Why is burning a flag considered illegal?

Debate in the Bundestag: flag burning will soon be banned?


During demonstrations, the flags of certain states are burned again and again - also in the Federal Republic. So far, this has only been punishable under German law in certain cases. But that is about to change.

Anyone who publicly burns the flag of a foreign state will likely face penalties soon. Representatives of the grand coalition announced a corresponding change in the law in the Bundestag on Wednesday. "We do not want to allow these symbolic acts of contempt and hatred to continue," said Justice State Secretary Christian Lange (SPD).

According to Section 90a, Paragraph 1, No. 2 of the Criminal Code, only publicly denigrating the flag of the Federal Republic of Germany or one of its countries is generally punishable - in principle this also includes burning the flag in question. Flags of foreign states, on the other hand, are only protected according to § 104 StGB (violation of flags and emblems of foreign states) if they are shown publicly on the basis of legal provisions or in accordance with recognized custom, the latter for example at sports competitions or conferences.

However, if flags are brought by demonstrators during protests and then burned, this does not fall under the scope of the offense. The background to the planned expansion are incidents such as in 2017, when demonstrators in Berlin destroyed Israeli flags. The protest was directed against the relocation of the US embassy from Tel Aviv to Jerusalem. "Something like this must not happen in Germany," said the Federal Government's anti-Semitism commissioner, Felix Klein. "All the better that this should now apply to the flags of all countries." The Union chairman in the Legal Affairs Committee, Jan-Marco Luczak (CDU), emphasized that anyone who burns flags "crosses a threshold that cannot be crossed in a civilized country".

Opposition is skeptical about plans

The reason for the Bundestag debate was a draft law from the Bundesrat, which actually only wanted to criminalize attacks on the flag and the anthem of the European Union. This project is now to be expanded by making destroying and damaging all foreign flags a criminal offense. "Not only can the reputation of the foreign state be damaged by such processes, the good relations between the Federal Republic of Germany and the flag state can also be impaired," explained Lange.

The SPD parliamentary group also pointed out that the draft also eliminates the passage according to which the government authorizes the judiciary in the event of crimes against foreign states. The German judiciary can judge for itself when criminal proceedings should be initiated. Authorization of the government is unnecessary - this requirement should therefore be deleted. The background is the case of Jan Böhmermann's poem about the Turkish President Recep Tayyip Erdogan. Turkey had requested legal action after the program was broadcast. The government in Berlin cleared the way for criminal proceedings for insulting a foreign head of state.

The left parliamentary group rejects the draft. She thinks that the burning of flags should be countered with regulatory law, not criminal law. The Greens argue similarly. The legal policy spokesman for the FDP parliamentary group, Jürgen Martens, is also skeptical about the plans and warns of an inflationary expansion of criminal law. The AfD parliamentary group is against it for other reasons. Its parliamentary director Bernd Baumann said: "The EU is not a state. Accordingly, the same special rules do not have to apply to its symbols."

dpa / acr / LTO editorial team