Content Regulation / Censorship, Hate Speech, Political Expression, Public Order, Religious Expression
Gündüz v. Turkey
Closed Contracts Expression
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The right to Freedom of Expression, as enshrined in the European Convention on Human Rights (“ECHR”) covers the expression of ideas and information which shocks, offends or disturbs. The justification of a pro-Nazi policy could not be allowed to enjoy the protection afforded by Article 10 ECHR. Although the applicants explicitly distanced themselves from Nazi atrocities voicing their disapproval, Article 17 prevented the expression because it was considered an abuse of ECHR rights.
The first applicant was the President of the Association for the Defense of the Memory of Marshal Petain.
The second applicant was a lawyer who had assisted in the defense of Marshal Petain in his trial for collaboration with Germany during World War II. The lawyer passed away on 8 May 1995. On 24 June 1996, the Commission decided that his widow, Ms. Yvonne Isorni, had standing to continue the proceedings on her late husband’s behalf.
The second applicant wrote a text which was published by a national newspaper, calling upon the people of France to recognize Marshal Petain’s achievements during the period after the Armistice with Germany. The National Association of Former Members of the Resistance filed a criminal complaint against the applicants and they were convicted of the crime of publicly defending the crimes of collaboration with the enemy.
The publication in issue can be found in Paragraph 11 of the judgment.
The European Court of Human Rights (“ECtHR”) held by fifteen votes against six that the conviction of applicants for publication of an article in favor of Philippe Pétain was prescribed by law and pursued a legitimate aim. However, it was not necessary in a democratic society, and therefore, it violated Article 10 (Freedom of Expression).
The court ruled that the case “does not belong to the category of clearly established historical facts – such as the Holocaust – whose negation or revision would be removed from the protection of Article 10 by Article 17.” (Para. 47)
In doing so, the ECtHR ruled that the protections in Article 17 (prohibition against abuses of rights) could restrict the right to Freedom of Expression granted under Article 10 of the European Convention on Human Rights.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The lapse of more than 40 years makes it difficult to deal with remarks of the same severity within 10 or 20 years. ECHR States Parties should allow open and dispassionate debates on their own histories. However, with the addition of this case, it is unclear as to what events can be considered “non-negotiable” and what events are open for discussion. Similarly, the Court noted the seriousness of a criminal conviction, and, having regard to the existence of other means of intervention and rebuttal through civil remedies, the Court found the conviction was disproportionate to the aim pursued.
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.
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