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German Federal Supreme Court (Bundesgerichtshof), Judgement of Dec. 12, 2000 – 1 StR 184/00 (Case Frederick Toeben), Decisions vol. 46 (2001), at 221-35.

Factual Background[]

Frederick Toeben, an Australian national, created a website in Australia (in English) that included a statement that the Holocaust never happened (the so-called "Auschwitz denial"). The website could be accessed in Germany and was accessed by German neo-Nazis. Under German law, "Auschwitz denial" is a criminal offense.

German Supreme Court[]

The Supreme Court convicted Toeben of Auschwitz denial and held that Germany had jurisdiction over Toeben under the territoriality principle, because the website could be accessed there so that the result of the offense occurred there.

The court did not investigate whether Toeben’s conduct was criminal or illegal under Australian law. At that time, Australian law did not criminalize “Auschwitz denial," and Toeben might have invoked the fundamental right to free speech under Australian constitutional law.