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There is an image being published in the internets which shows that, allegedly, in German city of Paderborn having the letter Z and the Russian flag in your WhatsApp profile is a violation of section 140 criminal code (rewarding and approving of criminal acts).

Letter from the police

Is there an official registry where one can see all materials that are illegal under this law in Germany, if "published" in a WhatsApp profile picture?

Note: If this image is probably fake, please explain in the comments.

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    This is not fake, it's a typical DA's letter.
    – Trish
    Apr 24 at 17:48

1 Answer 1

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There is no exhaustive list of material banned specifically in WhatsApp profile pictures, but there is an exhaustive list of crimes that § 140 StGB applies to:

Whoever

  1. rewards or
  2. approves of publicly, in a meeting or by disseminating material (section 11 (3)) in a manner which is suitable for causing a disturbance of the public peace

one of the unlawful acts referred to in section 138 (1) nos. 2 to 4 and no. 5 last alternative and in section 126 (1) or an unlawful act under section 176 (3), sections 176a and 176b, under section 177 (4) to (8) or section 178 after it has been committed or culpably attempted incurs a penalty of imprisonment for a term not exceeding three years or a fine.

In turn, sections 138 and 126 enumerate various crimes, whereas the other mentioned sections relate to (child) sexual abuse.

Section 138 (1) no. 5 lists:

murder under specific aggravating circumstances (section 211) or murder (section 212) or genocide (section 6 of the Code of Crimes against International Law) or a crime against humanity (section 7 of the Code of Crimes against International Law) or a war crime (section 8, 9, 10, 11 or 12 of the Code of Crimes against International Law) or a crime of aggression (section 13 of the Code of Crimes against International Law)

The last alternative is indeed a “crime of aggression” which is defined in particular as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”.

In Germany, there is a clear consensus that Russia is waging a war of aggression against Ukraine. The “Z” symbol is used in a Russian context in support of this invasion. It is therefore understandable that a prosecutor has the reasonable suspicion that publicly posting a Russian flag with the Z symbol is public approval of this crime of aggression. Spiegel Online reported of 140 similar cases across Germany.

Thus, the photo could be real. Of course, the accused should not accept this invitation to talk to the police and instead get themselves a criminal defense attorney. A defense strategy would likely argue that the profile picture was not “suitable for causing a disturbance of the public peace” so that the conditions of § 140 StGB were not fulfilled. More realistically, the defendant would not contest a fine.

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    @PDP Since that issue is not relevant for this question, I edited my answer to replace the statement of fact to a description of the consensus in Germany. Of course, if no war of aggression in the legal sense happened, then the accusation of § 140 public approval would be baseless.
    – amon
    Apr 24 at 18:12
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    @PDP Bavaria's ministry of justice has declared that the usage of Z in combination for supporting the russian invasion of ukraine is to be prosecuted - so far no court has given a verdict but there are dozens of cases running - all of them in preliminary stages. Those cases can take years, but it is pretty much that: the usage is illegal, because the executive deems it a breach of §140.
    – Trish
    Apr 24 at 20:30
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    @PDP I'm not saying that there will be a successful conviction. I'm saying that there's a general consensus that RU attacked UA, that the Z symbol is associated with support for the RU invasion when used in a RU context, and that a prosecutor therefore has reasonable suspicion to conduct an investigation. Context matters. The V/O/2/victory/OK symbols aren't used comparably. Ultimately, there doesn't have to be a specific law for every fact constellation, it's just necessary for the prosecutor to argue the case in court. The judges decide whether the elements of the crime were committed.
    – amon
    Apr 24 at 20:54
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    @PDP, language is a social constuct. If the defendant wanted to argue that he or she had been hiding under a rock the last two months, and thus no idea of the changed meaning of 'Z' in the Russian context, and if the judge were to find that credible, the defendant would be acquitted. And someone from Zwickau would have an easier time using the 'Z' today than someone from, well, Paderborn. There is plenty of legal precedent parsing the niceties of 'KPD', 'SS', 'HH', '88', or '18' in different contexts, and the same applies to 'Z' here.
    – o.m.
    Apr 25 at 16:53
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    @Trish: I'd have read the English "I understand they do X" as far more distanced (even expressing hearsay) than how I read German court text, including the quotation of what was said. That does not only express understanding (as in the cognitive process of understanding what is going on), but also approval. The latter is what the court decision hinges on. IMHO "understandable" would be a better translation. Apr 25 at 17:50

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