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"In a country under the rule of law, it is not up to the government to decide," Merkel said. "Mutti" is trying to deflect the blame again: In this very special

by Kristine1975 11y ago

"In a country under the rule of law, it is not up to the government to decide," Merkel said. "Mutti" is trying to deflect the blame again: In this very special case (§103 StGB), the law mandates that the government authorize the prosecution. Otherwise there is no case.

bayesian_horse 11y ago
The government may have the right to stop a complaint regarding this law, but that doesn't mean that there is no moral obligation for the government to not stand in the way of law. She's not deflecting blame. For one thing, it's not Merkel that made the decision. Secondly, the blame would have been less if the government stopped the complaint. That would have been the easy way out.
- bayesian_horse 11y ago
  I tried without "triple negation". Doesn't work as well. There is a moral obligation for the government to honor that law, but that in turn doesn't mean they have to give permission or that they don't have permission. Yes, the issue is that complicated.
  - rndgermandude 11y ago
    StGB §104a explicitly states that the German Federal Government has to consent to any prosecution under StGB §103 (the "libel against foreign head of state" paragraph of the law). §103/104 is very special in that regard. So yes, the government had to give explicit permission to prosecute in this particular case. The gov't could have honored the law by just saying "we don't consent to the prosecution", they did not however, and Merkel as the head of the government has the responsibility for that decision; whether you agree with the decision to prosecute or not. PS: German media is reporting that according to Steinmeier, German Foreign Secretary, the cabinet had a tie when voting on prosecution or not, with Merkel's vote breaking the tie in favor or prosecution.
    - bayesian_horse 11y ago
      The government has a moral obligation to consider the request and saying "we don't consent" does not satisfy the obligation. Another important consideration is that exercising the right to deny the prosecution would have taken away power from the judiciary. Germany is in the process of making this point to Poland and Hungary, where the independence of the judiciary is under attack. A denial would have weakened that argument a lot.
      - rndgermandude 11y ago
        Just no. The laws/paragraphs in question are special in that they explicitly state the German government has to allow the any prosecution under that law/paragraph. Of course the gov't has a moral and also legal obligation to consider the request, consideration does not imply they have to follow the request. If the government made a new law requiring gov't consent before prosecutions or if they tried to hinder a prosecution under any existing law not having such a "government must consent" paragraph, then you might have a point; here however, you do not.
- gaur 11y ago
  > but that doesn't mean that there is no moral obligation for the government to not stand in the way of law. My eyes keep glazing over... can you reword without the triple negative?
- sievebrain 11y ago
  It is clearly Merkel who made the decision. The law requires approval at that level, she is the one who announced the decision, the buck stops with her. This is really terrible news for Germany and the EU as a whole. Merkel has said "this is a bad law and we have the option to ignore it, but we will prosecute anyway". Who rules Germany now, exactly? Is it Merkel or is it Erdogan? And if it's the latter, which is what it looks like, then how much influence does Turkey have over the EU as a whole?
  - bayesian_horse 11y ago
    You obsess over singular persons having power to do something. But in reality, Merkel is not at all free to decide this issue. For that matter, the government as a whole is not free to decide this issue, regardless where "the buck" stops. Nor is Erdogan calling any shots, because he is only using an option that German law provides to any organ of a foreign state. To any Human Being actually, considering that there are cases of personal defamation pending. Nothing special about Erdogan, except that he is exerting that option rather spectacularly to his own detriment. The sad thing about this issue is that obviously a lot of people don't bother to appreciate the complexity of the issue and want to frame it as a question of who is in power and who is calling the shots. If you don't want to be ruled by dictators, start recognizing law and institutions at work, rather than attributing everything that happens to the power and will of singular persons.
    - projectramo 11y ago
      ^^^^^ This. This should be restated at the root level so everyone could see it.
    - hussong 11y ago
      Most people seem to focus on the political side of this whole affair, but at the same time it is clearly a legal case as well (and a rather interesting one) with hundreds of pending legal complaints
    - matthewmacleod 11y ago
      I would point out that the German government explicitly is free to decide whether or not prosecution continues. I don't think it's a good idea that this is the case, but it is.
danielvf 11y ago
Here's the relevant law about deliberate defamation of foreign heads of state. (Up to five years in jail OR a fine.) https://dejure.org/gesetze/StGB/103.html https://dejure.org/gesetze/StGB/103.html Anyone know where the section is on the government required authorization of prosecution?
- germanier 11y ago
  § 104a StGB
- kafkaesq 11y ago
  Section 104a - Conditions for prosecution Offenses under this chapter shall only be prosecuted if the Federal Republic of Germany maintains diplomatic relations with the other state, reciprocity is guaranteed and was also guaranteed at the time of the offense, a request to prosecute by the foreign government exists, and the Federal Government authorizes the prosecution.
  - danielvf 11y ago
    Thanks to both you and germanier.
- donquichotte 11y ago
  Article 103 appears to state that the insulted party must have been in Germany on official duty during the occurance of the insult.
  - Xylakant 11y ago
    Heads of state or members of the government on official duty. Since Erdogan is a head of state the requirement does not apply.
  - germanier 11y ago
    It needs to be parsed like this Whosoever insults [a foreign head of state], or, [with respect to his position, a member of a foreign government who is in Germany in his official capacity], or [a head of a foreign diplomatic mission who is accredited in the Federal territory] shall be liable to imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years.

bayesian_horse 11y ago

The government may have the right to stop a complaint regarding this law, but that doesn't mean that there is no moral obligation for the government to not stand in the way of law. She's not deflecting blame. For one thing, it's not Merkel that made the decision. Secondly, the blame would have been less if the government stopped the complaint. That would have been the easy way out.

bayesian_horse 11y ago
I tried without "triple negation". Doesn't work as well. There is a moral obligation for the government to honor that law, but that in turn doesn't mean they have to give permission or that they don't have permission. Yes, the issue is that complicated.
- rndgermandude 11y ago
  StGB §104a explicitly states that the German Federal Government has to consent to any prosecution under StGB §103 (the "libel against foreign head of state" paragraph of the law). §103/104 is very special in that regard. So yes, the government had to give explicit permission to prosecute in this particular case. The gov't could have honored the law by just saying "we don't consent to the prosecution", they did not however, and Merkel as the head of the government has the responsibility for that decision; whether you agree with the decision to prosecute or not. PS: German media is reporting that according to Steinmeier, German Foreign Secretary, the cabinet had a tie when voting on prosecution or not, with Merkel's vote breaking the tie in favor or prosecution.
  - bayesian_horse 11y ago
    The government has a moral obligation to consider the request and saying "we don't consent" does not satisfy the obligation. Another important consideration is that exercising the right to deny the prosecution would have taken away power from the judiciary. Germany is in the process of making this point to Poland and Hungary, where the independence of the judiciary is under attack. A denial would have weakened that argument a lot.
    - rndgermandude 11y ago
      Just no. The laws/paragraphs in question are special in that they explicitly state the German government has to allow the any prosecution under that law/paragraph. Of course the gov't has a moral and also legal obligation to consider the request, consideration does not imply they have to follow the request. If the government made a new law requiring gov't consent before prosecutions or if they tried to hinder a prosecution under any existing law not having such a "government must consent" paragraph, then you might have a point; here however, you do not.
gaur 11y ago
> but that doesn't mean that there is no moral obligation for the government to not stand in the way of law. My eyes keep glazing over... can you reword without the triple negative?
sievebrain 11y ago
It is clearly Merkel who made the decision. The law requires approval at that level, she is the one who announced the decision, the buck stops with her. This is really terrible news for Germany and the EU as a whole. Merkel has said "this is a bad law and we have the option to ignore it, but we will prosecute anyway". Who rules Germany now, exactly? Is it Merkel or is it Erdogan? And if it's the latter, which is what it looks like, then how much influence does Turkey have over the EU as a whole?
- bayesian_horse 11y ago
  You obsess over singular persons having power to do something. But in reality, Merkel is not at all free to decide this issue. For that matter, the government as a whole is not free to decide this issue, regardless where "the buck" stops. Nor is Erdogan calling any shots, because he is only using an option that German law provides to any organ of a foreign state. To any Human Being actually, considering that there are cases of personal defamation pending. Nothing special about Erdogan, except that he is exerting that option rather spectacularly to his own detriment. The sad thing about this issue is that obviously a lot of people don't bother to appreciate the complexity of the issue and want to frame it as a question of who is in power and who is calling the shots. If you don't want to be ruled by dictators, start recognizing law and institutions at work, rather than attributing everything that happens to the power and will of singular persons.
  - projectramo 11y ago
    ^^^^^ This. This should be restated at the root level so everyone could see it.
  - hussong 11y ago
    Most people seem to focus on the political side of this whole affair, but at the same time it is clearly a legal case as well (and a rather interesting one) with hundreds of pending legal complaints
  - matthewmacleod 11y ago
    I would point out that the German government explicitly is free to decide whether or not prosecution continues. I don't think it's a good idea that this is the case, but it is.

danielvf 11y ago

Here's the relevant law about deliberate defamation of foreign heads of state. (Up to five years in jail OR a fine.) https://dejure.org/gesetze/StGB/103.html https://dejure.org/gesetze/StGB/103.html Anyone know where the section is on the government required authorization of prosecution?

germanier 11y ago
§ 104a StGB
kafkaesq 11y ago
Section 104a - Conditions for prosecution Offenses under this chapter shall only be prosecuted if the Federal Republic of Germany maintains diplomatic relations with the other state, reciprocity is guaranteed and was also guaranteed at the time of the offense, a request to prosecute by the foreign government exists, and the Federal Government authorizes the prosecution.
- danielvf 11y ago
  Thanks to both you and germanier.
donquichotte 11y ago
Article 103 appears to state that the insulted party must have been in Germany on official duty during the occurance of the insult.
- Xylakant 11y ago
  Heads of state or members of the government on official duty. Since Erdogan is a head of state the requirement does not apply.
- germanier 11y ago
  It needs to be parsed like this Whosoever insults [a foreign head of state], or, [with respect to his position, a member of a foreign government who is in Germany in his official capacity], or [a head of a foreign diplomatic mission who is accredited in the Federal territory] shall be liable to imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years.