Xenophobia and racism have many faces and are no new phenomena. Particularly in the course of the convergence between east and west Germany and the associated radical changes in the economy and society, latent xenophobic attitudes have become apparent in large segments of the population, which range from previously unnoticed nationalism up to unconcealed xenophobia.

The state must respond to this situation with the greatest determination – both in repressive and in preventive terms. One focus of the German interior policy is on a determined combat of right-wing extremism. Germany is fully aware of its special responsibility which is rooted in history.

A. Criminal law
Nobody would contest the fact that it is in particular the criminal law which must make its contribution in order to demonstrate the state‘s determination to counteract racism and xenophobia. The criminal law responds to acts of the highest social-ethical nonvalue and it provides for sanctions that are far stricter than those provided for by civil law and administrative law.

To the fields of crime encompassed by right-wing extremism, racism and intolerance a large number of penal provisions can be applicable, depending on the type of crime committed.

Three penal provisions are especially geared to right-wing extremist offenders, due to the elements constituting the offence in question:

- The dissemination of means of propaganda of unconstitutional organisations directed against the liberal and democratic fundamental order of Germany, or against the idea of international understanding, is liable to punishment [Section 86 of the German Penal Code].

- The use of symbols of unconstitutional organisations – including forms of greeting, slogans and songs – of specific banned parties and associations, in particular of former National Socialist organisations, is also liable to punishment [Section 86a of the German Penal Code]. So as to avoid circumventions, this also applies to symbols that are so similar as to be mistaken for those mentioned above.

- Those who publicly or in a meeting approve of, deny or render harmless the Holocaust committed under the rule of National Socialism, or who disseminate writings of a relevant content, are also liable to punishment [Section 130 (3) of the German Penal Code].

However, the majority of penal provisions applicable to right-wing extremist offenders do not specifically relate to the motivation for an offence but to a specific outcome or a specific manner in which the offence is committed; under these prerequisites the provisions apply to all offenders in the same way.

- This applies, for example, to the criminal offence of agitation of the people [Section 130 of the German Penal Code]. According to this Section whoever incites hatred against segments of the population or calls for violent or arbitrary measures against them or assaults the human dignity of others by maliciously defaming segments of the population, shall be punished. Although this criminal offence does not specifically relate to a racist motivation, it is nevertheless one of the most important provisions for the combat of right-wing extremist propaganda.

The objective of this provision is, even before violence is actually used, to fight specific acts that arouse feelings of hatred and hence lead to aggressive misconduct and promote a climate encouraging violence.

In addition, there is a large number of further penal provisions under general criminal law that are applied to racist criminal offenders, such as every form of infliction of bodily harm, murder and manslaughter, arson, public calls to commit offences.

The fact that these criminal offences are not particularly geared to xenophobic offenders does not at all mean that the courts would not be in a position to consider a xenophobic motivation as a factor which might aggravate the relevant punishment in their judgements. Let me illustrate this with the help of two examples:

- In Germany as well as in some other states there are two categories of criminal offences governing the wilful killing of a person: Manslaughter as the milder penal provision and murder with the legal consequence of life imprisonment, the latter including the killing “from base motives“. Hatred against foreigners is such a reprehensible motive as is racial hatred. The Federal Court of Justice, the highest German court for decisions in criminal matters, also held that even if it cannot be fully proven that the motive for the killing of a foreign co-citizen was “hatred against foreigners“, it would nevertheless still be possible that the offence was committed from base motives in terms of murder if the foreigner was killed out of the offenders‘ motive to impress xenophobic groups.

- A racist or xenophobic motivation of the offender can also be considered in an aggravating manner when the punishment is determined. For the German Penal Code stipulates that when a specific punishment is determined, the state of mind reflected in the act must also be considered [Section 46 of the German Penal Code].
But not only the penal provisions but also criminal proceedings are important for an effective criminal prosecution of xenophobic offenders. In the criminal prosecution of politically motivated or racist offences, the principle “speedy law is beneficial law“ is particularly valid. For it is a proven fact that fast judgements also have a preventive effect on potential new offenders.

If the overall situation is simple or if clear-cut evidence is available, the court is in a position to decide the relevant matter under so-called accelerated proceedings. Such proceedings are characterized, for example, by shortened notice periods for summons or a waiver of written accusation. These proceedings cannot, however, be applied to offenders under the age of 18, and only a maximum punishment of one year of imprisonment may be imposed. In the meantime, there has been an extraordinarily large number of accelerated proceedings in which marked punishments have been imposed in a couple of days, greatly impressing both the perpetrator and his or her environment.
However, this must not raise expectations on the part of politics or the public that this would always be possible. Rather, the following principle must be upheld: Where specific features of the offence or of the offender require the imposition of punishments, that would seem too mild at first sight, the judiciary must resist the pressure from politics and the media, if fundamental rights are not to suffer, that is the rights the compliance with which xenophobic offenders are also entitled to.

Especially the punishment as the most immediate and strongest expression of the state’s sovereign power, must particularly respect its purposes and constitutional guarantees. Beyond his or her personal guilt, no criminal offender, and no right-wing extremist offender either, must be degraded to an object. A criminal justice must not make any examples of offenders. However, general prevention, the deterrence of potential perpetrators and the defence of the legal order, is a legitimate purpose of criminal law and an acknowledged ground for the determination of a punishment.
The combat of hatred on the Internet is of special importance. The number of web sites that disseminate racist and nationalist slogans and hatred against minorities is increasing every year. As we all know, neo-fascists, antisemitists, other extremists and criminals are using the Internet as a propaganda platform, but also as an instrument for criminal offences and their preparation.

If such contents are entered on the Internet in Germany, these acts are doubtlessly punishable, for instance as agitation of the people or denial of the Holocaust. What shall we do, however, if such websites are entered on the Internet abroad and are also made available in Germany this way? For a long time, the jurisdiction had been confronted with the problem of whether persons who have entered such contents on the Internet abroad, are also punishable under German criminal law. Last December the Federal Court of Justice ruled: German criminal law is also applicable if the Auschwitz Lie is disseminated from abroad to Germany via the Internet. This is an essential prerequisite for a consistent prosecution of right-wing extremist offences on the Internet.
Alongside the judiciary, also the Internet providers must make their contribution. In particular because of the international character of this medium, they have to prevent the dissemination of right-wing extremist texts in the world wide web through voluntary self-obligations. The Federal Government makes every effort to achieve this aim in many discussions with providers, and has already achieved first successes.

In order to counteract hatred on the Internet effectively, it remains, however, indispensable to agree on common penal provisions or at least to create a minimum pool of penal provisons across borders, provisions that regulate which acts are punishable worldwide, and which violations of the freedom of expression are accepted nowhere but will be prosecuted everywhere.

However, the state must not forget the victims either. We must learn how to care in a more efficient and clearer manner for the victims of crimes, including the victims of discrimination and xenophobic violent offences. Our society is much too fast and much too willing to forget about the consequences of an act, which the victims will often be troubled by during their entire lives.

In addition to compensation claims under civil law that victims are entitled to vis-à-vis the offender, German law also provides for compensation claims under public law. These include helpers who stand by a victim in the event of an attack and who have also fallen victim because of their courage to stand up for others. Such compensation comprises compensation for all damage to one’s health and economic damage resulting from that [Act on the Compensation for Victims], under certain prerequisites also compensation for damage to property and money spent [statutory insurance against accidents].

The Federal Government also considers the financial support for victims as an integral part of its combat of rightist violence. For this reason, the 2001 federal budget has earmarked an additional amount of DM 10 million as immediate assistance for victims of right-wing extremist violence. With these funds, services should be provided for reasons of equity, where rapid assistance is needed on humanitarian grounds.

In this context the initiatives of civil institutions, which also support the aim of the Federal Government – fast and unbureaucratic assistance for victims - are highly welcome. Hence a foundation of the German Association of Lawyers has set itself the task to rapidly provide victims of violent offences with the necessary legal assistance and to cover the costs associated with such assistance.

B. Public Law
Obviously, criminal law alone cannot solve the social problem of right-wing extremism. Rather, it can only react when right-wing extremism has shown its face. Therefore, the other legal instruments, especially the instruments of public law and civil law, must be tapped systematically.

The instruments of public law above all include bans on associations and political parties. It also includes the ban on specific extremist assemblies, which I would like to address at a later stage.

The ban on associations, which are not political parties, is regulated in the German Constitution and in the Act Governing Associations. Under these provisions, associations may be outlawed if their purposes or activities run counter to the criminal law or if they are directed against the constitutional order or against the idea of international understanding.

The minister responsible for banning associations the activities of which are not restricted to one Federal Land is the Federal Minister of the Interior. As for the rest, the Land Ministers of the Interior are responsible.

It goes without saying that associations can launch a court appeal against having
their organisation banned.

Since 1990, 16 right-wing extremist associations have been banned in Germany. The last organisation banned by Federal Minister Otto Schily was the German division of the cross-frontier neo-fascist Skinhead association “Blood & Honour” and its youth organisation “White Youth”. This was in September 2000. “Blood & Honour” focuses on propagandistic activities, mainly organising right-wing extremist Skinhead concerts. The ban reflects the determination of the democratic state which is governed by the rule of law and willing to defend its values and to counteract the moves and structures of right-wing extremist organisations with determination. Germany is the first state to have banned “Blood & Honour”.

Banning a political party, as opposed to banning an association, and thus declaring that it is unconstitutional and therefore prohibited, does not fall within the remit of the executive powers, but is a right exclusively reserved to the Federal Constitutional Court. Furthermore, the prohibition of parties involves even stricter requirements than the prohibition of associations.
As long as they are not banned, political parties and their existence or activities must not be restricted through administrative measures. Therefore, parties of the extreme right (and left) also enjoy, unrestrictedly, the right and the possibility to put up their candidates for election. Under specific requirements applicable to all parties they are also entitled to public funds.

A party can only be outlawed if its objectives or the behaviour of its supporters aim to harm or to overthrow the liberal and democratic fundamental order or to threaten the existence of the Federal Republic of Germany.
As a consequence of outlawing a party, the party is wound up, and it is prohibited to form a substitute organisation for the banned party. After a party has been banned, the activity as a member in such party is punishable [Section 84 of the German Penal Code].
So far, the Federal Republic of Germany has seen only two parties outlawed: in 1952, the “Socalist Imperial Party", as the successor organisation to the NSDAP, was banned, and in 1956 the “Communist Party of Germany”.

The Federal Constitutional Court decides on the basis of a motion which can only be filed by the Bundestag (Parliament), the Bundesrat (“Upper House”) or by the Federal Government. A Land Government can file such a motion only against a party the organisation of which is restricted to its territory.

As a democracy willing to defend its values must not wait until a threat to the constitutional order consolidates, Germany is currently seeking to outlaw the rightwing extremist “NPD”, short for “National Democratic Party of Germany”, which is closely related to National-Socialism. The material collected to this end proves that the NPD is aiming to overthrow the liberal and democratic fundamental order and that it displays an active and aggressive attitude to this end. Consequently, the Federal Government, in November 2000, and shortly afterwards also the Bundestag and Bundesrat, decided to file a motion with the Federal Constitutional Court to determine whether the NPD is unconstitutional.

C. Civil Law
The above-mentioned legal instruments of public law are vital to contain right-wing extremist activities in public. Unspectacular, everyday discrimination, though, can hardly be covered by such measures under public law. This is where civil law needs to come in.
In its coalition agreement, the Federal Government promised to draft a Non- Discrimination Act. This act is to ensure that persons may not be denied access, or given access on less favourable terms, to employment, accommodation, services or facilities on account of the colour of their skin, their race, ethnic origin or descent.
This is a move to enact Council Directive 2000/43/EC of 29 June 2000 implementing the principles of equal treatment. The Federal Government is seeking to enact the directive much earlier than it has to, so as to send an unequivocal signal against discrimination. In the working environment, the applicable legislation already precludes discrimination to a large extent.

After an employment contract has been concluded, it is above all the employers and the staff councils which must make efficient use of their possibilities to prevent discrimination against foreigners in enterprises. The Works Constitution Law [Section 75 ] requires them to monitor whether all persons employed in an enterprise are treated on just and fair terms, and whether anyone is discriminated against on account of their descent, religion, nationality, origin or gender.

If a foreign worker is harassed or even threatened by a colleague due to his or her origin, the labour law entitles the employer to dismiss the latter. The labour courts have handed down decisions according to which a worker who puts up racist posters in a company or who relates degrading, racist or fascist jokes may be dismissed without notice.
We need to combat discrimination in order to successfully integrate foreign citizens into our society. Having said this, integration requires much more than the absence of discrimination. The political aim of integration is to enable foreign citizens to participate in social life on equal terms. Therefore, measures are being taken to give young foreigners equal opportunities and to improve above all their participation in school and training life.

At this juncture, I wish to mention the reform of German nationality law, which took effect on 1 January 2000: As a result, children born in Germany to foreign parents acquire German nationality by birth, if one parent has had his or her lawful and ordinary residence in Germany for eight years and has the (unlimited) right of residence (Aufenthaltsberechtigung) or has had an unlimited residence permit (Aufenthaltserlaubnis) for three years. If the child acquires a foreign nationality along with the German one, he or she must generally opt, within five years of coming of age, for the German nationality or the foreign nationality, as derived from the parents.
However, in exceptional cases laid down by law, they may remain multiple nationals. Adult foreigners are now entitled to become naturalised after living in Germany lawfully and habitually for only eight years.

D. Cross-cutting considerations regarding the efficiency of legislative measures against racism and intolerance
Having said this, the attitude underlying right-wing extremist violence cannot be changed through penal pressure and through the above-mentioned possibilities under public and civil law possibilities alone. What we continue to need is the intellectual and political discussion with right-wing extremists.

Parents and schools, politicians, enterprises, associations, trade unions, the churches and the media must acknowledge their cross-sectoral responsibility and ostracise right-wing extremist attitudes, above all violence. All of them are called upon to do all they can to combat these phenomena which go against the grain of human dignity, and to fight their causes. This encompasses the education and training system, the creation of occupational perspectives; what we need is the courage to stand up for our beliefs and a climate of solidarity and humanity.

We must show racist offenders, but also those in our society whose backing they believe to have, that they are a minority. For this reason, demonstrations of solidarity with victims and against racism are important – although, admittedly, dyed-in thewool fanatics and ideologists will hardly be impressed by these demonstrations. Last year, the Federal Government set up the “Alliance for Democracy and Tolerance – Against Extremism and Violence”, which is currently bringing together more than 600 civil associations.
Finally, each and everyone of us must do their share to combat right-wing extremism: our everyday life offers ample opportunity to do so. We can object to right-wing and populist statements, we can protect school friends and colleagues against xenophobic or racist ways of talking, or help foreigners or people of different beliefs when they are snubbed. Not only can we do that – we have to, as required by the respect for human dignity, the supreme principle of the German Constitution.

The great majority of the civil society in German is not prepared to accept racism and violence. This is reflected not least by the fact that hundreds of thousands of persons spontaneously protested against right-wing extremism in numerous towns and cities.