NIX v. GERMANY DECISION
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requirements in so far as the remainder of his submission was concerned
(see paragraphs 34-36 below). While it was possible to provide the
reasoning of an appeal on points of law by having it recorded at the court’s
registry, the judicial officer (Rechtspfleger) had the function of informing
and examining the submission so as to avoid the Court of Appeal having to
examine ill-founded or incomplete submissions (see paragraph 36 below).
In the present case, the applicant’s submission on 22 June 2015 was such
that the judicial officer merely wrote it down, as evidenced by the judicial
officer’s note that it was not possible, in the light of the length of the
submission (twenty-one pages), the many citations and the shortage of time
available (two hours), to critically review the submission. The applicant’s
submission regarding the grounds for his appeal on points of law had thus
not been made in compliance with the respective formal requirements (see
paragraph 36 below).
22. The prosecution authorities argued that the Regional Court’s
judgment had, in any event, not disclosed any errors. The blog post at issue
could not be compared to media content, which was meant to serve a civil
education purpose and reported on current or historical events or similar
purposes, thus falling under Article 86 § 3 of the Criminal Code (see
paragraph 29 below). The Regional Court had thoroughly and correctly
reasoned why the applicant could not rely on that provision. They asked that
the applicant’s appeal on points of law be dismissed as ill-founded.
23. In his reply of 19 July 2015 the applicant submitted that he had, on
30 May 2015, requested that counsel be appointed to him for his appeal on
points of law and that this request had been refused on 3 June 2015 because,
inter alia, he had been able to lodge his appeal on points of law by making
an oral statement before the Regional Court’s Registry in order to have it
recorded. In substance, he mainly repeated his earlier submissions.
24. On 28 July 2015 the prosecution authorities requested the Court of
Appeal to discontinue the proceedings in so far as they related to libel
because the sentence for that offence was insignificant compared to that for
the use of symbols of unconstitutional organisations.
25. On 4 August 2015 the Munich Court of Appeal rejected the
applicant’s appeal on points of law in so far as it related to his conviction
for using symbols of unconstitutional organisations and confirmed the
separate sentence of 120 day-fines of EUR 10 each set by the Regional
Court in this regard (see paragraph 17 above). Endorsing the reasoning of
the Regional Court and referring to the submission of the prosecution
authorities of 8 July 2015, it added that the applicability of Article 86a § 1
of the Criminal Code could only be restricted, beyond the scenarios covered
by Article 86 § 3 of the Criminal Code, where it was obvious from the
circumstances of the case taken as a whole that the person clearly distanced
himself or herself from the objectives of Nazi ideology (see paragraph 32
below). The Regional Court had found that this was not the case in respect