Case Summary and Outcome

The Fourth Section of the European Court of Human Rights declared inadmissible an application brought by a writer found guilty by the national authorities of disputing the existence of the Holocaust in his book ‘The Founding Myths of Modern Israel”.  National authorities gave him suspended sentences of imprisonment, the longest being for six months and fines in excess of 25,900 Euros, and compensation of more than 33,500 Euros for the civil parties.  The European Court of Human Rights reached its conclusion by arguing that revisionist/negationist speech in relation to the Holocaust and speech which includes racially defamatory statements and incites racial hatred fall outside the protection of Article 10 and Article 17. The Court determined that the grounds “on which the national authorities convicted him, were relevant and sufficient,” and that the restriction was “necessary in a democratic society.” As such, the Fourth Section of the European Court of Human Rights relied on Article 17 (the non-destruction clause), unanimously finding the application inadmissible

Facts

The applicant, philosopher and writer is the author of a book entitled The Founding Myths of Modern Israel, which was distributed through non-commercial outlets in 1995 and subsequently republished at the applicant’s own expense in 1996. Several criminal complaints were lodged which concerned various passages from both editions of the book.  For example, he stated that “Thus the words ‘gas chambers‘, ‘genocides‘ and ‘holocausts’ are put in quotation marks and presented as an ‘unexpected alibi’” …, “a myth dressed up as history and the political mileage gained from it”, “the myth of six million exterminated Jews that has become a dogma justifying and lending sanctity (as indicated by the very word Holocaust) to every act of violence” [page 85].

As a result, five judicial investigations were started into the applicant’s conduct. The applicant was found guilty of disputing the existence of crimes against humanity, public defamation of a group of people – namely the Jewish community – and incitement to discrimination and racial hatred. He received suspended sentences of imprisonment, the longest being for six months, and fines. The prison sentences were to be served concurrently. The fines came up to 25,900 euros and compensation of more than EUR 33,500 was awarded to the civil parties.

Decision Overview

The Court’s assessment of the impugned speech: The Court held that the book adopted revisionist theories and disputed the existence of the crimes committed by the Nazis against the Jews. The Court held that disputing the existence of clearly established historical events such as the Holocaust did not constitute historical research but was rather an effort to rehabilitate the Nazi regime and accuse Holocaust victims of falsifying history. Denying their existence was one of the most severe forms of racial defamation and incitement to hatred of Jews. The denial or rewriting of this type of historical fact undermined the values on which the fight against racism and anti-Semitism. It was incompatible with democracy and human rights and fell into the framework of Article 17.

The European Court of Human Rights reiterated that freedom of expression is essential in a democratic society (Handyside v. United Kingdom) and Lingens v. Austria. Relying on Lehideux and Isorni v. France, it noted that there is “no doubt that, like any other remark directed against the Convention‘s underlying values …, the justification of a pro-Nazi policy could not be allowed to enjoy the protection afforded under Article 10” and that there is a “category of clearly established historical facts – such as the Holocaust – whose negation or revision would be removed from the protection of Article 10 and by Article 17.” 

The European Court of Human Rights had to consider the relevance of Article 17 (non-destruction clause) to the case. It relied on the case law of the defunct Commission but also of the Court itself (particularly, Glimmerveen and Hagenbeek v. The Netherlands, Lehideux and Isorni v France, and Marais v France.  The French Government argued that when Article 10 (the right to freedom of expression) was relied upon by applicants to “justify the publication of texts that infringed the very spirit of the Convention and the essential values of democracy, the Commission had always had recourse to Article 17 of the Convention, either directly or indirectly, in rejecting their arguments and declaring their applications inadmissible.” ( The Court had subsequently confirmed that approach.)

The Court noted that negating or revising historical types of this type “calls into question the values ​​which underlie the fight against racism and anti-Semitism and are likely to seriously disturb public order. Such acts affect the rights of others and are incompatible with democracy and human rights, and their perpetrators undoubtedly pursue objectives which are prohibited by Article 17.” The Court subsequently noted that most of the book’s content and its general tone had a “marked denialist character and therefore goes against the fundamental values ​​of the Convention.” As a result of the above, the European Court of Human Rights, relying on Article 17 of the European Convention on Human Rights found the application to be incompatible ratione materiae with the Convention.

In relation to the next aspect of the applicant’s book, namely racial defamatory statements and incitement to racial hatred, the European Court of Human Rights found these (in addition to the general revisionist/negationist nature/tone of the book) meant that the statements fell fall outside the protection of Article 10 of the Convention. This part of the application was rejected as manifestly ill-founded under Article 35 (3) and (4) of the Convention.

Due to the above, the Court unanimously declared the application inadmissible.