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Source: US Global Legal Monitor

(Oct. 13, 2020) On September 14, 2020, Minister of the Interior Ulrich Mäurer of the city-state of Bremen, Germany issued a decree banning the public flying or use of the German imperial war flag. Flying such a flag on private property where it is clearly intended to be and is visible to everyone is also covered by the prohibition. Imperial war flags within the meaning of the decree are the war flag of the North German Confederation from 1867 to 1921 (annex 1), the war flag of the German Empire from 1922 to 1933 (annex 2), the war flag of the German Empire from 1933 to 1935 (annex 3), and the flag of the Empire from 1892 and of the “Third Reich” from 1933 to 1935 (annex 4).

The decree states that the public use constitutes a danger to public security and order within the meaning of the Police Act of Bremen as the flags have become associated with National Socialism and xenophobia. The police are authorized to confiscate such flags.

The German Criminal Code only prohibits the use of symbols of unconstitutional organizations, such as those of former National Socialist organizations. (Criminal Code, § 86a.) The law contains a nonexhaustive list of symbols — in particular flags, insignia, uniforms and their parts, slogans, and forms of greeting. “Use” is broadly defined as “any use that makes the symbol visually or acoustically perceptible.” The intention of the user is irrelevant if none of the exceptions codified in the law, such as civic education, applies. Under this provision, only the flag of Nazi Germany with a swastika from 1933 to 1945 is prohibited.

In a press release, the Bremen Ministry of the Interior stated that “sovereign citizens, right-wing conspiracy theorists, but also occasionally so-called Corona protesters, carry German imperial war flags at protests or fly them at home from their windows. In late August, they garnered the attention of an outraged public when they were carried by protesters who tried storming the Reichstag building [of the German parliament].” The attempted storming of the Reichstag building was described by the German Federal President Frank-Walter Steinmeier as “an unacceptable attack on the heart of our democracy.”

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