8 ms·

Nobody seems to see how Merkel got this thing very right. 1.) Law says: you may prosecute it. So she "allows prosecution", as she also can't ignore diplomatic i

• wobbleblob 11y ago
  How is it up to a politician to "allow" a prosecution? Shouldn't that be up to the court?
  • bloat 11y ago
    "Under an obscure paragraph of Germany’s criminal code, prosecution for insults against organs or representatives of foreign states requires both a notification from the offended party and an authorisation from the government." http://www.theguardian.com/world/2016/apr/15/angela-merkel-agrees-prosecution-comedian-erdogan-poem http://www.theguardian.com/world/2016/apr/15/angela-merkel-a...
    • arrrg 11y ago
      I’ve read that the underlying assumption here is basically that since such insults potentially damage the relationship between Germany and the foreign state, Germany is an injured party and as such involved in the process. But it’s also just an ancient law …
      • patall 11y ago
        and thats why they want to get rid of it
      • elcapitan 11y ago
        There's probably also the case where insulting certain other countries heads of state is just totally fine with the government, so they can ok those cases. ;)
      • wobbleblob 11y ago
        You refer to it as ancient, but I just looked it up, and it seems it was last updated in 2014 How ancient can these laws be? The BRD is not that old.
        • elcapitan 11y ago
          The core of the laws is much older than the BRD, they were not re-invented from scratch after the war, rather re-established, actually. The penal code goes back to 1871 for Germany as a whole and is based on the earlier Prussian penal code of 1851.
        • germanier 11y ago
          The law itself is the main penal code of Germany and it is of course changed quite often. That specific provision has been unchanged since at least 1953 (though there has been a second subsection added). The original version from 1871 already contained it but worded differently.
    • jobu 11y ago
      That article contains a link with a better explanation of the law: http://www.theguardian.com/world/2016/apr/14/obscure-german-law-angela-merkel-recep-tayyip-erdogan http://www.theguardian.com/world/2016/apr/14/obscure-german-... Basically it's a holdover from the monarchy, and there are similar rules across much of europe for the same reason. It seems interesting that these laws hang on despite the massive changes to borders and governments in europe since the 1800's
  • tosseraccount 11y ago
    In the United States, criminal prosecution is up the the District Attorney. This is often an elected position. So, yes, it's sometimes up to a politician to decide whether to prosecute.
  • zymhan 11y ago
    No. Courts do not prosecute people. They decide cases. The government (that is, the elected part) prosecutes people, at least in many cases. The prosecutor is either appointed by an elected official or elected directly. Therefore it is up to an elected official, either directly or indirectly, to decide whether or not to prosecute a case.
    • j_jochem 11y ago
      While this may be true in the US, most prosecutors are neither elected nor appointed by elected officials in Germany.
      • germanier 11y ago
        The prosecutors still are bound by instruction of their superiors (which at the end is the minster of justice, usually of that state). Sure, these instructions have bounds, but it can still lead to interference by political officials.
• kafkaesq 11y ago
  So she "allows prosecution", as she also can't ignore diplomatic implication of doing otherwise. Sure she can. People snub each other in politics all the time (even when they're joined at the hip). It's called "setting boundaries", and letting people know they can only count on so many indulgences from you. In fact, it is precisely through their willingness to take a stand (even at the cost of temporarily upsetting their allies or coalition partners) that stronger politicians distinguish themselves. But even if she didn't want to offend his sensibilities -- there are bigger issues at play, such as the fact that Erdoğan is not only acting like a bully in this case (as he normally does at home), but is expecting the German government to do his dirty work for him. And hence, tacitly, to take "his" side in the Great War of Values on openness, and freedom of expression. That's why Merkel got it wrong. What she needs to do is both act to abolish the law and exercise her discretion in declining to prosecute this case.
  • zymhan 11y ago
    I mean, the main issue is that Germany even had a law allowing someone to be punished for this kind of speech. Merkel can't (or won't) let Erdogan get the chance to point out even the slightest hypocrisy when it comes to enforcing laws. If she gives him an inch by not enforcing this stupid one, he can make a mockery of the west when they say anything about the journalistic and civil rights abuses committed by his administration. Not that they're doing even close to a good job of that right now.
    • fahrradflucht 11y ago
      That law is a relict of the time before WW1 when Germany had an emperor. It just got adapted to the democratic system, so that it covers every head of a state. Everybody just forgot about it and it never got used since decades.
      • hussong 11y ago
        It was used a couple times in recent times: Chomeini, the Pope, and others.
    • 11y ago
• arrrg 11y ago
  Eh … I think waiting until 2018 is a bit … hesitant and cowardly? Federal elections are in 2017, so basically she says that the next government will do it. (Ok, it’s extremely unlikely that this next government won’t include her at the helm … but still.) Also, the case will not necessarily get dismissed. Insults will still be a crime (if one with a lesser punishment), even after the law is abolished. But I’m happy that abolishing this law is at least on the agenda.
• jpfr 11y ago
  Exactly. This was a brilliant choice of action. And Merkel is blatantly telling the Turks how different things are handled in the EU. Without giving Erdogan (she needs him) grounds for feeling disrespected. This is now out of the hands of government and will be settled in court. In an independent court that the government will not mess with. That she emphasized the freedom of speech, freedeom of press and freedom of art several times in her speech is just the cherry on the cake.
  • coldtea 11y ago
    >Exactly. This was a brilliant choice of action. And Merkel is blatantly telling the Turks how different things are handled in the EU. Well, considering how dictatorial, under-the-table-ish and badly the EU handled the Euro-crisis, I'm not sure that's really true beyond this particular case...
• searine 11y ago
  From a technocrat standpoint, Merkel made the smart move. From a "face"/PR standpoint. She lost big. By "giving in" to Turkey's insane demand, it sets a precedent for taking future demands seriously. Germany just gave an authoritarian state a seat at the big kids table. A flat out denial to engage Turkey's unreasonable demand would have highlighted how absurd it was in the public sphere. Instead, we have a bunch of articles highlighting Merkel. Erdogan played her like a fiddle.
  • mpweiher 11y ago
    I think you're wrong, because the government interfering with what is primarily a judicial process is exactly how autocracies work, and exactly how democracies do not work, even if in this case the end result is the one we would prefer. Process matters. A lot. Now where the government (legislative) has every right to have a say is that this law needs to be removed.
    • searine 11y ago
      >Process matters. A lot. Within an established system. Germany and Turkey have no common justice system or even a common foundation for the rule of law. Erogadan is playing outside the scope of any justice system, and so should Germany, because it holds all the power here. After all. The only rules to The Great Game, are that those who follow the rules, lose.
      • icebraining 11y ago
        International politics is a game of its own, where there are no rules, but actions still have consequences. Looking at it purely under the prism of internal law is simplistic.
      • mpweiher 11y ago
        This is happening within the German system of government, even if an outsider is bringing the suit. And that is exactly the point. And what I find so beautiful is that it manages to send both the "rule of law" message and the fk you message at the same time.
• SCAQTony 11y ago
  The good floats with the bad and vice versa. Politics are regional. Living in Los Angeles with a highly diverse population with both legal/illegal immigration and free speech as its the raison d'etre would be unacceptable to Germany and maybe that is a good thing? This is a locale that produced entertainment acts like NWA, Snoop Dog The Doors & Sarah Silverman. (Also some really great looking mixed race actors as well) I don't think Germany could do that due to its Homogeny. A region has a choice: Homogeny which produces affluence and social cohesion or diversity that produces great food, music, art, and technology.
• gokhan 11y ago
  The thing is, this incident will be heavily used in favor of Erdogan here in Turkey. Next time he publicly suggest prosecutor action against some negative comment against him (in 1 or 2 days, mind you) he'll refer to this. And his supporters won't know the difference if Merkel will also change the law, if the case will get dismissed etc. Erdogan won this case domestically. It might be an intelligent move for her but definitely not for us, sadly.
  • Xylakant 11y ago
    How would the alternative look like? Erdogan referring to "even in germany, the head of state interferes". Mind you, there'd still be a court case, just under a different paragraph. The whole situation was not salvageable. I don't like the decision, but I can see the reasons. This way at least everybody can point to the independence of the courts.
• thefastlane 11y ago
  surely Kafka would disagree with you. being subjected to this ordeal is maltreatment, regardless of what legal wizardry will transpire at the eleventh hour.
• macspoofing 11y ago
  Realpolitik at its finest.
• mtgx 11y ago
  Is it a misinterpretation of the article or does the chancellor actually have to "allow" or "disallow" an investigation? Aren't prosecutors completely independent in Germany?
  • germanier 11y ago
    That specific law contains a clause which requires the federal government to give consent before the prosecution could go forward. Think of it that way: The law concerns the foreign relations of Germany which makes the federal government an affected party. But even apart from that the prosecution is part of the ministries of justice and answers to them (usually to the state level). However, it's really, really rare that they actually interfere with prosecution. I think it's similar in many countries. This case is not one of those by the way, as said above.
  • Tomte 11y ago
    Prosecutors aren't independent in Germany. I thnk that's bad, but the idea is actually checks and balances: giving the executive a way to defend against an overreaching judiciary. Usually it's political suicide for politicians to interfere with prosecutors, there have been spectacular examples of that. Unfortunately, we've quite recently had a counterexample where the justice minister got under lots of pressure from a shitstorm-moved public and a violent felon walked free (Gustl Mollath).
    • germanier 11y ago
      I know that this is off-topic, but Gustl Mollath did not walk free because of some interference but because he was explicitly ruled not-guilty and was completely rehabilitated by a court. The case then went up to the highest court which confirmed the ruling. He is not a felon in any meaning of that word.
      • Tomte 11y ago
        You're misinformed, but that's common. To the contrary: the court convicted him, but for procedural reasons he walked free. The lower court's acquittal was appealed (revision) by the defense and the prosecution. Since the prosecution had appealed the sentence could have been more severe (more than "nothing"). The justice minister then ordered the prosecution to withdraw its appeal. That means that the sentence could not be more severe. The higher court subsequently convicted and sentenced to "nothing", because of this procedural rule. As an aside: he is a violent felon. He has been legally bindingly convicted of having thrown his wife out of a car while driving. He has been convicted of domestic violence. As the prosecutor said in his plea: his claim that the well-documented bite marks on her neck were a result of falling out of the car is outlandish.
• vox_mollis 11y ago
  as she also can't ignore diplomatic implication of doing otherwise Are you seriously suggesting that throwing one of your own citizens under the bus for mean words affecting the fragile feelings of a foreign Head of State is proper and correct diplomacy?
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• lawl 11y ago
  I think you wanted to write "FUCK YOU". We're all adults here, right?
• schlowmo 11y ago
  > "says a big "F* Y" by eliminating the law and saving the comedian" I don't think that this is "saving the comedian", since the law should be eliminated as of 2018. It's likely that judgement (at least at the first level of jurisdiction in case of objection/revision against) will be made sooner. Further who knows what proposed legislation come up since then, or like the Germans say: Since then, a lot of water will flow down the Rhine. Currently Germany isn't known for its great process against odd repressive laws, I would say it's even the contrary developement when it comes to state authorities, which leaves me sceptic about that.
• joeclark77 11y ago
  Merkel gets what Merkel wants: free speech is silenced, and she's made an example of this comedian so that other writers, entertainers, journalists, etc, will get the message to keep their ideas about Islamism to themselves. Sure you can say "he'll have his day in court", but it'll take years and millions of dollars (Euros, or whatever). The TV network has already pulled the offending joke off their website. The comedian has had his show cancelled. Anyone else out there thinking about doing something similar has got the message about what happens when you disagree with the government. Yeah, he'll win his freedom in the trial, but "the process is the punishment". No free country tells a comedian that he and his employer are going to be forced to defend themselves in court for... writing a poem.
• dave2000 11y ago
  If I knew how to vote you up I would.
• hasch 11y ago
  > that the government will get rid of this law germany has a separation of powers and merkel can't dictate any laws.
• deleted 11y ago
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• leoh 11y ago
  She really didn't get it right. As others have pointed out, § 103 states: (2) Ist die Tat öffentlich, in einer Versammlung oder durch Verbreiten von Schriften (§ 11 Abs. 3) begangen, so ist § 200 anzuwenden. Den Antrag auf Bekanntgabe der Verurteilung kann auch der Staatsanwalt stellen. ... which points out that the state can decide whether to prosecute or not. And Merkel is deciding to prosecute, which means that this man, even if the courts are on his side, is going to have no choice but to fight an absurd case for weeks if not months. So much for freedom of thought and expression, at least in this case.
• Mithaldu 11y ago
  Incorrect and incomplete representation. She's starting the removal of §103 (deals with dignitaries) and made it very clear it's only being removed because it's "expendable" i.e. only removed to appease a loud minority and polish image. The removal will take like 2 years and i doubt the "investigation" will take that long. §185 stays in and Erdogan can (and actually is) still sue Böhmermann using that one.