Irving v. Lipstadt


Holocaust Denial on Trial, Trial Transcripts, Day 27: Electronic Edition

Pages 136 - 140 of 183

<< 1-5181-183 >>
    No, I cannot say this. I cannot say that you did
 1something deliberately against ----
 2 Q. [Mr Irving]     Because that would actually be a contempt of court and, if
 3I was to do that, I would be culpable.
 4 MR JUSTICE GRAY:     Not suggested.
 5 MR IRVING:     Not suggested. On the following page, two lines
 6down, you make the same suspicion that I have not
 7disclosed crucial speeches. Are you just saying again
 8that I did not transcribe them, or that I did transcribe
 9them, or I did have tapes and did not make them available
10to the lawyers? It is the same question.
11 A. [Dr Hajo Funke]     Again, it is not a deliberate assumption, assumption of
12deliberativeness, that it was done deliberately. I cannot
13say this because I have no proof of it, so I will not.
14But, of course, there are crucial speeches not there. One
15of them we will get in the next hour or so.
16 Q. [Mr Irving]     Yes, because, of course, if I had edited the diaries or
17the speeches, then I would have taken out the little
18racist ditty that Mr Rampton thinks I should be horse
19whipped for.
20 MR JUSTICE GRAY:     It is not suggested you have doctored them.
21 MR IRVING:     You refer in paragraph 1.3.3, which is page 10, and
22I think this is a useful place to take it on, to the
23German Office for the Protection of the Constitution,
24which has been busy monitoring extremist organizations, as
25you describe. Now, can you explain to the court what the
26structure of the OPC is? There is an overall Federal

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 1body, is there not?
 2 A. [Dr Hajo Funke]     Yes.
 3 Q. [Mr Irving]     And each of provinces has its own provincial OPC. Is it a
 4political body?
 5 A. [Dr Hajo Funke]     No, it is a state institution on the Federal level and on
 6the provincial or state level the like. They have their
 7duty, according to the constitutional law and to various
 8laws that were given by the parliament, to observe
 9extremism of my kind, to monitor, and this is the main
11 Q. [Mr Irving]     Yes, but it is a body that in each case, both at Federal
12level and at provincial level, is subordinated to the
13Minister of the Interior, who is a political animal, is he
14not? He has the say?
15 A. [Dr Hajo Funke]     I have to reiterate what I said. It is not a political
16body. They have to stick to the rules. I do not know, it
17goes with the idea, and to a degree realized idea,
18that state officials stick to the rules, stick to the
19laws, and are not politicisable.
20 MR JUSTICE GRAY:     Mr Irving, I am wondering whether this is not
21in a way a bit similar to courts in foreign countries
22making decisions that you be deported and banned and so
23on. I do not think I am really very concerned, am I, with
24the views or activities of the OPC?
25 MR IRVING:     You are, my Lord, if I may respectfully say so,
26because much of his report depends on the reports provided

. P-137

 1by the OPCs. He quotes them extensively as though they
 2are the word of God. If I can establish to the court's
 3satisfaction that the OPCs are political animals created,
 4run and generated as propaganda instruments by the
 5government agencies and the government ministers
 6concerned, which is why they never criticise the activity
 7of the established parties, even when they are
 8unconstitutional, and demonstrably so, then this would
 9devalue whatever these people have to say about
10unfortunate people who come under their magnifying glass.
11 MR JUSTICE GRAY:     Yes. I suppose that is right.
12 MR IRVING:     Let me just put to you, Professor Funke, a decision
13of the constitutional court in Germany, that, when the OPC
14ruled that a party was right-wing radical or right-wing
15extreme, or was an enemy of freedom, and I will give you
16the German in a moment, and a danger for the liberal
17democratic basic order, then this was a value judgment
18which the Federal Minister of the Interior was uttering in
19pursuance of his constitutional duty to protect the
20liberal democratic basic order. I will say it to you in
21German now (German read from document not provided). In
22other words, this is a statement of the Supreme Court in
23Karlsruhe, which states that it is purely the opinion of
24the minister when he decides that a party is right-wing
25extreme or not.
26 A. [Dr Hajo Funke]     Can I see it?

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 1 Q. [Mr Irving]     It gives the actual source. I have highlighted it in
 2yellow for you. The footnote is the source.
 3 A. [Dr Hajo Funke]     Thank you.
 4 Q. [Mr Irving]     The point is that such statements defining people as
 5right-wing extreme are the opinion of the minister, a
 6value judgment and not a statement of fact.
 7 A. [Dr Hajo Funke]     Things are a bit more complicated. That is why I do not
 8know, this is also important for this context, I do not
 9know the context of what is said here. So there are
10different levels of decision-making processes of the
11BundesVerfassungsgerichte, the highest court in Germany.
12 MR JUSTICE GRAY:     I really do feel, I am sorry again to
13interrupt you, Professor Funke, this is not going to
14help. We are getting terribly ----
15 MR IRVING:     Into detail.
16 MR JUSTICE GRAY:     No, on the contrary. I think what counts is
17really what these individuals and parties have said and
18done. I take your point, which is why I did not stop you,
19that the views expressed by the OPC probably do not count
20for a huge amount, but I do not think we want to go into a
21detailed analysis of what the German Supreme Court has
22said about the way in which the OPC performs its
23function. That is what I am really getting at.
24 MR IRVING:     I would hope that you would attach more value to
25the opinion of the German Supreme Court than to myself in
26this matter.

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 1 MR JUSTICE GRAY:     I am not sure that really either in a sense
 2is particularly material. That is no criticism,
 3obviously, of either of you.
 4 MR IRVING:     As long as your Lordship bears this in mind when we
 5come to judgments on these bodies and people uttered by
 6the OPCs and I may remind you of it.
 7 MR JUSTICE GRAY:     I am more interested in Professor Funke's own
 8view rather than a reflection of somebody else's.
 9 MR IRVING (To the witness)     : Professor Funke, lower down on
10page 10, paragraph 1.3.4, you say that some of your
11sources are what I would consider anti-fascist?
12 A. [Dr Hajo Funke]     This is a very interesting point.
13 Q. [Mr Irving]     Well, briefly, please?
14 A. [Dr Hajo Funke]     Yes, briefly. I had to rely for the insider report that
15was done after the Michael Schmidt film on a source that
16was given by an anti-fascist so-called, self-described
17anti-fascist group, and that is because these groups, and
18I met them personally to be sure that I get the data
19right, these groups are near to this right-wing extremist
20scenery. So, in a given moment, for a special question,
21I had, for example, to identify one of these persons,
22I had to go to these sources, but I never, by each person
23are restrained to these sources. So I checked them double
24or triple to make a good judgment.
25 MR JUSTICE GRAY:     Yes.
26 MR IRVING:     

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