German Police Can Seize Your Phone and Arrest You If You Film Them

Via Udo Vetter's excellent lawblog, this police report (g) from Bamberg, Germany:

Early Saturday morning, a person on the Schönleinplatz was halted by police for a check. The 29-year-old student refuse to tell police his personal information and began filming the policeman. He was informed that this was not allowed and constitutes a criminal offense, but the man nevertheless continued. 

As his mobile telephone was being seized, the man resisted officers and was arrested.

He has been charged with resistance against peace officers.

Vetter believes the charges should be dropped, since the police officer's claim that filming him was illegal was incorrect, and citizens are permitted to resist illegal police actions. However, the comments reflect a wide variety of views about whether filming the cop was in fact legal or not, and if not, whether it could be a criminal or civil offense.

The upshot: if you attempt to record police officers in Germany, they may seize your phone and arrest you, and you will only find out your actions were justified after a long and expensive legal proceeding. This is practically the definition of 'chilling effect'.

It's long past time for Germany to pass a law making it absolutely clear that any citizen has the right to film and broadcast any police officer in the performance of his or her duties, no matter what, under any circumstances, as long as the filming does not interfere with performance of the officers' duties.


You Think X is a Human-Rights Violation. You're Wrong.

A quick note to Germans: Stop calling every policy you disagree with a 'human-rights violation'. There's a solid consensus on what human rights are. They only cover the big things, not every aspect of government policy.

The requirement to send your children to school (g), to pick one of 10,567 examples, is not a human-rights violation. In fact, it's precisely the opposite. Nor is deporting illegal immigrants.

When you claim some government action is a human-rights violation, you're wrong 90% of the time. I can and will prove it.

Stop chuntering about human rights this, human rights that. If you disagree with a policy, just tell us why.

I hope this has been helpful!


Böhmermann is Guilty

There's only one way in which I care about the Erdogan thingy -- as a pretty interesting legal puzzle. As for all the self-righteous German bloviation about Freedom of Speech, The Whims of a Despot, etc. -- that's all a bunch of hooey nobody except a tiny journalistic elite cares about.

From a purely legal perspective, there's a good case Böhmi should be found guilty and fined. Just so nobody don't get the wrong idea, let me explain that I find the 'insulting foreign leaders' law silly, and believe Germany should have got rid of it a long time ago. I also have doubts about whether a modern legal order needs the category of 'abusive criticism' (Schmähkritik). I am talking here descriptively about German law as it is, not as I might wish it to be.

And under these laws, Böhmi's guilty. The 'insulting foreign leaders' law will obviously be interpreted in light of artistic and political freedom guaranteed by the German Basic Law. But here's the thing: artistic freedom, satire, etc. have limits. German magazines can be and have been punished for satire that 'goes too far' (I'm lookin' at you with admiration, Titanic). The key distinction is whether there is a 'Sachbezug' -- roughly, some relationship to a recognized political or social issue. It's a weighing test: the severity of the insults against the strength of the relationship to a legitimate subject of debate.

Böhmi's 'poem' fails. It wasn't a puppet-show, or a song, or a sketch, or even a straightforward political commentary. It is nothing more than a collection of racist insults that go far beyond what German law permits in any case. Goat-fucker, kiddie-porn devotee, carrier of gang-bang related sexual diseases, etc. All of these insults are illegal in Germany, even when used sarcastically and even when nobody could be expected to believe there was truth in them. That's how German law works. If Böhmi had said these things about a private persons on national television, it is 100% absolutely ironclad certain he would be convicted. There are literally hundreds of cases on exactly this subject. There was only a brief mention of political issues in the 'poem'. Böhmermann himself, as he read the poem, said that it was illegal. He even entitled it 'Schmähkritik' (abusive criticism). Böhmi consciously, knowingly, by his own admission engaged in conduct that is against the law in Germany. 

And if this argument doesn't convince you, let's do a Gedankenexperiment: Böhmi reads a poem about the Israeli President Reuven Rivlin calling him a 'dirty Jew', 'child-murderer', a 'racist warmonger', and a 'fat, malodorous pig'. That is the level of rhetoric directed at Erdogan. Would German politicos and journos be whining about freedom of expression and kowtowing to foreigners? Of course not. Any judge worth his salt, however, will see that these two cases must be treated equally, if the idea of a principle-driven legal system is to have any meaning at all. The issue isn't which foreign leader was targeted, it's what was said.

So he should be found guilty, and I think he will. This is not a case about freedom of expression. This is a case about whether a person who publicly announces he is going to break the law and then does so should be punished. The answer is, and should be 'yes'. The best analogy here is to Joseph Gibbons:

Artist and former MIT professor Joseph Gibbons learned this week that robbing banks, even in the name of art, will still land you in jail. He pleaded guilty to burglary in the third degree this week in a Manhattan court.

Gibbons was arrested in January for a heist staged on December 31 at a Capital One bank in New York's Chinatown. According to court documents, he made his demands for cash in the form of a polite note asking the teller for a donation for his church, and then took $1,000 (see Artist and Former MIT Professor Robs Banks Claiming It's His Art).

In November, Gibbons held up a bank in Rhode Island using the same method, and made off with $3,000.

Both times, Gibbons videotaped the theft. “He was doing research for a film," his cell-mate, Kaylan Sherrard, told the New York Post. “It's not a crime; it's artwork…He's an intellectual."

Gibbons went to jail because freedom of expression does not cover illegal activity. That's just as true in Germany as it is in the U.S. Whether you agree with Germany's restrictive freedom-of-expression laws or not, Böhmi broke them.

 


German Voting Law Explained

It's election time in Germany! I'm not a citizen, so I can't vote. But for those of you who can, I've prepared a short explanation of German voting law. It has the reputation for being complex, but as I plan to show you, that's undeserved. There are just 5 basic rules.

  1. If the direct-mandate candidate you vote for wins a majority of the votes, he or she wins. The second-choice vote you cast is ignored.
  2. If the party you voted for with your first vote only earns a plurality, then there will be a run-off between the direct-mandate candidate of the second-list party and the incumbent. If another party gets more than a percentage determined by the Glöcksteiner-Levchinavülius tensor function, that party can also nominate a candidate for the run-off.
  3. If the party whose direct-mandate candidate doesn't win nevertheless wins a majority of the first-round popular vote, then extra seats will be created in the legislature. The number of extra seats is determined by the Sloterdijk-Schweinsteiger transform, where z is the log of the discrepancy between the direct-mandate candidate's loss margin and the square of his or her party's winning margin:  Eq0078L
  4. If the direct-mandate winner loses the run-off election but wins over 30% of the vote, the result will be determined by the procedure known as Überhangsmandat. Since this process requires reserving time at the JUGENE supercomputer at the Forschungszentrum Jülich in North Rhine-Westphalia, results will not be final until late 2018.

That about covers it. Enjoy voting!


That '70s Feeling: Jörg Immendorff's Revolutionary Struggle

MAO -- Materialien zur Analyse von Opposition (Materials for Analysis of the Opposition) is an online archive (g) of documents from the heyday of German Maoism. It collects flyers, magazines, manifestos, artwork, banners and other ephemera from the early- to mid-1970s, when some factions on the German left became enthusiastic adherents of Chairman Mao thought. The website is a bit hard to navigate, but you can tell it's a labor of love and probably dates from the 1990s, so gratitude is in order.

I stumbled on an interesting document, a review of a book by Jörg Immendorff. First, a bit of background. Immendorff was a Düsseldorf-based artist famous enough to have an English Wikipedia entry. He was a fixture of the Düsseldorf culture scene and a teacher at the Kunstakademie until his death from ALS in 2008. More on him later.

The book the Maoists review is entitled (my trans.): 'Here and Now: Do What Must Be Done. Jörg Immendorf. Materials for a Discussion: Art in Political Struggle. Whose Side Are You On, Culture-Creator?' Despite this engaging title, the book doesn't seem to have sold many copies and is now rare. This is the cover (from this antiquarian website (g) where you can buy the book for €120):  

12641_0

I'm sure this painting is by Immendorff himself. It isn't Hockney/Currin-esque ironically self-aware textureless or 'bad' painting. It's just clumsy. This is what most Immendorffs look like. If you're getting the idea that I don't dig him, you're right-on, man. I've always found his stuff unconvincing: either crowded and ugly, or flat and cliched.

But what about his political views? Like so many German lefty/culture types, Immendorff jumped onto the bandwagon of Maoism in the early 1970s. This book is obviously from that period.

A review of the book and the associated exhibition can be found in this 1973 agitprop flyer (g) from the Revolutionary Artists' Group, found on the archive website. Let me apologize in advance for the layout of this page from a self-proclaimed 'Artists' group'. Clearly, these Revolutionary Artists are mostly untrained, given what's on display in most of the pamphlet. Yet no matter how limited your means are, there's no excuse for pages clogged with unreadable clots of text like the one below. Apparently columns are tools of the bourgeoisie.

But let's forge ahead anyway. The handwritten title reads: "Progress at the anti-imperialist Culture Front!" and begins: "A book has just appeared from Comrade Jörg Immendorff, who is active in the Group of Revolutionary Artists -- Ruhr Struggle." 

  Duesseldorf_GRK_Ruhrkampf_1973_123_21

The review, misspelling Immendorff's name, reports breathlessly that he has decided 'to consciously place his artistic activity in the service of the people and the revolutionary proletariat'.

The article then reports on the exhibition accompanying the book, which was held in the Westphalian Artist's League in Münster. Both the exhibition and the book, the review states, 'show the attitude of a partisan artist who has developed away from bourgeois philistinism towards cultural creation marked by class struggle. Both (the exhibition and the book) are a declaration of war on the brainless bourgeois avant-garde...which have learned nothing from the anti-imperialist movement of 1968.'

During the entire exhibition, young members of the 'anti-imperialist league' staffed a book-table with 'revolutionary writings' inside the museum.

The exhibition also featured a roundtable discussion with members of the Communist Students' Association, the Anti-Imperialist League, the Group of Revolutionary Artists, and Immendorff. Immendorff admitted his works were not yet fully 'revolutionary', given their incompleteness and flaws, and thus that he sought 'discussion and critique' from the audience.

One critique focused on Immendorff's portraits of 'Marx, Engels, Lenin, Stalin, and Mao Tse-Tung', which were based on the works of Chinese 'people's artists'. One cannot simply import the stylistic devices of the Chinese revolutionary artists' Social Realism into German conditions, because the international class struggle is always defined by the particular historical, social, etc. etc. -- you get the picture. 

Immendorff's later history is well-known to all Germans. He continued producing masterpieces of socialist-realist artwork in the service of the international proletariat, donating every penny of profit to Third World liberation movements. He lived in a humble apartment in the working-class section of Düsseldorf, volunteering much of his time teaching painting to Turkish immigrant children. Even those who disagreed with his political views couldn't help admiring the depth of his commitment to social justice.

Oh wait, wrong Immendorff. While no doubt continuing to mouth the occasional revolutionary slogan, he went on to amass a fortune of between 15 and 18 million Euros (g) at the time of his death. He described his own philosophy of life as 'selfishness'. Late in life, he married a Romanian ingenue 30 years his junior (former student) and rechristened her Oda (after a Germanic god), last name Jaune. The French word for yellow, Immendorff's favorite color. Not hers.

But that didn't stop Immendorff from regularly renting luxury hotel rooms, to which he would invite groups of up to 15 prostitutes. There, he held hours-long cocaine orgies with them costing sums in the five-figure range. He was caught white-handed during one of these, so to speak, and eventually sentenced to 11 months' probation. At the time of this coke and champagne orgy, his wife Oda was in an advanced state of pregnancy. As a result of the prosecution, Immendorff nearly lost his comfortable civil-servant position as a teacher at the Düsseldorf art academy -- run by the state he no doubt routinely claimed to despise.

Just before he died, he changed his will to try to bestow upon the long-suffering Oda his entire fortune. This came as rather a disappointment to Immendorff's illegitimate son Jean-Louis, born in 1999. Immendorf ignored the letters and pictures his son sent him during his life, and took no interest in him. Fortunately, German law guaranteed the son an 1/8 of Immendorff's inheritance, no matter what Immendorff tried to arrange.

And that, ladies and gentlemen, is yet another object lesson in why nobody should pay the slightest attention to the political opinions artists claim to have.

Especially, it must be said, German ones.


A Few Sketchy Numbers About Migrant Crime in Germany

As I've pointed out many  times before, German police agencies do a terrible job of reporting crime statistics. In fact, they frequently do a non-existent job of reporting them, since many police reports about specific kinds of crime are kept secret. Only leaks allow the public to get a full picture of the level of crime in their society, something that should be a scandal.

German authorities are now actively hunting (g) for the cop who release the 'unfiltered' police reports about the mass sexual assaults in Cologne over New Year's Eve. I like to call this man or woman the German Edward Snowden. Perhaps Great Britain will offer asylum?

Even when police reports are leaked, the information they contain is often partial and poorly-sorted, making it near-impossible to derive reliable crime-rate statistics or to assess the genuine impact of various kinds of crime (crime by migrants, organized crime, etc.). Nevertheless, Soeren Kern at the neo-conservative weblog Gatestone Institute gives it a try. The upshot is there seems to be rather a lot of it, at least if you look at raw numbers:

Migrants committed 208,344 crimes in 2015, according to a confidential police report that was leaked to the German newspaper, Bild. This figure represents an 80% increase over 2014 and works out to around 570 crimes committed by migrants every day, or 23 crimes each hour, between January and December 2015.

The actual number of migrant crimes is far higher, however, because the report, produced by the Federal Criminal Police Office (Bundeskriminalamt, BKA), includes only crimes that have been solved (aufgeklärten Straftaten). According to Statista, the German statistics agency, on average only around half of all crimes committed in Germany in any given year are solved (Aufklärungsquote). This implies that the actual number of crimes committed by migrants in 2015 may exceed 400,000.

Moreover, the report -- "Crime in the Context of Immigration" (Kriminalität im Kontext von Zuwanderung) -- includes data from only 13 of Germany's 16 federal states.

The report does not include crime data from North Rhine-Westphalia, the most populous state in Germany and also the state with the largest number of migrants. North Rhine-Westphalia's biggest city is Cologne, where, on New Year's Eve, hundreds of German women were sexually assaulted by migrants. It is not yet clear why those crimes were not included in the report.

The report also lacks crime data from Hamburg, the second-largest city in Germany, and Bremen, the second most populous city in Northern Germany.

Further, many crimes are simply not reported or are deliberately overlooked: political leaders across Germany have ordered police to turn a blind eye to crimes perpetrated by migrants, apparently to avoid fueling anti-immigration sentiments.

According to the report, most of the crimes were committed by migrants from: Syria (24%), Albania (17%), Kosovo (14%), Serbia (11%), Afghanistan (11%), Iraq (9%), Eritrea (4%), Macedonia (4%), Pakistan (4%) and Nigeria (2%).

Most of the migrant crimes involved theft (Diebstahl): 85,035 incidents in 2015, nearly twice as many as in 2014 (44,793). Those were followed by property and forgery crimes (Vermögens- und Fälschungsdelikte): 52,167 incidents in 2015.

In addition, in 2015, migrants were involved in 36,010 reported cases of assault, battery and robbery (Rohheitsdelikte: Körperverletzung, Raub, räuberische Erpressung), roughly twice as many as in 2014 (18,678). There were also, in 2015, 28,712 reported incidents of fare evasion on public transportation (Beförderungserschleichung).

There were 1,688 reported sexual assaults against women and children, including 458 rapes or acts of sexual coercion (Vergewaltigungen oder sexuelle Nötigungshandlungen).

According to the report, migrants were accused of 240 attempted murders (Totschlagsversuch), in 2015, compared to 127 in 2014. In two-thirds of the cases, the perpetrators and victims were of the same nationality. There were 28 actual murders: migrants killed 27 other migrants, as well as one German.

Finally, the report said that 266 individuals were suspected of being jihadists posing as migrants; 80 of these were determined not to be jihadists; 186 cases are still being investigated. The infiltration of jihadists into the country, according to the report, is "a growing trend."

The report leaves far more questions than answers. It remains unclear, for example, how German police define the term "migrant" (Zuwanderer) when compiling crime statistics. Does this term refer only to those migrants who arrived in Germany in 2015, or to anyone with a migrant background?

If the report refers only to recently arrived migrants -- Germany received just over one million migrants from Africa, Asia and the Middle East in 2015 -- this would imply that at least 20% of the migrants who arrived in Germany in 2015 are criminals. But if the number of crimes committed by migrants is actually twice as high as the report states, then at least 40% of newly arrived migrants are criminals. Yet the report asserts: "The vast majority of asylum seekers are not involved in criminal activity."


200 Break-Ins and Still Going

A few weeks ago I posted a scholarly paper from 2011 noting that overall in Europe, crime rates have been increasing over the past few decades, while they've been decreasing in the USA. The authors of the paper put forward some tentative explanations for why this might be, and one of them was that (1) sending people to prison does deter crime, and (2) Europe doesn't imprison enough people. I like the contrarian aspect here: the United States earns a lot of criticism from Europeans for being too harsh on criminals (much of it justified) , but what if Europe is being too lenient?

Which brings us to a recent news story (g) from Hofheim, a burg in the German state of Hessen. A 30-year-old man heard suspicious noises in the basement of his apartment building, went down to investigate, and found a burglar rummaging around there. The burglar had a screwdriver with him. The man punched the burglar a few times and held him until police arrived. The man is going to be charged with assault, but may be able to plead self-defense.

The police note that you are allowed to detain someone in this situation, but not assault them. Of course, they advise residents who find a burglar to dial the police emergency number 110, not to confront them. But 85% of residential burglaries in Germany go unsolved, and burglaries are increasing. And even if the police find the criminal, that hardly guarantees you'll get your property back. So if the guy leaves before the police arrive, you can probably give up hope of finding anything he stole. Under these circumstances, how can you blame someone for wanting to stop the burglar right away? 

Which brings us to the perpetrator in the Hofheim case, a 17-year-old who, according to police, has already compiled a record of over 200 property crimes, including break-ins, bike thefts, and the like. That's not a typo, 200. Like all mainstream German press reports about crime, this one is almost tauntingly vague about details. In particular, we learn nothing more about the burglar or why, in particular, he is still free after committing 200 crimes.

But shouldn't that be the first question anyone asks? Presumably each individual crime was not considered serious enough to warrant a custodial sentence, particularly for a 17-year-old. And apparently German law lacks the facility to take into account a history and pattern of crime when sentencing an offender for each fresh offense. That's my guess, but if you've got more information, I'd be happy to have it.

This is why I don't get as excited about the Bild tabloid as many people I know. I can easily imagine a headline with the blurred-out picture of the young man: '200 Thefts -- And the Court's Can't or Won't Stop Him!' The breathless headline would immediately be condemned by Bild critics as pandering to Joe Sixpack's ignorant lust for revenge. And if the thief is named Ali S. or Mehmet G., xenophobia as well.

But if it is the case that the justice system is not taking property crimes seriously -- and a 15% clearance rate and 17-year-old roaming about with a record of 200 thefts seems to show it isn't -- this is an important policy issue. There should be a debate about this, and police and judges should be confronted and forced to respond about why they are apparently unable to protect citizens' property. If the 'respectable' press won't do this, then only Bild will bother.


Violent Crime is More Common in Europe than the USA

An interesting 2011 paper looks at crime rates since 1970 in the United States and 8 major European countries. The authors, mostly Italian, come to a conclusion that will surprise many people: Europe has become more dangerous than the United States: 

In 1970 the aggregate crime rate in the seven European countries we consider was 63% of the corresponding US figure, but by 2007 it was 85% higher than in the United States. This striking reversal results from a steady increase in the total crime rate in Europe during the last 40 years, and the decline in the US rate after 1990. The reversal of misfortunes is also observed for property and violent crimes.

A few charts:

Crime Rates in the USA and Europe Violent crimes usa europe
An important caveat is that these numbers exclude homicide. The US homicide rate is currently 3-4 times higher than in most European countries. As I've pointed out, this fact is due mostly to two factors: the extremely high rate of black-on-black homicide in the US (52% of all persons arrested in the USA for homicide are black), and of course the wide prevalence of guns in the USA.

Homicide is actually not terribly relevant to public safety. It's much more rare than all other violent crimes, and is overwhelmingly concentrated among certain subgroups. Most homicides occur within an existing relationship, and many others occur among criminal subgroups such as gangs or drug users. The chance of an ordinary European or American being murdered by a stranger in a crime of opportunity is infinitesimally small.

As for general background violence in society, Europe is, statistically, more dangerous. It's interesting to speculate about why this might be. I suspect mass hooligan confrontations between football fans probably plays some rule: Every weekend there are dozens of unruly confrontations between rival football fans which may generate dozens of arrests at once. But still, these have been going on for quite a while.

The authors of the study perform statistical analyses to try to determine why European crime has increased. They do not identify immigration as a significant factor, although they say this is mainly for lack of data. The one factor they do identify as significant is length of incarceration. They argue that Europe's comparatively lenient criminal-sentencing regimes help to explain the crime increase. They find that length of criminal sentence does have an effect on crime rates, and suggest that Europe should increase prison sentences.

At the end of the day, the universal rule for all developed societies holds: crime is concentrated among poor and minority areas, and if you avoid these, your chances of being the victim of a violent crime are minimal. But still, anyone who praises Europe as safer than the USA needs to update their stereotypes.


How To Exclude Violent Migrants

A few commenters have wondered how Germany could go about excluding migrants who commit crimes.

I'm no expert on German or international law, but here's the 1951 UN Refugee Convention, Article 2: "Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order."

Beatings, assaults, and threats of murder are against the "laws and regulations" of Germany. Any country has the right to exclude foreign nationals who commit serious crimes on its territory.

I would say that Germany could pass a law tomorrow saying that any asylum seeker found liable of serious crimes on German territory has forfeited their right to asylum in Germany and may be excluded. Article 16(a)(4) states

In the cases specified by paragraph (3) of this Article and in other cases that are plainly unfounded or considered to be plainly unfounded, the implementation of measures to terminate an applicant’s stay may be suspended by a court only if serious doubts exist as to their legality; the scope of review may be limited, and tardy objections may be disregarded. Details shall be determined by a law.

The law would specify that persons who are found to have committed violent crimes in migrant shelters can be deemed to have "unfounded" cases for asylum, since they have violated the 1951 Convention and demonstrated a tendency to violence. It's a semantic stretch, since there's no necessarily link between their behavior in a German migrant shelter and the reasons for their alleged persecution back home. But any legal system is full of such imperfect logical fits; there are dozens in German law already. And in any case, the law's purpose would be very popular and would make sense, which is something you shouldn't discount.

The key thing would be to make sure the migrant got a hearing that satisfies minimum standards of fairness. Since migrants aren't German citizens, have no legal residency status, and are not being threatened with prison, I don't think you would have to give them anything near a full-blown trial on the merits. You would give them a brief hearing, an appointed lawyer, and a chance to speak. The standard of proof could be something like clear and convincing evidence, not evidence beyond a reasonable doubt.

The result of the hearing would be a finding that the migrant has engaged in acts contrary to the 1951 Convention, forfeited his right to seek asylum in Germany, and therefore should be immediately deported.

Of course, then you have to actually deport them, which brings a whole host of complications of its own. Some countries won't be all that eager to take back violent religious fanatics.

This, my friends, Is. Why. You. Screen. Refugees. Before. Letting. Them. Into. Your. Country.