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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" par

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.

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.