Austrian Court Frees Jailed Holocaust Denier By MARK LANDLER

Published: December 20, 2006

FRANKFURT, Dec. 20 — Thirteen months after being jailed in Austria for denying the Holocaust, the British historian David Irving was freed today by a court in Vienna, which ruled he could serve the remainder of his sentence at home on probation.

Noting that he made the statements “a long time ago, 17 years,” the appeals court said it did not expect Mr. Irving, 68, to repeat the offense, and was confident he would leave Austria immediately. His lawyer, Herbert Schaller, said Mr. Irving hoped to fly to Britain on Thursday.

Denying the Holocaust is a crime in Austria, which was part of the Third Reich from 1938 to 1945. But the appeals court turned down a request by prosecutors to extend Mr. Irving’s three-year sentence; instead, the court reduced it to two years and, in effect, set him free.

The decision drew pointed criticism. Some Austrian commentators noted that the court’s presiding judge, Ernest Maurer, is widely known to have close ties to the Freedom Party, a right-wing organization with a history of appealing to anti-foreign and anti-Jewish sentiment.

Mr. Irving, a prolific author of books about World War II and Nazi Germany who cultivated a second career as a globe trotting naysayer about the extent of Nazi atrocities, was arrested in southern Austria in November 2005 while on his way to speak to a right-wing student group.

The charges against him dated back to 1989, when Mr. Irving gave a series of speeches in Austria in which prosecutors said he denied there were gas chambers at the Auschwitz death camp.

Though Mr. Irving disavowed some of his most inflammatory assertions during his trial, and acknowledged that the Nazis had murdered millions of Jews, a lower court sentenced him to three years in prison without probation — a sentence that was viewed as quite severe.

“Throwing someone in jail for three years for something he said 17 years ago is intolerable,” Mr. Schaller, his lawyer, said. “As an Englishman, he couldn’t believe he would be imprisoned for that.”

But the prosecutor, Marie-Luise Nittel, told the court today that Mr. Irving remained a symbol to right-wing extremists. “The impact of such offenses should not be underestimated,” she said.

Mr. Irving’s books were on conspicuous display last week at a conference of Holocaust deniers in Tehran, organized by the Iranian government. Among the speakers was Robert Faurisson, a French academic and outspoken Holocaust denier, who prodded Mr. Irving during the 1980s to be more open about his doubts about the mass killing of Jews.

“I can’t think of worse timing for such a decision,” said Efraim Zuroff, director of the Israel Office of the Simon Wiesenthal Center. “A week after the Tehran conference, this is a decision that will encourage Holocaust deniers everywhere.”

The timing of the decision was not linked to the Tehran conference, legal experts said. Both sides appealed the initial sentence, and the higher court had been expected to rule around the end of the year.

Mr. Irving’s case set off a debate in Austria — a country with a fitful history of confronting its Nazi past. Long criticized for not adequately punishing former Nazis, Austria has in recent years earned a reputation for rigorously prosecuting those who publicly deny the Holocaust.

Nearly 20 other countries, including Germany, have laws that prohibit denying the Holocaust.

In Austria, though, some people argued that however noxious Mr. Irving’s views, he should be allowed to express them. Others said the law was necessary, because, as Hans Rauscher, a columnist at the Vienna newspaper Der Standard, put it, “Denial of the Holocaust is not an opinion, it is a political act which tries to bring Nazi thought into the mainstream.”

Mr. Rauscher said he believed 13 months in jail was sufficient punishment for Mr. Irving. But he said he was troubled by the involvement of Judge Maurer, a conservative jurist whom Mr. Rauscher said, “is known for very lenient opinions towards right-wing extremism.”

In several cases, Judge Maurer ruled in favor of Jörg Haider, the founder of the Freedom Party, after he sued journalists and academics who accused him of trying to rationalize Nazism.

In 2000, Judge Maurer was the choice of the Freedom Party to serve on a board that oversees the Austrian public broadcasting network, ORF. Mr. Maurer is not a member of the party, and he has always said in the Austrian press he decides cases based on the legal facts.

Even some of Mr. Irving’s fiercest foes opposed the decision to jail him. Deborah Lipstadt, a historian at Emory University in Atlanta who won a libel suit filed against her by Mr. Irving in 1998, said in an interview, “I don’t believe that history should be adjudicated in a courtroom.”

Professor Lipstadt said the imprisonment risked turning Mr. Irving into a martyr. “He’s got the best of both worlds,” she said, “He’s now a martyr to free speech, and he’s free to talk about it.”

Today, however, his lawyer said Mr. Irving would say nothing publicly before leaving Austria.