Normal courts can’t do that. They could refer the issue to the Federal Constitutional Court, our Supreme Court for purposes of legal review and constitutional disputes (though not a court of appeals.) However it is not unlikely that they would leave that to him.
Yes, absolutely. Officially the prosecutors have no say in the matter. Of course in many cases they have considerable practical discretion because they get to assess the evidence and estimate the chances of a conviction or they might declare the allegations so minor that wasting time on that would not be in the public interest. But even that can be challenged in court. Letting prosecutors choose would only exacerbate the problem discussed above because it would allow them to throw the book at undesirables while keeping “good people” safe from bad laws.
I don’t know why everyone seems so sure that the law is unconstitutional. I’d say that is far from clear cut and I would focus my effort on an aquittal.
The people stepping over the glass aren’t the people with the legal power to clean it up. In this case, Merkel is involved so she presumably could be leading an effort to reform the law, but most of the time with these laws the fact that police and prosecutors don’t enforce doesn’t really register with lawmakers.
Yeah, I think we often see biased and racist outcomes in the way laws are selectively enforced, but that happens with “good” laws and well as “bad” ones. Rich kids get let off with a warning for their “prank” while poor kids doing the exact same thing would be charged with vandalism/theft/whatever.
I really don’t like bad laws sitting on the books, but if it were an easy problem to fix it wouldn’t be a problem. There are regular efforts at many levels of government to clean up old laws, but even with omnibus bills going on for hundreds of pages we still have laws referring to laws that don’t exist anymore and other egregious errors.
I’ve always said that if you make laws that can conceivably be used by the strong to bully the weak, then they will be. Not 50% of the time, or 76% of the time, but 100% of the time. Alwaysalwaysalways. Always count on power to use the mechanisms of law you created in ways that you did not intend. Never cede power to universal grievances like “insult.” You’re asking for the disaster that ensues.
Currently the American left is so very carefully setting themselves up to be hoist by their own petard in precisely this fashion. Pay attention, folks, because this is you in twenty years.
I don’t think it was clever. it is already planned to get rid of the law - a perfectly fine reason to throw out this case. the emberassment on Erdogan’s part is already on the way, as he also mandated a lawyer to start a private law suit (also based on the insulting song and using the normal laws, not the special head-of-state thingies).
I certainly didn’t mean to imply otherwise, I apologize if that was not clear. The contrast I was trying to draw was between the German situation(where ‘the rules’ are apparently actually fairly strict; and short of an ECHR ruling or similar, disciplined mostly by the good taste and discretion of people in German political life); and the American situation(where we have to be bailed out of some mind-boggling attempt at atrocious assholery on a fairly regular basis; but what we lack in political decorum is, in part, ameliorated by the First Amendment and smackdowns issued on its behalf).
In terms of ‘so, how dysfunctional is the political system?’ having a near-constant stream of trivially unconstitutional bullshit being advanced is hardly a flattering sign; but it does have the advantage of ensuring that nobody expects ‘good faith’ or ‘reasonable discretion’ or anything like that to be a bulwark against abuse. This provides a high degree of resistance to attacks from people who have somehow gained standing; but are outside of the local political culture.
A political culture where ‘discretion’ and ‘decency’ and ‘that might theoretically be legal; but to harass a satirist just because he has embarrassed a politician? That’‘s just not done!’ arguably speaks well(or at least better) of the local political culture; but it creates a dangerous vulnerability if someone(whether acclimatized to a different culture or just a ghastly rules-lawyering asshole who, at long last, indeed has no decency) decides to crash the party and demand that the law be applied as it is written, without regard for any cultural norms that govern how the law is applied in practice.
It isn’t a good thing that the American judicial branch has to spend so much time beating first amendment 101 into censorious assholes; but the fact that we are knee deep in domestic censorious assholes provides a robust immune response to any outside attempt to be a censorious asshole. Germany’s situation sounds like it involves a somewhat less poxed political culture; but, since it is less poxed, one with relatively few formal defenses if somebody just ignores the tacit rules and demands the full force of the explicit ones, as Erdogan is certainly doing.
I disagree, I think that no amount of rules work, and in fact in many cases the existence of rules encourage people to wallow in the worst behaviour the rules will allow. A society that expects everyone to cooperate gets everyone 3 points most of the time and gives some asshole 5 points some of the time. A society that expects everyone to defect walks around thinking that somehow everyone getting only 1 point will make the people who already have a million points behave. In reality, justice in America is only for people who can afford it anyway, so the idea that the rules are protecting the people just doesn’t pan out.
