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4. JHR Volume 18

German Court Sentences Australian Holocaust Skeptic [Fredrick Töben]

Dr. Töben Free After Seven Months In Custody

Dr. Fredrick Töben, an Australian scholar and educator, is free after seven months in German prison for having disputed Holocaust extermination allegations. He was taken into custody in Mannheim on April 8, 1999, and detained, without bail, until his trial in November. Töben, 55, is a leading Holocaust revisionist writer and publicist in Australia, where he founded and (until his arrest) directed the Adelaide Institute, an important revisionist research and publishing center.

At the conclusion of the three-day trial on November 10, 1999, a Mannheim district court found Töben guilty on charges of incitement to racial hatred, insulting the memory of the dead, and public denial of genocide, because he had disputed Holocaust extermination claims in writings sent to persons in Germany. Presiding Judge Klaus Kern said that there is no doubt that Töben is guilty of “denying the Holocaust,” and that because there is no sign that he would relent his views and activities, a prison sentence was required. The court then sentenced him to ten months imprisonment.

Taking into consideration the seven months he had already served in custody, Judge Kern ruled that Töben could be released on payment of a bail or fine of 6,000 marks (about $3,500) in lieu of the three months remaining of his prison sentence. German sympathizers quickly raised the money, and he was freed within 24 hours of the verdict.

Important Court Ruling on Internet

In a ruling with potentially far-reaching consequences, the Mannheim court declared that German law has no jurisdiction over Töben’s “on-line” writings or publications. It declined to consider the extensive evidence presented by the prosecution taken from the Adelaide Institute’s Internet web site. Judge Kern said the court could take into account only the material Töben had mailed to or otherwise physically distributed in Germany. Material published on the Internet is not published in Germany. Instead, he went on, its distribution requires the Internet user, acting on his own initiative, to connect with the Adelaide Institute web site, and then to download material from it.

“This is a victory for free speech,” Töben commented upon his release. “We have saved the Internet as a place we can tell the truth and not be punished for it.” The German court’s Internet ruling may be relevant, for example, in the current legal case before the “Human Rights Commission” in Toronto, Canada, which charges Ernst Zündel with distributing “hate” through an Internet web site based in southern California.

Expressing concern that the Mannheim court’s verdict sets a dangerous precedent, prosecutor Hans-Heiko Klein immediately lodged an appeal. “This is the first time,” he said, that “a court in Germany has decided that some things which are said in [sic] Germany on the Internet cannot be subject to German laws. This is a very bad thing. It will undermine our laws which are very important for ensuring that history in Germany is not repeated.”

Töben’s attorney is likewise appealing the court’s sentence.

Töben remains defiant. “I will not be silenced,” he vowed. “I intend to keep using the Internet to promote discussion on these issues. I believe in seeking the truth. Why are they so afraid in Germany of allowing open discussion about the so-called Holocaust? It can only be because they are afraid of the truth.”

Intimidation of Defendants

On the first day of the trial, November 8, Töben announced that he would not defend himself against the charges because by doing so he would likely be charged for additional violations of Germany’s “Holocaust denial” and “incitement” laws. His lawyer, Ludwig Bock, similarly announced that he would offer no defense on behalf of Töben because he risked being charged himself. “If I say anything I will go to jail myself, and if he says anything there will be another trial,” Bock told a reporter.

Prosecutor Klein later confirmed that such fears were entirely justified. “If they [Töben and Bock] had repeated things in this court which are against the law I would have charged them again,” said Klein. Bock did however read a statement to the court that compared the prosecution of Töben and other “Holocaust deniers” to the trials of witches in the Middle Ages, and which called Germany’s anti-revisionist laws a gross violation of the principle of freedom of speech.

In the German legal system no privilege protects the evidence of witnesses in court. If a defendant, or his attorney, says something in court that repeats the “crime” for which he is being tried, he can be charged again. This makes it all but impossible for defendants in such “thought crime” cases to present effective arguments and pertinent evidence.

“The problem we have,” said Geoff Muirden, Adelaide Institute acting director, “is that since it’s against the law to produce hard evidence to prove aspects of the Holocaust are wrong, we can’t mount much of a defense.”

“I wanted the court to go with me to Auschwitz and see the evidence,” said Töben. “In any case where murder is alleged, there has to be a murder weapon. I have been to Auschwitz and I know there is no mass murder weapon there. The so-called [homicidal] gas chambers do not exist.”

Bock, who is well-known in Germany as a defender of Holocaust “thought criminals,” meanwhile is awaiting the outcome of an appeal of his own conviction (and 9,000-mark fine) earlier this year on a charge of inciting racial hatred because, in defending another revisionist skeptic, Günter Deckert, he had criticized German political leaders and judges for suppressing debate on the Holocaust issue.

In similar cases in the past, German courts have simply refused to consider evidence supporting revisionist claims. In effect, truth is no defense. For example, some years ago German courts fined best-selling British historian David Irving 30,000 marks (about $21,000) for publicly saying what is now authoritatively conceded. He was punished for having told a Munich meeting in April 1990 that the structure in Auschwitz that has been portrayed for decades to tourists as an extermination gas chamber is a “dummy” (Attrappe).

Irving was found guilty of thus “disparaging the memory of the dead,” a German criminal code provision that effectively “protects” only Jews. The judge refused to consider any of the evidence presented by Irving’s attorneys, including a plea to permit Dr. Franciszek Piper, senior curator and archives director of the Auschwitz State Museum, to testify in the case.

Also in Switzerland, “thought crime” defendants are intimidated by the authorities. During a July 1998 “Holocaust denial” trial in Switzerland, the public prosecutor threatened to charge a court-qualified engineer with “racial discrimination” for having given sworn testimony as an expert witness that confirmed technical arguments the defendants had made. (See “Swiss Court Punishes Two Revisionists,” July-August 1998 Journal, pp. 2-12)

Töben firmly rejects the premise of German authorities that revisionists are dangerous neo-Nazis:

It’s time we got rid of this conceptual prison in our language which brands anyone who seeks the truth about the Holocaust as neo-Nazi or anti-Semitic. I am neither of these things. There are Jewish people who agree with me that we should establish the truth. The Holocaust is a matter of belief for many people. I respect that. But it is not a matter of fact. I only want to deal in facts.

Töben also rejects the “Holocaust denier” label. “No one denies that this terrible thing happened,” he has said. “We are looking at allegations that Germans systematically killed people, specifically Jews, in homicidal gas chambers.”

Free Speech Groups Protest Detention

In Australia, John Bennett promptly denounced Töben’s detention. The nationally renowned civil rights defender said that Töben had been arrested “under draconian anti-free-speech laws.” Calling this a “classic free speech case,” Bennett urged people to contact German embassies and other appropriate German agencies to protest the arrest. Bennett also helped organize a legal defense fund to secure the historian’s release.

Since 1980 Bennett has been president of the Australian Civil Liberties Union (P.O. Box 1137, Carlton, Vic. 3053, Australia). For decades he has also been a leading revisionist writer and publicist in Australia.

In London, historian David Irving promptly condemned Dr. Töben’s arrest as an “outrage.” The best-selling British author is himself banned from Germany for his dissident views on Second World War history.

Electronic Frontiers Australia (EFA), an independent on-line free speech group, also spoke out against Töben’s arrest, expressing particular concern that German authorities are treating material posted on an Australia-based web site as if it had been published in Germany. EFA chairman Kimberley Heitman, who is also a lawyer, said that the German government is, in effect, trying to legislate for the entire world.

Mark Weber, director of the Institute for Historical Review (IHR), strongly protested Töben’s arrest and detention. The southern California-based revisionist history “think tank” closely monitors restrictions on free speech and free historical inquiry in Germany and other countries.

Töben was arrested in April in the office of Hans-Heiko Klein, Germany’s best-known public prosecutor of “Holocaust deniers.” He was taken into custody during a private meeting with Klein to discuss with him German laws that prohibit disagreement with an official view of Second World War history, especially regarding the wartime treatment of European Jews. “Some people have claimed that I deliberately provoked my arrest in Germany to bring attention to myself. That is absolutely untrue,” said Töben. He was in Europe as part of a European research tour that took him to Poland, Germany, Hungary, the Czech Republic, Ukraine and Germany.

He was held for seven months in “investigative custody,” without bail, on the basis of arrest warrants of April 9 and May 3. Referring to the pertinent sections of the German criminal code, the warrants specifically alleged that Töben, on repeated occasions, had

A. in a manner suited to disturb the public peace,

1. incited a portion of the population to hatred, and,

2. attacked the human dignity of others, by insulting, by malevolently making contemptuous, or by libeling a portion of the population,

B. publicly denied, in a manner designed to disturb the public peace, a [genocidal] act … carried out under National Socialist rule,

C. insulted others, and

D. denigrated the memory of the [Jewish] dead.

Reflecting the special status enjoyed by Jews in Germany today, the April arrest warrant also declared:

The claims of the accused as well as the literature offered and distributed by him are suited to awaken and stir up emotionally hostile attitudes toward Jews in general and, in particular, against Jews who live in the Federal Republic of Germany. They are also suited to shake the confidence in public security of the targeted Jewish portion of the population.

Jewish groups predictably expressed satisfaction with Töben’s conviction. In Australia, the B'nai B'rith Anti-Defamation Commission — similar to the ADL in the United States — responded by calling for stricter legislation in Australia against “racial vilification.”

Disputing Holocaust extermination claims is legal in most countries, including Australia, but it is a crime in Germany, Israel, France, Switzerland, and several other European states. In 1994 Germany’s parliament sharpened the law against “popular incitement” to make it apply more directly to “Holocaust denial.” The new amendment made it a crime for a person “in a manner that could disturb the public peace, publicly or in a meeting” to “approve, deny or whitewash” genocidal actions “carried out under National Socialist rule.” Offenders are liable to fines and up to five years imprisonment. Noteworthy is the fact that the German law applies only to the Third Reich regime and era. It does not criminalize “denial” of genocidal actions carried out by Communist, Zionist, Democratic or other regimes.

Dr. Fredrick Töben (Töben) was born in northern Germany in June 1944, but emigrated to Australia when he was ten. He has lived most of his life in his new homeland, and is an Australian citizen. He studied at Melbourne University in Australia, as well as at universities in Heidelberg, Tübingen and Stuttgart in Germany, where he earned a doctorate in philosophy. He also hold a Master’s degree in education, and has worked as a school teacher in Victoria, Australia.

Centered in South Australia’s largest city, and funded by donations, the Adelaide Institute plays a major role in the worldwide struggle against the historical blackout. It was founded in 1994 by Töben, who (until his arrest) directed its work and edited its important newsletter (P.O. Box 3300, Norwood 5067, Australia. E-mail: freadin@adam. com.au). It also maintains an information-packed Internet web site (http://www.adam.com.au/fredadin/adins.html)

In radio and television appearances, Dr. Töben has been an outspoken voice for historical accuracy and free historical inquiry. Over the weekend of August 7-9, 1998, the Adelaide Institute hosted Australia’s first-ever revisionist conference, a successful meeting that included speakers from the United States and Europe. (See “The Adelaide Institute Conference,” Nov.-Dec. 1998 Journal, pp. 6-10.)

All this enraged the powerful Jewish-Zionist lobby. In 1997 the Executive Council of Australian Jewry (ECAJ), the country’s main Jewish community organization, brought legal action against Töben to shut down the Institute’s web site. In this case, the first test of the country’s Racial Discrimination law involving the Internet, Töben was brought before the Human Rights and Equal Opportunity Commission (HREOC). Outraged by its guiding principle that truth is no defense, Töben walked out of the Commission hearing and refused to cooperate further with it.