Holocaust has not been proven in the sense of a systematic murder of Jews has been prosecuted for "Holocaust Denial". Still one can hardly mean to initiate criminal proceedings against Ivo Sasek and myself and rely on phrases that derive from journalists or complaint filers.
Anyone can compare the reports about my presentation with the contents and wording of the talk itself.
And if, nonetheless, a criminal proceeding is opened against us, the question is bound to arise more and more in public:
"What's that all about?"
"Why do they want to prevent any criticism about the way in which the trials against so-called Holocaust Deniers have been conducted?"
"Why do they want, with all their might, to prevent precisely that?"
From reading the articles in the media it's clear as well, that the writers of the articles don't have much regard for the real facts of the case.
For example, the "Tages-Anzeiger" of January 16, 201, claims that:
"Sylvia Stolz, as defense Attorney in the criminal trial against Ernst Zundel threatened the two presiding Judges with the death penalty for Slandering the People, and Aiding and Abetting the Enemy."
No such threat, however, can be found in the records of the appeal decision of the Federal Court of December 2, 2008.
My submission therein merely pointed out to the judges of the Mannheim District Court that (given the illegitimacy of our current constitution) they might some day be answerable to a Reich court if they judged Ernst Zündel unjustly.
In the "Sud-Ost Schweiz" of January 14, 2013, Ivo Sasek is described as a "sectarian Christian". Well, since that much has been said already. the fact that he is an independent-minded, self-reliant, undogmatic, critical, courageous Christian is indeed something that no one who knows him would deny.
There are already concrete results to the campaign. The officials responsible for the Civic Hall in Chur have informed Ivo Sasek, in a letter to him on January 16, that they are compelled, on account of "recent events" and the reports about them in the papers, to forego further rentals of the Civic Hall to him.
In the "Sud-Ost Schweiz" of January 16, 2013, the Hall manager is quoted as follows:
"We are currently trying to determine whether radical-right material was disseminated in November."
As experience has shown, "radical-right" is the term for people who represent the National standpoint, for people who stick up for the interests of their own folk.
It might be pointed out as well that even according to the Constitutional Court of the Federal Republic of Germany:
"The expression and/or dissemination of so-called radical-right or National Socialist thought is not a sufficiently specific legal criterion for a citizen to be forbidden the expression and/or dissemination of specific ideas on that basis".
So reads a decision of December 8, 2010.
A woman who was in the audience at Chur, later passed along to some acquaintances a copy of my work "So Much for Freedom of Expression", and was banned as a result by a Cultural Center in Schleswig-Holstein on the grounds that "in the said work by Sylvia Stolz, denial of the Holocaust is legitimized; and Holocaust denial is a criminal offense".
The fact is, "So Much for Freedom of Expression" DOES demonstrate, on the basis of the trial records themselves, that the judgments against so-called Holocaust Deniers are arbitrary and legally untenable.
It might be pointed out in this connection that when a behavior is legitimized(legalized), that means that it is not against the law and therefore not deserving of punishment; for exactly that is the criminal-legal meaning of the term used by the Cultural Center, "legitimation".
The campaign against Ivo Sasek and me follows the same pattern as those against many others. Unwanted views are attacked, and those who hold them are persecuted with punishments as needed. No point-of-view other than the authorized one may be heard. Anyone who expresses something other than the prescribed opinions must be either excluded or fired. Opposing voices, be they scientific or legal are dismissed as "pseudo-scientific" or "hostile to the law". Anyone who so much as points out arbitrary abuses, or injustice against Germans is not welcome anywhere. Where necessary, coersion is applied to decision makers. Independent thought is not wanted.
That is what the so-called "enlightened" understand by "freedom", and "culture", "tolerance", "diversity", and "education for responsible citizens". Let them praise themselves and each other to the skies as "upstanding", or as "clever", or "brave"; such conceit would be simply laughable were it not that this brutal machinery of repression, cloaked in the mantle of the law has such existential consequences for the German people, and for other peoples.