- Examining if faxed Holocaust denial to the Internal Revenue Service can be classified as sedition.
Criminal law establishes boundaries for free speech in instances of crowd incitement and Holocaust denial, as the Federal Constitutional Court affirms. Nevertheless, sending private thoughts to an authority is not penalized.
This was the stance of the Munich II Regional Court in the Sylvia Stolz case, a resident of Ebersberg in Upper Bavaria, who transmitted a fax to the tax office and was ruled innocent. The Fourth Criminal Chamber, among other factors, cited the "high data sensitivity of tax authorities" and viewed the document as a protest against a tax procedure, treating it accordingly.
The prosecutor's office submitted an appeal against the judgment, leading to the case's current hearing at the Federal Court of Justice in Karlsruhe. The key issue is when distribution can be assumed. The Third Criminal Senate will deliver its verdict on September 25th (Case No. 3 StR 32/24).
339-page submission
Stolz, who failed to attend the BGH hearing, previously served two prison sentences for crowd incitement. In 2021, she dispatched a 339-page letter to the Munich Tax Office. Initially, it allegedly addressed only a tax matter on the first page. Subsequently, on pages 36 to 89, the defendant denies the widely acknowledged Holocaust. Elsewhere, Stolz expresses prejudice towards foreigners and discusses coronavirus policy.
Suspicions of Stolz being a "Reichsbürger" prompted the tax authority to involve the police, leading to the case's progression – first in Munich, now in Karlsruhe.
"A certain dissemination is enough"
The Federal Prosecutor's Office argued that even a fax to the tax office could lead to extensive distribution. The sender lacks control over the individuals who receive the document. This is sufficient for dissemination, asserted the public prosecutor: "A certain dissemination is enough." Ultimately, the controversial sections could potentially be presented in a public trial.
Stolz's lawyer countered that if forwarded to law enforcement agencies, only those engaged in the matter would engage with it – a limited circle of individuals. No official would duplicate such a document and distribute it across the authority or forward it to the media.
At what point do freedom of expression boundaries end?
Additionally, the lawyer argued that the incitement of the masses paragraph cannot be arbitrarily applied, considering the exception to freedom of expression enshrined in the Basic Law, which carries a maximum sentence of five years. Otherwise, one could only discuss controversial crimes only with two or three trusted individuals.
Chief Judge Jürgen Schäfer labeled it an intriguing legal question. He also entertained alternative scenarios: What if one sends an objectionable letter to a private individual?
The prosecution and defense hold varying opinions on whether the Regional Court's arguments were coherent or contradictory and whether legal errors were committed. If the BGH finds inconsistencies or legal errors, the case may need to be readdressed.
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