To the muted cheers of civil libertarians, West Germany has just liberalized government liability for damages to private citizens -- and repealed two antiterrorists laws restricting freedom of speech.
The cheers are for the greater legal protection of the individual that the Feb. 12 legislation provides. The restraint is the cheers reflects unhappiness with some antiterrorist laws still on the books.
The new liability legislation means that as of 1982, citizens claiming damage will no longer have to prove malfeasance or negligence by an identified official in order to get recompense. It will be sufficient to establish injury from a government agency in general. This shift in the burden of proof is a significant change in a society that traditionally has revered the bureaucrat.
The two repealed laws were passed unanimously in 1976, at the height of the 1970s terrorist wave that saw more than two dozen political murders. The laws forbade the verbal advocacy of violence -- "propaganda in favor of crimes of violence" in the case of Paragraph 88a, written or oral instruction in how to commit serious crimes in the case of Paragraph 130a. They were especially aimed at pamphlets urging such acts as murder, kidnapping, and hijacking.
Critics charged that these laws limited freedom of speech however, especially by their vagueness. (Existing statutes provided and continue to provide penalties for incitement to murder and other specific criminal acts.) the critics asked sarcastically if Nobel Prize novelist Heinrich Boll should now be imprisoned for his popular work "The Lost Honor of Katharina Blum," a tale of police and press hounding of a woman who had associated with a suspect terrorist.
In the wake of the new laws, zealous policeman searched many leftist bookstores and confiscated various tracts glorifying the Baadar-Meinhof gang or simply excoriating the establishment. Some rightist mail campaigns blacklisted Boll novels and other books, urging citizens to remove the listed titles from their own (and their neighbors') shelves. One West Berlin radio commentator publicly accused Boll of being an intellectual accomplice to the terrorist murder of a West German judge. (Boll sued for libel and originally won damages, but the award was later overturned in the Supreme Court on grounds of freedom of speech.)
Yet amid all the furor about what constituted illegal advocacy of violence, only one conviction ever resulted from more than 100 charges that were filed under Paragraph 88a, and only two convictions resulted from 130a.
When it came to repeal in 1981 then, West Germany's ruling coalition of Social Democrats and Free Democrats (Liberals) argued ineffectiveness as well as violation of civil rights in voting in the Bundestag (the lower house and primary legislative authority). The opposition conservatives voted against the repeals (as against liberalization of government liability) and are expected to use their majority in the Bundesrat (upper house) to press for reconsideration of this legislation.
The removal of 88a and 130a (if the Bundestag decision stands) still leaves some antiterrorist laws on the books that offend civil rights advocates. The most controversial among them is the law rammed through parliament in 2 1/2 days in 1977 denying access to lawyers by convicted and suspected terrorists in jail under certain emergency circumstances.
This law was passed during the last of the leftist-anarchist abductions and murders, as the kidnappers of industrialist Hanns-Martin Schleyer were trying to force release of Andreas Baader and other jailed terrorists. The suspicion at the time was that some leftist lawyers were smuggling instructions for further terrorists actions from their jailed clients to terrorists still at large. (One lawyer for terrorists was subsequently sentenced for supporting a criminal organization, and two other lawyers were sentenced for smuggling weapons to jailed terrorists.)
As the wave of terrorism receded and fears cooled, the West German lawyers' association (but not the judges' association) urged repeal of the hastily drawn up "contact ban." But so far the Liberals and Social Democrats have not agreed to change this law.
Some of the Liberals have also talked of repealing the law punishing membership in or support of a (vaguely defined) criminal or terrorist organization, as well as the law against "defaming the state." The latter is a charge rarely used in West Germany because of its association with sentencing dissidents in the Soviet Union.