Public Prosecutor v. Zind

THE FACTS. - During a discussion in a beer hall in West Germany the respondent Zind expressed approval of the anti-Jewish measures of the Nazis. On the basis of these comments he was charged with the offence of insulting and profaning the memory of the dead. He was convicted by the Court of Offenburg and on 11 April 1958 was sentenced to one year's imprisonment. However, he escaped to Italy. On 2 August 1960 the Ministry of Justice of the Federal Republic of Germany requested Zind's extradition. On 23 August the Public Prosecutor of the Offenburg Court advanced further grounds supporting the request for extradition, namely, that Zind was charged with incitement to aid in the commission of an offence, the illegal use of an identity document, and violation of the laws on passports. Zind was arrested in Italy but objected to extradition on the ground that the offence with which he had been charged in Germany was political in nature, and Article 8 of the Italian Penal Code and Article 4 of the Extradition Treaty between Italy and Germany provide that there shall be no extradition for political offences. The case came before the Naples Court of Appeal, which held that Zind's offence was political in nature, The Public Prosecutor appealed to the Court of Cassation.

Held: that the appeal must be dismissed. An offence was a subjectively political crime when the wrongdoer bad acted to promote aims which were in opposition to the general order of the society in which he lived by means of fomenting ideas or carrying out practical activities whose object was to uphold or impose particular solutions of a political or socio-economic kind. This characterization was independent of the moral aspects of the objects which the wrongdoer hoped to achieve. The offence with which Zind had been charged was political in nature.

The material part of the judgment of the Court was as follows:

"By a request dated 2 August 1960 the Minister of Justice of the Federal Republic of Germany asked for the extradition of Ludwig Zind, who on 11 April 1958 had been sentenced to one year's imprisonment by the Tribunal of Offenburg for the offence of insulting and profaning the memory of the dead. On 23 August 1960 the Public Prosecutor of the Offenburg Court put forward further grounds for requesting Zind's extradition, namely, the offences of incitement to aid in the commission of an offence, the illegal use of a document of identity, and violation of the law on passports. Zind was taken into custody and interrogated on a warrant of arrest, but he objected to his extradition.

"The facts which had given rise to the sentence passed on Zind were stated to be the following. Zind had had a discussion with two students, Welgler and Stephan, on the subject of their academic careers, during which he drew comparisons with his own student days on the subject of the state of affairs in the higher schools of learning. He then went on to speak of National-Socialist politics. When comments were made by one Linser, a German with Jewish blood who then took part in the discussion, Zind dwelt on the struggle against the Jews which the Nazi Government had carried out by means of massacres, and he added that in his view there should be a repetition of that treatment.

"The matter came before the section of the Naples Court of Appeal which deals with preliminary proceedings. That Court gave judgment on 21 February 1961, holding that the offence for which Zind was sentenced by the German Court grew out of a personal conviction of a political nature, so that it could not be said for certain that the accused did not act under the impulse of a political motive. The Court then referred to Article 8 of the Penal Code and Article 4 of the Extradition Treaty between Italy and Germany and, rejecting the Public Prosecutor's case, decided that extradition should not be allowed.

"The State Attorney of the Court of Appeal of Naples now appeals, on the ground that there was a violation of Article 8 of the Penal Code in relation to the aforementioned Extradition Treaty. It is argued in the appeal that praise for the anti-Jewish political measures is by itself enough to take the offence outside the category of political crimes, since the anti-Jewish campaigns during the last war took on cruel forms accompanied by violations of the fundamental rights of human beings; and that, further, there was no link connecting the offence with politics in such a way as to allow the accused to resist the requested extradition.

"This Supreme Court holds that there was no such violation in this case and that therefore the conditions upon which the requested extradition would be allowed are not present here.

"In Italian law the expression 'political offence' includes an ordinary offence committed wholly or in part for political motives. As is well known, the political motivation is a factor to be considered along with the ordinary criminal aspects of the act. The two notions axe parallel, and in examining the political aspects particular importance is given to the motives for committing the offence, whatever may be the legal right or interest offended against. A subjectively political offence is therefore characterized by the nature of the motive, appearing from the offender's purpose in committing the crime, which must go beyond the personal interests of the offender and be concerned wholly or in part with wider interests connected with the carrying into effect of different political ideals or theories. It is precisely in considering this particular characteristic of motive that when a court is assessing the political nature of the crime it should put aside any moral or social judgement and its own opinions as to the nobility and aims of the offender, for they may also be distasteful to those who belong to different political parties or social classes or who support other social principles. That this is the correct approach is shown by the fact that the Legislature has put political offences in a separate category, intending to make clear the distinction between the idea of political offences resulting from ideological differences of opinion, and the moral or social motives (referred to in Article 62 (I) of the Penal Code) which presuppose acceptance of the existence of inherent and higher laws governing the spiritual and moral life of society in general.

"In fact, when a man professes a particular political ideology he cannot always be in harmony - indeed, he is almost always at variance - with the principles of moral order and social doctrine held by the majority of those who live in his society. Such principles exist on a level above that of the various social groups taken together and considered as a whole. Finally, as this Court has had occasion to hold in the past, it is necessary to devote attention to the concrete form of the action and to the material and psychological behaviour of the agent. From this follows the current definition of a political offence, according to which a crime is said to be subjectively political whenever the accused has acted to promote aims which are in opposition to the general order of the society in which he lives by means of fomenting ideas or carrying out activities whose object is to uphold or impose particular solutions of a political or socio-economic kind. This is independent of the moral aspects of the objects which the wrongdoer hoped to achieve.

"The above rules of interpretation have emerged in the jurisprudence of this Court. Turning now to an assessment of the event which led to the German Court's conviction of Zind, it is clear, on the basis of those rules, that it cannot be said that no political motive can be discerned in the facts which constituted the crime of insulting and profaning the memory of the dead. It cannot be said that there was no political motive within the meaning of that term in Article 8 of the Italian Penal Code. The facts show that the first subject touched on in the conversation between Zind and a group of students in a beer hall was the subject of university studies. From comparisons between the present state of institutions for higher studies and the situation in his youth, Zind went on to speak of the politics of the National-Socialist régime, on which he made certain comments. The conversation continued even after the intervention of the Jewish student Linser, touching on more specifically political matters. It was then that Zind came out with opinions and comments supporting the anti-Jewish measures of Nazi times and the methods used for the so-called ‘final solution of the Jewish problem'. Zind's remarks were therefore intended to oppose the contrary Jewish ideology. They included an expression of full support for the policies unfortunately followed in this matter by the National-Socialist régime under Hitler. Thus Zind's remarks were basically motivated not by some personal object but by one which involved, as was said in the German judgment, opinions of a political and ideological nature.

"This being so, when the facts of this case are examined the whole matter is seen to have its own peculiar characteristics and to be of very reduced proportions when compared with cases of participation in or consent to the methods used in the campaigns against the Jews. It is a question of opinions and criticisms which, although open to condemnation on general grounds, nevertheless cannot be dissociated from the political feelings of the person who uttered them.

"The reference to the methods used in the campaigns against the Jews and the insult to the memory of the unfortunate Jews who died were made in the course of a discussion which had already taken a political tone for the simple reason, if for no other, that it attacked the attitude of the German Government in matters of education and culture. Then the reference to the general political ideas of the Nazis happened to lead to the anti-Jewish measures, so that the opinions then expressed cannot be dissociated from the political aspect of the argument. Thus the reference to the persecution of the Jews and praise of that persecution were used to support the view that the ideological and political policies of the Nazis were superior to those at present accepted in Germany. The measures against the Jews were unfortunately a practical, if also reprehensible, aspect of those policies.

"It can now be understood that when the scope of Zind's remarks is outlined as indicated above, they cannot be said to have been detached from a motive which was undoubtedly of political origin within the meaning of political motive given above, and this cannot be without influence on the effects in law of his behaviour.

"These conclusions also follow from a consideration of the title of the offence for which Zind was sentenced. In accordance with their true nature, the facts on which the charge was based came under the heading of insults to the memory of deceased Jews. The offence lay in the words of praise for Nazi policies mentioned above, but there was no question here of any real and thorough argument attempting to vindicate those policies. Only if there had been such an argument, from which it would not be possible to dissociate the idea of instigation and thus of practical effects of the praise of Nazism, would there have been a move away from the sphere of mere criticism to the more active and practical sphere of incitement to criminal activities which might lead to a re-appearance of the methods used in the anti-Jewish campaign, which are today a sad blot on past history. The case would then have taken on very different aspects and, on the broadest grounds of the safeguarding of public order and tranquillity, it would have demanded a different assessment of the nature and intensity of the criminal motive in relation to the consciousness of the nature of the act and its intention.

"In conclusion, there is an undoubted connection, both formal and of substance, between the offence for which Zind was sentenced by the Offenburg Court and the other offences he committed to avoid arrest. This is clear from the common aim of every act done by him. This Court therefore rejects the Public Prosecutor's appeal."