(July 6, 2020) On June 24, 2020, an amendment to the German Criminal Code entered into force that makes the desecration of European Union (EU) flags and the EU hymn a crime punishable by imprisonment for up to three years or a fine. In particular, it criminalizes desecrating the EU flag or hymn publicly, in a meeting, or by disseminating written materials. Furthermore, removing, destroying, damaging, rendering unusable or defacing, or committing defamatory mischief on the EU flag is also a crime.
In addition, the amendment criminalizes the public desecration of flags and state symbols of foreign states. Flags that resemble the official flag so closely as to be indistinguishable from the official flag are also covered. Before the amendment, the desecration of flags and state symbols of foreign states was punishable only when they were put on public display and not in other circumstances, such as during a protest. Furthermore, the amendment eliminates the requirement that the German government agree to prosecuting the desecration.
The amendment of the Criminal Code combined two different drafts, one submitted by the German states and one by the federal government. The draft of the German states was intended to close a gap in the protection of EU symbols. The explanatory memorandum to the amendment states that protection is necessary due to the “particular importance of the European Union to Germany” and “Germany’s special responsibility towards the European Union” in that Germany has transferred sovereign powers to the EU and is a founding member of the EU. The level of penalty chosen follows the one applicable to the desecration of German state symbols.
The government’s draft to extend protection to symbols of foreign states resulted from an incident in December 2017 in which protesters burned an Israeli flag. The current criminal provision of the code, section 104, has a two-fold purpose: protecting the reputation of the foreign state and protecting the diplomatic relations between Germany and the foreign state in question. The Recommendation and Report of the Committee on Consumer Protection states that burning a flag of a foreign state at a protest such as happened in December 2017 equally affects the principles that section 104 is meant to protect. (Recommendation and Report at 14.)
The German parliament (Bundestag) rejected an amendment proposed by the party “Alternative for Germany” (AfD), a Euroskeptic party. The AfD stated that the proposed criminal norm constitutes an “excessive infringement of freedom of expression and freedom of the arts.” Furthermore, the party contended that there was “no need in society nor a constitutional justification for a criminal norm protecting EU symbols.” In the opinion of the AfD, such a criminal norm constitutes “an unlawful attempt to enshrine a certain political world view in the general awareness by threatening criminal punishment.” The AfD therefore proposed to limit the criminal norm to the desecration of flags of foreign states.