Case Summary and Outcome

The European Court of Human Rights unanimously declared an application seeking protection under Article 10 inadmissible. In this case, the applicant was the leader and spokesperson of the organization “Sharia4Belgium,” which was dissolved in 2012. The applicant was prosecuted by national authorities on the grounds that he incited others to discrimination, hatred, and violence. This was related to YouTube videos in which he called on viewers “to overpower non-Muslims, teach them a lesson and fight them.” The Second Section of the European Court of Human Rights observed his speech sought to stir up hatred, discrimination, and violence toward all non-Muslims. In the Court’s view, such a general and vehement attack was incompatible with the values of tolerance, social peace, and non-discrimination underlying the Convention. The Court relied on Article 17 of the European Convention on Human Rights (the non-destruction clause) and held the application manifestly ill-founded.

Facts

The applicant was the leader and spokesperson of the organization “Sharia4Belgium”, which was dissolved in 2012. The applicant was prosecuted for incitement to discrimination, hatred and violence for remarks he made in YouTube videos concerning non-Muslim groups and Sharia. Comments included “Muslims are here to dominate, Allah is the one who proclaimed his message with the truth and the true religious is here to dominate the world to rule over all systems”; “I am not calling on Muslims to fight but it will still be the consequences…We are not Christians, we do not turn our other cheek when someone hits us. We seek confrontation. Belgium is warned. Our honour is worth more than our life”; “You are even dirtier than animals. At least they do not drink alcohol only to throw it up afterwards.” The national authorities gave the applicant a suspended one year and six months’ prison term and a fine of EUR 550.

Decision Overview

The applicant argued that his right to freedom of expression under Article 10 of the European Convention on Human Rights had been violated. He argued that he never intended to “incite” hatred, violence, or discrimination and, as a result, “the intentional element of the offence for which he was convicted had therefore not been established” [para.27]. The ECtHR noted from the outset that “it is not for it to rule on the constituent elements of the offence of incitement to hatred, violence, and discrimination” and that it is “primarily for the national authorities, in particular the courts, to interpret and apply domestic law” [para. 29].

Referring to cases such as Handyside v the UK, Lingens v Austria, Jersild v Denmark, the ECtHR underlined that “its case law has established the eminent and essential nature of a freedom of expression in a democratic society.” It noted, however, that certain speech falls outside the protection of Article 10 and Article 17 of the Convention [para.30]. As such, the ECtHR was ascertaining whether Article 17 was relevant to this case rather than conducting the legal test set out by Article 10. Specifically, it noted that Article 17 “only applies exceptionally and in extreme circumstances.” Relying on Perinçek v. Switzerland, it noted that in relation to Article 10 case law, “it should only be used if it is quite clear that the impugned remarks were intended to deviate this provision from its real purpose” [para. 31]. As such, “the decisive question under Article 17 is whether the applicant’s statements were intended to stir up hatred or violence and whether, in making them, he sought to invoke the Convention in such a way as to engage in an activity or to commit acts aimed at the destruction of the rights and freedoms enshrined therein” [para. 31].

The Court noted that the applicant had published a series of videos on YouTube in which he called on viewers to “overpower non-Muslims, teach them a lesson and fight them.” The Court held that his recordings had sought to stir up hatred, discrimination, and violence towards all non-Muslims. In the Court’s view, such a general and vehement attack was incompatible with the values of tolerance, social peace, and non-discrimination underlying the Convention. The Court used Article 17 of the ECHR, finding the application manifestly ill-founded. The ECtHR found that his statements promoted hatred and violence against Non-Muslims and, therefore, fell outside the protection of the Convention.

In applying the above assessment of Article 17, “the Court has no doubt as to the strongly hateful content of the applicant’s opinions and endorses the conclusion of the domestic courts that the applicant sought, through his recordings, to hate, discriminate against and be violent against non-Muslims. In the Court’s opinion, such a general and vehement attack is in contradiction with the values ​​of tolerance, social peace, and non-discrimination which underlie the Convention” [para. 33]. It reached its decision by relying on relevant case-law such as Garaudy v. France, Witzsch v. Germany, W.P and Others v. Poland, Norwood v. UK, Pavel Ivanov v. Russia, M’Bala and M’Bala v. France. 

As such the Court relied on Article 17 of the European Convention on Human Rights (the non-destruction clause) and held the application manifestly ill-founded.