Case Summary and Outcome

The European Court of Human Rights (“ECtHR”) affirmed the decision of the Supreme Court of Sweden, finding that a conviction of the applicants for the distribution of leaflets which disseminated homophobic propaganda was not a violation of Article 10 of the European Convention on Human Rights (“ECHR”), which protects freedom of expression.

Facts

Four Swedish citizens were prosecuted for going to a secondary school and distributing leaflets containing statements against homosexuality. The applicants were charged with “agitation against a national or ethnic group.” Pg. 4. The applicants were sentenced to fines and imprisonment by the District Court. They appealed that decision before the Swedish Court of Appeal, which reversed the decision, noting that punishment was a violation of the right to freedom of expression. The prosecutor appealed that decision to the Supreme Court, which reversed the Court of Appeals and affirmed the District Court, but changed the charges to only fines and suspended sentences. This Appeal followed. INTERIGHTS (the International Centre for the Legal Protection of Human Rights) intervened in the appeal.

Decision Overview

The ECtHR’s decision in this case was unanimous. Dean Spielmann presided as President.

The applicants first argued the Supreme Court’s decision was a violation of Article 10 of the Convention, which protects freedom of expression. Second, the applicants argued that the law was so unclear they could not be convicted of a crime in violation of Article 7 of the Convention. The Court found the conviction did infringe on the applicants right to freedom of expression, so then turned to the analysis of whether this infringement was prescribed by law and whether it was necessary in a democratic society. The Court found the conviction was prescribed by law as it was pursuant to Article 8 of the Swedish Penal Code, which pursued a legitimate aim: to protect the reputation and rights of others.

The Court then turned to whether the interference was necessary in a democratic society. To make this determination the Court looks at whether the conviction was proportionate to the aim pursued. The Court found the applicants were not sentenced to imprisonment, although the crime carries a maximum sentence of two years and were distributing leaflets with speech that almost rose to the level of hate speech to young and impressionable students. These factors lead the Court to conclude that although this was a restriction on speech it was prescribed by law and was necessary in a democratic society to pursue the legitimate aim of protecting the rights and reputation of others. The Court finally looked at whether the conviction violated Article 7 of the Convention. The Court found that this argument was inadmissible and did not discuss it. Therefore, the Court affirmed the decision of the Supreme Court.

Concurreence by Judge Speilmann: Judge Speilmann would not have found the leaflets to constitute “hate speech” as they were merely for starting a debate and did not fall within the definition of “hate speech.” Further, Article 10 does not protect “hate speech,” so because the Court identified the leaflets as “hate speech” they should have utilized a different analysis in reaching their conclusion.

Concurrence by Judge Bostjan M. Zupancic: Justice Zupancic compared the decision to a U.S. case and noted that the United States sets a higher standard for violations of freedom of speech – and if this case had been brought in the United States the result may have been different, but the EU court took a different approach to the issue. This Justice found that the Court went too far in the aspect of proportionality, “in limiting freedom of speech by over-estimating the importance of what is being said.” Pg. 22.

Concurrence by Judge Yudivska: Judge Yudivska wrote separately to say that they would find the leaflets constituted hate speech and would not receive protection under Article 10.