Holocaust Freedom of Expression Case

The following is the text of the decision of the Court:5

[1] The appellant, born in 1960, is in employment under public law at the federal state as a university professor and is working at the institute for R at the S-university in N (anonymization by the Supreme Administrative Court).

[2] With the decision of the disciplinary commission at the Federal Ministry of Science and Research from 13 February 2013, following oral proceedings, the appellant was found guilty as follows:

1. b.) The appellant is guilty of having made, toward the students MN, SR and SG, statements to the effect of: “The question of genocide during the period of National Socialism is not definitely resolved, as there has not yet been a discussion on that question that was objective and free of ideology. Some historical books contain one opinion, others the opposite. I cannot assess the events during the period of National Socialism, as I have not been present. I do however by no means want to whitewash the events.”

Thereby he has intentionally violated Section 43(2) Civil Service Employment Act (BDG) and thereby committed a breach of official duty within the meaning of Section 91 Civil Service Employment Act (BDG).

1. c.) The appellant is guilty of having made, toward the students MN, SR and SG, statements to the effect of: “There is an abuse of the term of anti-

Semitism: non-religious Jews, who were criticized for their exploitative business activities, defend themselves with the argument of anti-Semitism. This abuse is in part the reason for the mass murder of religious Jews in the past. The actually religious Jews opposed profiteering with compound interest.”

Thereby he has in the context of his other statements subject to these proceedings intentionally violated Section 43(2) Civil Service Employment Act (BDG) and thereby committed a breach of official duty within the meaning of Section 91 Civil Service Employment Act (BDG).

1. d.) The appellant is guilty of having made, toward the students MN, SR and SG, statements to the effect of: “If a genocide committed by the national socialists is discussed, the currently ongoing genocide by the US should be discussed as well. I cannot answer the question whether gas chambers existed during the period of National Socialism. These events are too long ago; I have not been present. I have no opinion on gas chambers. In light of the more pressing, more current problems it is more important to concern oneself with the future rather than the past.” With regard to the shortcomings present in the knowledge society he referred to the example of a technician, who wanted to demonstrate that gas chambers could not have worked for technical reasons. This had caused a stir. “In such situations the matter should be evaluated objectively and not disregarded by reason that a law is violated. It should be possible that such a matter is debated openly and, as the case may be, also refuted.”

Thereby he has intentionally violated Section 43(2) Civil Service Employment Act (BDG) and thereby committed a breach of official duty within the meaning of Section 91 Civil Service Employment Act (BDG).

2.) The appellant is guilty of having made, in a telephone conversation with Mag TM, which should serve to prepare an article in S (a daily newspaper), the statements “It does not make sense to talk about this from today's perspective” and “How do you define objectivity? Everything we have are building remains, photographs and descriptions”—both with reference to the holocaust.

Thereby he has intentionally violated Section 43(2) Civil Service Employment Act (BDG) and thereby committed a breach of official duty within the meaning of Section 91 Civil Service Employment Act (BDG).

3.) The appellant is guilty of having again recited his theses on knowledge by way of reference to mass extermination camps in a letter to the S (a daily newspaper) on 26 January 2012, by explaining: “As an expert for knowledge management and the philosophy of science who teaches and researches in the field and has several international publications to show, I advocate for an originary notion of knowledge. Accordingly, there are two types of knowledge: 1) expert knowledge, which originates from the postulation, verification and refutation of theories by scientists trained therefore, as well as 2) experience knowledge, which originates from personal participation in events and their interpretation against the background of subjective life experience. In this regard, the reading of books and listening to reports and lectures by laypersons does not lead to the development of knowledge but belief. Against the backdrop of this notion of knowledge I have to reject the statement ‘I know that mass extermination camps were operated under the...