Why did this Useful Idiot of a government labor agency choose the rather bland and uninspiring name "C. Paucher" when other options would be readily available? And with a much better ring. Like the sophisticated sounding Art Vandelay of the highly reputed export/import company or the esteemed Dr Martin van Nostrand from the Hoffermandhoffneir Clinic in Belgium. Jurgen probably felt unqualified to use these names for his, well, rapidly diminishing state of head hair.
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| Jurgen Sonneck alias "C. Paucher" on Facebook |
What was the criminal complaint about? Glad you ask. An internet meme. This one here:
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| Meme forbidden in Germany. Contravenes allegedly Criminal Code 86a |
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| Does NOT contravene Criminal Code 86a according to prosecutor Tilmann. |
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| Does NOT contravene Criminal Code 86a according to prosecutor |
Jurgen Sonneck, who at that time was second-in-charge at the Munich Jobcenter, was displeased about this blog post from November 2014. In May 2015, mind you! The complaint was obviously planned well ahead. Jurgen felt so sure nobody would discover him. Balding Jurgen saw hate speech in this post. Of course it was a red herring that the Munich police quickly grabbed.
The text reads: "Would you like to agree with Marissa from Yahoo?
Look, dear Miss Martina Musati, we will clarify such images with Nazi symbols before the Supreme Court. The Jobcenter will never curtail my right to express my opinion!"
After this short intro here the essential parts of my complaint to the ECtHR (a complete complaint form comprises of altogether 13 pages and you have just three pages to describe your complaint which is not a lot considering what went on in court. I can tell you, it was mind-boggling). I hope for acceptance. I know about 50 to 60 ECtHR judgements by now and if I am not completely mistaken, this complaint would be a novelty.
For easier reading text below (slightly edited Google translate).
Page 5/13
E. Presentation of the facts
56.
Criminal conviction for using marks of an unconstitutional organization in a meme:
From 1990 to Oct. 18, 2005 the complainant lived in Nepal among the local community with a multitude of different ethnic groups. After his return to Germany, the complainant became self-employed in the home decor sector after unsuccessful job search. Since the Jobcenter deducts all income over € 30.00 (!) immediately as income, building up a business was impossible. As a top up the complainant therefore received Hartz 4.
After this recent criminal complaint submitted by the former deputy managing director of the Jobcenter Munich Jürgen Sonneck using a false name, the complainant had to fold his business. His disputes with the Jobcenter Munich began in 2012 immediately with the start of his self-employment. Since the end of 2012, the complainant and his daughter have been massively attacked by the Jobcenter Munich and the Labor Agency with three criminal charges that have interfered with his right to free speech because he started this blog to inform about his experiences with the Jobcenter.
At around 8:45 am on October 28, 2015, two plainclothes policemen and a policewoman appeared and demanded admission on presentation of a Judgmental Decree (Annex 3) dated Oct. 8, 2015, which was not signed by the judge. A male police officer immediately rushed to the door to the complainant's daughter's room and threw it open without knocking. The daughter of the complainant, however, was already in school. During the trial, the complainant was physically searched and it was obvious that the female police officer was supposed to body-search his daughter. The apartment was photographed and also the house from the outside. All IT equipment including router was confiscated, because a blogger had to be rendered incapable of any access to the Internet. This was the second computer confiscation after 2013 (then for 25 months without financial compensation!). This as well after a criminal complaint by the Munich labor office. Although the confiscation of the smartphone was not mentioned in the Judgmental Decree, this too was confiscated (Annex 5). The same was undoubtedly planned with his daughter's smartphone.
Inspection of court files in April 2016 revealed that an online criminal complaint had been sent to the police Munich Kriminalfachdezernat 4 on May 7, 2015 against the applicant stating a false name "C. Paucher" (Annex 4, p. 2). Conspicuous, chronological evidence incl. IP-address immediately narrowed the circle of potential perpetrators to someone from the Jobcenter Munich (supplemental Annex 2 'Jürgen Sonneck circumstantial evidence'). The email complaint sees hatespeech in a blog post (Annex 1) published in November 2014 (!) which also shows a meme of the former CEO of Yahoo Marissa Mayer (Annex 2). It is a photoshopped picture of M. Mayer, dressed in a Nazi uniform with swastika and an applied text "Work from Home? Nine!". The picture was shown here: http://www.classicforwards.com/memes/marissa-mayer-work-home-meme/ and can now be seen on Pinterest (Annex 2). It was downloaded in this form by the complainant in 2014.
The Munich courts obviously did not understand the nature of memes. According to Dictionary.com, a meme is "1. an element of a culture or system of behaviour passed from one individual to another by imitation or other non-genetic means. 2. an image, video, piece of text, etc., typically humorous in nature, that is copied and spread rapidly by Internet users, often with slight variations." According to Wikipedia, an" Internet meme, "is commonly known as just a meme, ... an activity, concept, catchphrase, or piece of media that spreads, often as mimicry or for humorous purposes, from person to person via the Internet." Dawkins defined it in his book 'The Selfish Gene' as" the basic unit of cultural transmission, or imitation. 'Vice' states: "You can not make a meme. The meme part is the phenomenon in which it is placed". One of the most famous memes currently is "Is this a pigeon?", although a butterfly is shown. 'Vox' explains it, inter alia: "But "Is it a pigeon? "and its cousins may serve as a counter to the American Chopper meme because they allow the meme creator to frame an issue completely through the static image they're
Page 6/13
57.
presenting. And, crucially, the "misunderstanding" at the center of this meme can be deliberate, accidental, disingenuous, or ironic. That allows us to comment on all manner of social trends and flaws in ourselves and others."
The M. Mayer meme refers to a decision by the Yahoo CEO to end the hitherto existing possibility of working from home. "Nine" stands for a 'No' (German 'Nein') or the nine to five job. The word 'Nine' was also used in reference to the typical German stubborn and strict style. The Nazi uniform is an obvious vehicle for visual exaggeration and has nothing to do with propaganda. Yahoo is an American media company and not known as a proponent of National Socialism. The text of the blog post is about freedom of expression and courts in a democratic state. National Socialism never had anything to do with freedom of expression and women never wore such a Nazi uniform. It is an obvious juxtaposition. To denounce the blog post as hatespeech or as the police report says as part of a "vendetta" (page 3), is abstruse and malicious.
The police did not investigate the IP address, but sniffed extensively on the blog (see police report Annex 4). Policeman Mr Carstens explained during the trial before the LG Munich on Feb. 15, 2017, IP address investigation is too cumbersome. This onesided investigation violates § 160 para. 2 StPO and in particular § 163b StPO measures to establish identity. A letter to Judge Pabst dated April 26, 2016 (Annex 7) to issue a court order to release the name and address of the holder of the IP address 217.253.91.237, citing § 100g Code of Criminal Procedure, remained unanswered. As a result, the complainant was prevented from the opportunity to question the sender of that email pursuant to Art. 6 para. 3 d ECHR. The police report is clearly written in a partisan manner.
The computer of his daughter was returned in a deliberately (!) damaged condition (clear scratches in the lower left quarter of the screen and a broken trackpad) by the Munich Court. Since it was unusable, the complainant sent it to the Federal Ministry f. Work and Social Affairs BMAS in January 2017. The MacBook was confiscated even though the daughter needed it for school. The then attorney of the complainant in a trial before the Munich court on May 6, 2015 which resulted in the ECHR Case 35285/16 warned in the presence of the daughter of the complainant literally that if the blog should be continued, "they will destroy you" (in German "machen die Sie fertig"). He was referring to the Munich Court.
In January 2017, the complainant sent a complaint to the Police President of Munich (Annex 15) about the confiscation of the smartphone WITHOUT a judicial decision. Senior prosecutor Tilmann from the Munich Higher Regional Court referred in her reply of 6/1 2017 (Annex 16) to an opinion with file # 120 Js 119571/17. The complainant has no correspondence with this file number.
On April 21, 2016, the Public Prosecutor's Office in Munich filed an indictment of the complainant for use of marks of National Socialist organizations in two cases and insulting Judge Pabst (Annex 6). On June 22, 2016, AG München sentenced the complainant to a total fine of 290 daily rates of € 10, - equal to € 2,900.00 (Annex 10). The complainant had earlier filed an objection against the judge (Annex 8), which was rejected (Annex 9). Judge Birkhofer-Hoffmann showed again the same aggressive behavior as in a hearing a year earlier and expressed in the final pleading her displeasure about the request for her dismissal from the case for bias. Furthermore, Judge Birkhofer-Hoffmann steadfastly refused to allow the daughter of the complainant to attend the trial as a witness. It was not until he became very loud - his daughter later confirmed that she had clearly heard this outside - that she was admitted. The highlight was the Judge's statement, ECtHR decisions do not apply to Germany, only German law.
The LG Munich Court, represented for the third time by Judge Bassler, overturned the ruling on February 15, 2017 (Annex 13) and decided on a fine of 50 daily rates of € 10.00 for the publication of the Marissa Mayer meme. However, the complainant had expressed his justified concerns for bias of Judge Bassler at the outset of the court hearing. He saw her impartiality as questionable based on past experience as well as relying on the decision of the ECtHR in the case 'FERRANTELLI AND SANTANGELO v. ITALY (Application No 19874/92) and Sentences 58 to 60 of the decision pertaining a "double circumstance". In this particular case a triple circumstance. The meeting was suspended for approximately 40 minutes and continued after the decision of Judge Hansen (Annex 12) was issued. The content of the decision is a lie, because according to a decision of the BGH of February 8, 2017 (1 StR 493/16) there existed, at least temporarily, no allocation of duties plan at the LG Munich I for the jury for the years 2012, 2014 and 2015! It seems strange when a defendant who was reported to police in all three cases by labor agencies
Page 7/13
58.
has the "luck" of getting the same judge assigned in every case stretching over a time period of four years.
None of the witnesses requested by the complainant were summoned (Annex 11)! The complainant had expressly called as witness for interrogation Jürgen Sonneck being a strong suspect. This once again curtailed the applicant's right to equality of arms, an integral part of the Convention. His allegation of unilateral investigations (see § 160 (2) and § 163 STPO), as well as references to cases of the ECtHR such as Rachdad v. France (complaint no. 71846/01) where the duty to seek witnesses was determined was not mentioned in the judgment.
The assertion of the court in the judgment under 'V. Legal appraisal '(Annex 13), "it is also not recognizable in the picture that the defendant distances himself clearly from National Socialism," lacks any rationality and shows that the court has not understood the function and essence of a meme and neither wanted to understand. Furthermore, in the 'Legal Appraisal' the court cites the 'taboo' of NS symbols and refers to Fischer, Commentary on the Criminal Code, on § 86 a. Paragraph 2 a. Judge Bassler deliberately left out important remarks by Thomas Fischer. 2a (Fischer's 63rd edition) states: "On the other hand, if the offense serves to exclude unconstitutional efforts in the run-up to organized propaganda (prohibition of propaganda), then any use, even indifferent or neutral content, should be excluded from the facts. Conversely, the enforcement of a meaningless taboo would not allow content-based exceptions. ("Legitimate purposes" in particular the "dispute", see paragraph III). See also Chapter 2 b Fischer: "Even according to its wording, § 86a follows the taboo concept if one does not interpret the terms" use "and" spread "in an intentional sense. A taboo of signs or words abstracting from the context of utterance and action can hardly be considered legitimate under the conditions of a society, and legitimacy gains from the formal openness of communication."
If the court is really that much concerned about the taboo and the confrontation of a habituation effect, the plethora of Nazi images in established (partly coercively financed) German media remains a mystery to the complainant. On the occasion of the Austrian swastika-shaped cutlet case, the public prosecutor's office in Mainz in May 2016 correctly ruled as follows: "According to the facts presented, there is no initial suspicion of punishable conduct (section 152 (2) of the Code of Criminal Procedure.) The content of this article and its distribution do not comply with any penalty. ... ".
On April 6, 2017, the complainant appealed at the Audit Office (Annex 14). He complained in particular that the AG and LG Munich did not meet the requirements of a court according to Art. 6 ECHR and criticized the unilateral investigation against him, although the police and prosecutors knew the IP address of the email sender. On Sept. 13, 2017, the Munich Attorney General's Office wrote an application to reject the revision (Annex 17). In point II 1 a, it cited a lack of procedural complaints that complied with the requirements of section 344 (2) sentence 2. These, however, had been made in his appeal in 1.1.1. and 1.1.2., also 1.1.5. to 1.1.8. and 2.1.1. to 2.1.10.
On Sept. 23, 2017, the complainant took a stand (Annex 18) and rebuked OSTA Weiß, because the lies that so far had been put forward by judges over the years became a little too much to bear for him. The Munich judiciary obviously deems Hartz 4 recipients as intellectually retarded and to who anything can be served. The complainant is stunned how a studied lawyer such as OStA Weiss is able to write the following circular sentence with regard to the meme: "The stated use and design of the procedural images using symbols of Nazi tyranny rather allows a variety of interpretations, even an interpretation that is just not to be regarded as a distancing" and to expect this to be viewed as a proper argument. As a result, the Higher Regional Court of Munich decided on January 10, 2018 (Annex 19) to reject the appeal against the judgment of the Landgericht München I as unfounded.
On February 1, 2018, the applicant filed a constitutional complaint within the deadline (Annex 20). It was not accepted for decision on June 8, 2018 (Annex 21). Prior on Jan. 26, 2016, the daughter of the complainant had in vain requested an interim order for the release of the confiscated IT equipment to the Federal Constitutional Court (Extra Appendix 1) (File # 2 BvQ 7/17). Her laptop was essential for the school. The Federal Constitutional Court rejected the application on March 4, 2016.
F. Statement of alleged infringement (s) of the Convention and / or Protocols and justification of the complaint
Page 8/13
59.
Asserted article
Art. 10 (1) ECHR (freedom of expression and freedom of the press)
Explanation
The complainant was convicted under § 86a para. 1 no. 1 of the Criminal Code (StGB). The norm of § 86a StGB is directed against the use and distribution of National Socialist marks as well as marks of other political parties and associations, as far as they have been declared unconstitutional or have been banned.
The norm protects the prevailing opinion in Germany as an abstract danger offense both the democratic constitutional state before a revival of unconstitutional organizations and before their "trivialisation" by getting used to certain characteristics as well as the political peace and thus also the reputation of the Federal Republic of Germany Abroad. The enforceability of the intended protection takes place in German jurisdiction by a tabooing of the signs in the form of a comprehensive banishment from the public, so that the subjective relationship of the signs user is basically irrelevant and also a negative or neutral use of the facts of § 86a StGB met. Such a far-reaching interpretation of the standard at the expense of the rights under Article 10 (1) of the ECHR is not "necessary in a democratic society" and contrary to Convention law, as the intended protection of legal interests can also be achieved by criminalizing only a content-related identification with the content of the sign. According to the Convention, a condemnation may only be made if the use according to the specific circumstances can be seen as a confession of the perpetrator to the content-related goals of the organization. The legal interest of political peace is only in danger if the use of the forbidden symbols takes place confessionally. Only in this way can the fact that the scope of protection protects not only the content of the statement but also its form be taken into account. Likewise, only in this way can the interest of the democratic process, for which the fundamental rights of communication have constitutive significance, be sufficiently taken into account (prohibition of propaganda instead of taboo).
The Marissa Mayer Meme referred to the critical economic and business situation of Yahoo. The comedy of the meme lies among others in that IT companies are the real proponents of work from home. The Nazi uniform visually underscores the CEO's ultimate demand for unconditional focus on the company's economic well-being. Any insinuation of another context or even propaganda would be abstruse.
The district court has justified its decision merely by the fact that " ... in the picture it is also not recognizable that the defendant expresses himself clearly against national socialism" and "it also does not result from the context of the use why the image of the CEO of Yahoo in a Nazi uniform is shown". The courts have not understood the nature of memes, as they are not topic-specific, as in this case on the occasion of the decision to end home work at Yahoo, but partly used in wide cross-thematic contexts on the Internet (see meme 'Is this a pigeon'). The Nazi uniform functions in the picture as a double visual exclamation mark for the "Nine!". The court's question about the function of the Nazi uniform in Marissa Mayer equals a request to explain a joke. As Wikipedia explains, a meme acts "as mime or for humorous purposes". In addition, women in the Nazi era did not wear such uniforms.
The court's reference to "exclusion of certain symbols from the permitted forms of communication (taboo) ... to prevent a habituation effect" deliberately omits important passages in Thomas Fischer: "Due to the special requirements of the fundamental right of freedom of expression, however, exceptions are required if the behavior, despite the external use of the signs, does not undermine the purpose of the protection". (see BGH 25, 30, 32 f., 25, 133, 136 f., 51, 244 [= NJW 07, 1602; note Schroeder JZ 07, 851; Hörnle NStZ 07, See below 18.) This statement is compatible with the constitution (BVerfG NJW O6, 3052). "Similarly, the statements of Fischer under 2 b See also decision of the public prosecutor Mainz in the swastika-cutlet case in the ZdF.
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60.
Asserted article
Art. 6 para. 3 d ECHR (violation of the right of confrontation)
and
Art. 8 ECHR (right to respect for private and family life)
Explanation
On April 26, 2016, the applicant sent an application to Judge Pabst at the Munich District Court (Annex 14) to issue a court order to release the name and address of the holder of the IP address 217.253.91.237 citing § 100g of the Code of Criminal Procedure. He listed eight conspicuous clues that clearly pointed to a staff member of the Jobcenter. The refusal to answer the application at all, proves the partiality of the Munich District Court. The unanswered letter was followed by two others unsuccessfully on May 3, 2016 and May 13, 2016.
Although a letter from January 2017 to the LG Munich (Annex 11) mentioned among other witnesses for interrogation explicitly "J. Sonneck (as a strong suspect of sending the email under a false name based on conspicuous circumstantial evidence), Jobcenter Munich, Orleansstraße 50, 81667 Munich" to be summoned, nobody was summoned. A sharp questioning of both J. Sonneck and the then Managing Director Martina Musati could have provided information about this perfidious undertaking. Policeman Carstens replied to the question of why he had not pursued the identity behind the IP address as being too cumbersome. In Germany bloggers are guilty ex ante. The courts did not make the slightest attempt to investigate the striking and chronologically convincing evidence listed by the complainant. The hastily completed transfer of Jurgen Sonneck in July 2017 from the Munich Jobcenter to the Munich Office for Education and Sports after sharp, clear and published communications by the complainant with federal ministries in Berlin and the police chief of Munich is revealing.
Subject Art 8 ECHR
A confiscation of the smartphone was not mentioned in the Judicial Decision of October 8, 2015. Nevertheless, it was confiscated by the police and it can also be assumed, the same was planned with the smartphone of his daughter, as a policewoman was present. Despite this unlawfulness, Judge Birkhofer-Hoffmann showed a keen interest in the results of the evaluation of phone data. For Hartz 4 recipients no rights seem to apply.
In a decision of February 4, 2005 - 2 BvR 308/04, the Federal Constitutional Court stated in paragraph 23 to 25 clear limits for a confiscation. On Nov. 22, 2016, the applicant filed a criminal complaint against police officer Carstens at the Munich Public Prosecutor's Office. Furthermore, he sent two Pdf to the police chief of Munich, which was allegedly handed to the prosecutor by the police according to their letter of April 26, 2017. The complainant has no correspondence with the file # 120 Js 119571/17, as was claimed by senior prosecutor Tilmann in the letter of June 1,2017 and again confirmed on Oct. 19, 2017. Everything was swept under the carpet.
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The resulting damage / loss of use for the IT equipment is € 1,595.00 plus replacement of the daughter's MacBook Pro.
Page 10/13
Indication of the appeals lodged and the date of the last decision
1. Judgment of the local court AG Munich of June 22, 2016, file number 821 Ds 112 Js 168454/15
2. Appeal of the complainant of June 26, 2016
3. Judgment of the Landgericht München I dated February 23, 2017, file number 18 Ns 112 Js 168454/15
4. The appellant's appeal dated April 6, 2017
5. Order of the Higher Regional Court Munich of January 10, 2018, file number 5 OLG 13 Ss 364/17 (2)
6. Constitutional complaint of the complainant dated February 1, 2018, file number 1 BvR 246/18
7. Order of the Federal Constitutional Court of June 8, 2018, file number 1 BvR 246/18
Page 12/13
I. List of enclosed documents
1. Annex 1 Blog Post of November 25, 2014 p. 1
2. Annex 2 Original Memes from the Internet p. 2
3. Annex 3 Confiscation Decision of Munich AG, Ref. ER II GS - 6711/15 of October 8, 2015 p. 3
4. Annex 4 Police Report of June 24, 2015 p. 6
5. Annex 5, search warrant, Az. BY 8644-00804 15/7 of October 28, 2015 p. 11
6. Annex 6 Indictment Munich Public Prosecutor's Office I, Az. 112 Js 168454/15, April 21, 2016 p. 14
7. Annex 7 Letter to AG München dated April 26, 2016 requesting a court order reg. name/address of holder of IP address p. 18
8. Annex 8 Motion for bias of May 21, 2016 against Judge Birkhofer-Hoffmann of AG München p. 20
9. Annex 9 Decision of June. 22, 2016 on motion for bias against Judge Birkhofer-Hoffmann p. 23
10. Annex 10 Resolution of AG München, Ref. 821 Ds 112 Js 168454/15 dated June 22, 2016 p. 25
11. Annex 11 Letter to LG Munich dated January 7, 2017 witnesses to be summoned p. 33
12. Annex 12 February 15, 2017 decision on motion of bias against Judge Bassler of LG Munich p. 35
13. Annex 13 Decision of the LG Munich, Ref. 18 Ns 112 Js 168454/15 of February 15, 2017 p. 38
14. Annex 14 Appeals of April 6, 2017 p. 48
15. Annex 15 Acknowledgment of receipt dated April 26, 2017 by Police HQ Munich reg. confiscation of smartphone and unilateral investigations p. 71
16. Annex 16 Letter from prosecutor Tilmann, Az. GA 313E-23/2017 on criminal charges against police for confiscation of smartphone and unilateral investigations of June 1, 2017 p. 72
17. Annex 17 Letter from Attorney General OLG Munich dated September 13, 2017 to reject the appeal p. 73
18. Annex 18 Respondent's reply to Public Prosecutor's Office of OLG Munich, September 23, 2017 p. 77
19. Annex 19 Decision of OLG Munich, Ref. 5 OLG 13 Ss 364/17 (2) of January 10, 2018 p. 81
20. Annex 20 Constitutional complaint p. 83
21. Annex 21 Decision of the Federal Constitutional Court, Ref. 1 BvR 246/18 of June 8, 2018 P. 110
22. Extra Annex 1 Urgent application with Federal Constitutional Court of Jan. 26, 2016 reg. confiscation of computer of daughter who was in preparation for final school examinations p. 112
23. Extra Annex 2 Jürgen Sonneck circumstantial evidence p. 115
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