Criminal defense for Unconstitutional Symbols in Bonn

Legal Basis

§ 86a StGB

Sentencing Range

Imprisonment of up to three years or a fine (Section 86a StGB)

Summary

Publicly using or distributing symbols of unconstitutional or terrorist organisations

Using Symbols of Unconstitutional Organisations (Section 86a StGB) – Overview

An allegation under Section 86a of the German Criminal Code (StGB) concerns the use of symbols of unconstitutional and terrorist organisations – such as symbols, salutes, slogans or flags of banned associations. Cases often involve individual gestures, tattoos, patches or posts on social networks.

What is punishable?

Section 86a StGB penalises anyone who, within Germany, distributes or publicly uses symbols of unconstitutional or terrorist organisations, or produces or stocks such symbols. This covers symbols, flags, badges, parts of uniforms, slogans and salutes, including confusingly similar symbols. The best-known example is performing the so-called Hitler salute.

Important exceptions

Liability is excluded where the symbol serves civic education, the defence against unconstitutional activities, art or science, research, or reporting on history and current events – the so-called social-adequacy clause. A clearly oppositional, critical use may also be exempt. The distinction is often difficult in the individual case and is a central line of defence.

What penalties apply?

The range extends to three years’ imprisonment or a fine. For first-time offenders and one-off incidents, a fine or a discontinuation is possible. For juveniles and young adults, juvenile criminal law may apply.

Defence

The defence examines whether the sign used is a protected symbol at all, whether one of the exceptions applies, and whether intent existed – young people in particular often lack awareness of the meaning. In online cases, authorship and admissibility must be clarified. Related topic: incitement to hatred.

Frequently asked questions

Is the Hitler salute always punishable? Generally yes when used publicly, but not where a statutory exception (such as art, science, education or clearly oppositional use) applies.

What about historical or educational use? The social-adequacy clause can exclude liability where the use serves education, research, art or reporting.

What sentence does it carry? Up to three years’ imprisonment or a fine; juvenile law may apply to young people.

Should I make a statement? Not without legal advice; have the file inspected first and respond only through your lawyer.

Practical example and particularities

Example: A young man posts a photo in which he raises his right arm in a Hitler salute. Publicly using this symbol is punishable under Section 86a StGB. It may be different where the image clearly serves criticism, satire or education – then the social-adequacy clause applies.

A particularity is the treatment of confusingly similar symbols and modified signs: even slightly altered symbols can be covered where they evoke the prohibited original. Juveniles and young adults in particular often lack awareness of the meaning, which can negate intent and suggests the application of juvenile criminal law.

This information is general in nature and does not replace advice in an individual case.

Summons or accusation of Unconstitutional Symbols? What matters now

Make no statement to the police at first

As an accused person you are never obliged to comment on the allegation. Anything said to the police can be used against you. Provide statements only through your defense attorney and only after reviewing the case file.

File inspection comes first

A sound defense against the allegation of Unconstitutional Symbols requires knowledge of the investigation file. Only once the available evidence is clear can we decide whether a statement is advisable or whether remaining silent is the better strategy.

Possible discontinuation of proceedings

Not every case ends in a trial. Depending on the evidence and any prior record, the proceedings may be discontinued for lack of sufficient suspicion (§ 170 II StPO), for triviality (§ 153 StPO) or subject to conditions (§ 153a StPO). Often a penalty order without a public trial can be achieved.

Victim-offender mediation and restitution

In many cases, victim-offender mediation or making good the damage (§ 46a StGB) can significantly reduce the sentence or enable a discontinuation. Whether this is advisable in your case is something we assess based on the file.

What we do after reviewing the file

We examine the evidence for reliability and admissibility, look for procedural errors, develop the defense strategy, seek a dismissal of the proceedings through discussions with the public prosecutor’s office and represent you, if necessary, at trial before the Bonn Local Court or Bonn Regional Court.

Available 24/7: +49 228 504 463 36

This information does not replace a review of the individual case. In criminal proceedings, the defense strategy depends substantially on the case file, the specific allegation and the evidence.