Content Regulation / Censorship, Hate Speech, Political Expression
Gündüz v. Turkey
Closed Contracts Expression
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The European Commission on Human Rights (which is no longer operational) concluded that there was no violation of freedom of expression as stipulated in Article 10 of the European Convention on Human Rights. The case involved a challenge to the conviction of the Applicants by the Netherlands Court for possessing leaflets that incited racial discrimination. The European Commission determined that the speech was unacceptable and that, if the Netherlands had allowed it to continue with no punishment, this would encourage discrimination. In its ruling, the Commission also made reference to Article 14 of the ECHR, which addresses non-discrimination. The European Commission placed particular emphasis on the fact that the Applicants’ promoted policy sought to forcibly remove all individuals of non-white ethnicity from the Netherlands, disregarding their nationality, duration of residence, familial connections, and various social, economic, humanitarian, and other relevant considerations. Consequently, the European Commission determined that this policy unmistakably included aspects of racial discrimination, a practice strictly forbidden by the Convention and other international treaties. The European Commission found the application to be clearly lacking in substance under Article 17 of the European Convention on Human Rights.
The case involved two Applicants. The first Applicant, Glimmerveen, is a Dutch accountant, while the second Applicant is a Dutch waiter. Glimmerveen was the president of the “Nederlandse Volks Unie,” a political party formed in 1971. The party’s core principles include advocating for separate nations with ethnically homogeneous populations and opposing racial mixing.
On March 29, 1977, the first Applicant was convicted and sentenced by the Regional Court of Rotterdam for possessing leaflets that incited racial discrimination. These leaflets were discovered in Schiedam on August 30, 1976, and contained phrases such as “white Dutch people” and “our white people,” promoting the expulsion of Surinamers, Turks, and other guest workers from the Netherlands. On August 16, 1977, the Court of Appeal of The Hague affirmed the conviction, determining that the passages constituted incitement to racial discrimination, including the indiscriminate removal of Surinamers. The court emphasized the seriousness of this form of discrimination, noting that many Surinamers residing in the Netherlands held Dutch nationality. The Court also concluded that the contents of the leaflets were not based on factual information.
The first Applicant then filed a plea of nullity before the Supreme Court in The Hague, arguing that the Dutch Penal Code i.e., Article 137 had been wrongly applied and that there were violations of Article 10 of the European Convention on Human Rights and Article 5 of the Dutch Constitution. However, on March 14, 1978, the Supreme Court rejected the plea, considering the arguments irrelevant, unfounded, and unsubstantiated.
The European Commission of Human Rights unanimously delivered the judgment. The primary issue before the Commission was to determine whether the Applicants’ right to freedom of expression under Article 10 of the ECHR was violated.
The Commission made reference to Handyside v. United Kingdom, (1976), wherein the European Court of Human Rights established that freedom of expression is a fundamental pillar of a democratic society and a fundamental requirement for progress and the growth of every individual. The Commission further emphasized that, according to the above judgment, freedom of expression is not only applicable to information or ideas that are well-received or considered harmless, but also extends to those that may offend, shock, or disturb the state or certain segments of the population. This inclusiveness is necessary to uphold the principles of pluralism, tolerance, and open-mindedness, which are essential for a democratic society.
Furthermore, the Commission established that individuals exercising their freedom of expression also bear duties and responsibilities, which vary depending on their situation and the means they use to express themselves. The Commission believes that these duties and responsibilities are even more explicitly stated in Article 17 of the Convention. The Commission observed that Article 17 clarifies that no state, group, or person has the right to engage in activities or perform acts aimed at destroying any of the rights and freedoms enshrined in the Convention or limiting them to a greater extent than provided for within the Convention. The Commission observed that the purpose of Article 17 is to prevent totalitarian groups from exploiting the principles outlined in the Convention for their own interests. It clarified that Article 17 does not require the complete removal of all rights and freedoms from individuals engaged in activities aimed at destroying those rights and freedoms. Rather, it focuses on the rights that, if invoked, could facilitate engagement in destructive activities against the Convention’s principles. [Lawless v. Ireland, (1961)]
Considering these principles, the Commission examined the complaints raised by the Applicants. The leaflet, which led to their conviction, specifically targeted the “white Dutch people” and made statements such as expressing the dissatisfaction of the majority with the presence of Surinamers, Turks, and other guest workers in the Netherlands. The leaflet further announced the intention of the Nederlandse Volks Unie (NVU) to remove non-white individuals from the country once they gained political power.
Based on the content of the leaflet, the Commission concluded that the Applicants’ advocated policy aimed to remove all non-white people from the Netherlands without considering their nationality, length of residence, family ties, or other relevant considerations. The Commission firmly believed that this policy contained clear elements of racial discrimination, which is explicitly prohibited under the Convention and other international agreements. The Commission held that due to the applicants’ intention to misuse the text and principles of the Convention by invoking Article 10, Article 17 should be invoked in this particular case. Accordingly, the Commission asserted that “the applicants’ expression of political ideas unequivocally qualifies as an activity as defined by Article 17 of the Convention.”
The Commission reaffirmed that Article 14 of the Convention guarantees the enjoyment of rights and freedoms without discrimination based on grounds such as race or color. It also recognized that in certain circumstances, discrimination based on race alone could amount to degrading treatment under Article 3 of the Convention. [East African Asians (British Protected Persons) v. The United Kingdom, (1978)] While the Netherlands has not ratified the Fourth Protocol to the Convention, which prohibits collective expulsion of nationals and aliens, it is still possible for the country to adopt measures, either autonomously or based on other international obligations, to uphold these rights. The Dutch government specifically referred to their international obligations under the International Convention on the Elimination of All Forms of Racial Discrimination of 1965, to which they acceded in 1971. Allowing the Applicants to freely proclaim their discriminatory ideas without any consequences would encourage the very discrimination prohibited by the European Convention on Human Rights.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Commission’s exclusionary approach to racist rhetoric continued in Kuhnen v. Federal Republic of Germany. In this case, the applicant held a seminal position in an organisation that was allegedly attempting to re-institute the Nazi party, prohibited in Germany. In this context, he prepared and disseminated pamphlets which included, amongst others, statements such as “We are called ‘Neo-Nazis’! So what! … We are against: bigwigs, bolshevists, Zionists, crooks, cheats and parasites.” He was sentenced to three years and four months’ imprisonment. The Commission found that the applicant’s proposal, as expressed in the pamphlets, contravened one of the basic values underlying the Convention, ‘namely that the fundamental freedoms enshrined in the Convention are best maintained by an effective political democracy.’ In this case, the Commission found that the applicant sought to use the freedom provided in Article 10 as a tool to carry out activities which oppose the spirit of the Convention. The Commission relied on the meaning of Article 17 to pinpoint the necessity ground of Article 10. Initially one may believe this to demonstrate an early day confusion by the Commission on how the non-destruction clause should essentially be used. However this Article 10–17 combination was extended to Remer v Germany six years later, which dealt with the dissemination of leaflets suggesting that gas chambers during the Nazi regime never existed.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
This case was decided by the now defunct European Commission on Human Rights but is nevertheless significant in terms of the use of Article 17 and hate speech and has been referred to in some cases. Whilst case law has been developed since the European Court of Human Rights has been developed further.
Let us know if you notice errors or if the case analysis needs revision.