Defamation / Reputation, Political Expression
Instytut Ekonomichnykh Reform, TOV v. Ukraine
Closed Mixed Outcome
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The European Court of Human Rights held that criminally convicting a Member of Parliament for their statements of qualified Holocaust denial did not infringe on their right to freedom of expression per Article 10 of the European Convention on Human Rights. The applicant, who made the statements in the course of a parliamentary session and later had his parliamentary immunity revoked, argued that the interference with his right to freedom of speech was particularly significant given the higher level of protection warranted as a parliamentarian. Whilst the Court acknowledged the need for very close scrutiny in cases concerning the speech of Members of Parliament, it nevertheless found that freedom of expression comes with various duties and responsibilities that must be respected. Among other arguments, the Court found that the applicant’s statements were so contrary to the text and spirit of the Convention that, per Article 17, he could not rely on his right to freedom of expression to promote those views. Given the content, context and pre-planned nature of the statements, the Court found the German courts’ interference to be necessary in a democratic society – particularly in one that has experienced the horrors of Nazism.
German national Mr Udo Pastors (the applicant) was a Member of Parliament and chairperson of the National Democratic Party of Germany in the Land Parliament of Mecklenburg-Western Pomerania. On 28 January 2010, a day after a parliamentary memorial event honouring Holocaust Remembrance Day, the applicant addressed a speech to the Parliament to commemorate those who died on the military transport ship Wilhelm Gustloff. He stated, inter alia, that: “[s]ince the end of the Second World War, Germans have been exposed to an endless barrage of criticism and propagandistic lies – cultivated in a dishonest manner primarily by representatives of the so-called democratic parties… the event [honouring Holocaust Remembrance Day] … was nothing more than you imposing your Auschwitz projections onto the German people in a manner that is both cunning and brutal. You are hoping, ladies and gentlemen, for the triumph of lies over truth.”
As a Member of Parliament, the applicant was entitled to immunity from certain criminal liabilities – however criminal defamation charges incurred in Parliament fell outside the scope of any such inviolability, per Article 24 of the Constitution of the Land of Mecklenburg-Western Pomerania. Further, on 1 February 2012, the Parliament revoked the applicant’s inviolability from prosecution. Consequently, on 16 August 2012 three judges of the Schwerin District Court convicted the applicant of two charges under the Criminal Code – violating the memory of the dead per Article 189 and defamation per Article 187. He was sentenced to eight months imprisonment, which was suspended on probation.
The applicant then took the case to the Schwerin Regional Court, which dismissed his appeal as “ill-founded” (para 9) on 25 March 2013, and upheld both criminal convictions. When viewing the entirety of his speech to Parliament objectively, the Court concluded that applicant had denied the mass murder of Jewish people at Auschwitz during the Third Reich. The Court particularly drew attention to the fact the applicant used terms such as “Auschwitz lie”, “Auschwitz myth” and “Auschwitz cudgel” which had been regularly used since the Second World War in association with claims that the systematic murder of millions of Jews during the Holocaust did not occur, or had otherwise not taken place as historians recount it, for the furtherance of certain political and commercial purposes (para 11). Although the Court acknowledged that the large parts of the applicant’s speech dealt with other historical mass murders and German victims of the Second World War (including those who were on Wilhelm Gustloff), it remained convinced that the applicant had “snuck in” qualified Holocaust denial into his parliamentary speech as if “inserting poison into a glass of water, hoping that it would not be detected immediately” (para 13). By denying the “established historical fact” of the mass murder of Jews during the Second World War, the applicant had defamed the persecution of Jews in Germany, which had formed “an inherent part of their personal dignity” (para 14). In doing so, applicant had simultaneously also violated the memory of Jews killed at Auschwitz during the Third Reich.
On 25 March 2013, the applicant appealed on the points of law to the Rostock Court of Appeal. He later learned that one of the judges adjudicating the case was married to one of the District Court judges who had convicted him in the first instance, and, on 5 August, lodged a complaint of bias against the particular Court of Appeal judge. The Court of Appeal dismissed the bias compliant as inadmissible. The applicant then lodged a further bias complaint against all three Court of Appeal judges, which was rejected on 14 November 2013,on the grounds of being ill-founded.
On 5 June 2014, the Federal Constitutional Court declined to adjudicate the applicant’s constitutional complaint without reason. On 30 July, the applicant lodged an application with the European Court of Human Rights against the Federal Republic of Germany, alleging a breach of his right to freedom of expression under Article 10 and his right to an impartial trial per Article 6(1) of the European Convention on Human Rights.
The Chamber delivered the judgment on 9 July 2019, which was unanimous in its decision regarding the alleged violation of Article 10.
The primary issues before the Court were to establish if the applicant’s convictions violated his (i) freedom of speech under Article 10, and (ii) his right to an impartial trial under Article 6 of the Convention. For the purposes of this analysis, only issues relating to Article 10 will be discussed.
The parties’ arguments
The Government argued that the applicant’s denial of the Holocaust “ran counter to the text and spirit of the Convention” and as such, he could not rely on Article 10 to protect his statements, per Article 17. On that basis, the applicant’s application would be inadmissible. Alternatively, the Government submitted that the applicant’s complaint was ill-founded because the domestic courts had already thoroughly explained and justified their interference with his right to freedom of speech due to his Holocaust denial – and the fact he was a Member of Parliament and made the impugned statement in Parliament could not alter their reasoning.
The applicant submitted that the Court had wrongly interpreted his statements as Holocaust denial by their choice selection of certain parts of the speech, rather than analysing it as a whole. In its entirety, the speech was intended to honour the sufferings of “German” victims and to criticize the German establishment’s ‘culture of remembrance’ (para 35) – and as such, could not classify as Holocaust denial and related questioning of historical facts, as it pertains to Article 17 of the Convention. In any case, the applicant argued that being a Member of the Parliament entitled him to a higher level of protection for statements made in the Parliament, and any such interference with his right to freedom of expression must be scrutinised closely.
Applicable legal basis
The applicant had been convicted by the German domestic courts of Articles 187 and 189 of the Criminal Code, which related to intentional defamation and violating the memory of the dead respectively.
The applicant claimed that the aforementioned criminal convictions had violated his right to freedom of expression as per Article 10 of the Convention. Per Article 10, the Court must assess whether the domestic courts’ interference with his freedom of expression was both prescribed by law and was necessary in a democratic society, for the protection of the reputation or rights of others.
The Government also relied on Article 17 of the Convention, which can only be applied when linked with another right under the Convention (in this case, Article 10). This is known as the abuse clause, as it seeks to prevent the abuse of rights to intentionally destroy other rights and freedoms within the Convention. It has previously been applied by the Court in the context of Holocaust denial and other questioning of established historical facts, and thus is relied upon in the Court’s interpretation of Article 10 and the use of any racist or xenophobic speech against minorities.
Article 17 and Holocaust denial
The Court began by noting the decisions in its previous cases concerning the denial of the Holocaust and other statements relating to Nazi crimes. Previous statements have been held to be inadmissible, either as being ill-founded under Article 10(2) when read with Article 17 (citing Williamson v. Germany ECtHR  64496/17), or otherwise as having incompatible subject matter jurisdiction under Article 17 (Perinçek v. Switzerland ECtHR  27510/08). The Court reiterated that Article 17 is reserved for extreme cases and on exceptional bases, and should only be used in Article 10 cases if it is “immediately clear” that the statements in issue seek to employ the right to freedom of expression “for ends clearly contrary to the values of the Convention” (para 37) – such as inciting hatred or violence or aiming to destroy the rights and freedoms listed in the Convention. Any case concerning Holocaust denial must be taken on a case-by-case basis and depends on all the circumstances of that particular case, when it comes to the Court’s decision to either apply Article 17 directly to the applicant’s Article 10 application and declare it incompatible with the subject matter jurisdiction of the Court, or instead to apply the general law principles under Article 10 and invoke Article 17 at a later stage as an interpretive aid when examining the necessity of any alleged interference by the domestic courts.
Next, the Court recognised the “very limited latitude” of States when regulating the content of parliamentary speech, considering it to be “political speech par excellence” (para 38). Nevertheless, certain restrictions may be considered necessary to prevent certain statements – such as direct or indirect calls or violence – but these would be rare given the widely-regarded rule of Parliamentary immunity and thus a States’ increased level of protection for the speech of its parliamentarians. As the applicant submitted, per Karacsony v Hungary ECtHR  42461/13 and 44357/13, intense scrutiny is particularly required when domestic courts interfere with the freedom of expression of an opposition member of Parliament.
Holocaust denial and freedom of expression in a parliamentary context
When assessing this case, the Court balanced the fact the applicant’s statements illustrated a disdain towards Holocaust victims – which is incompatible with the values of the Convention – with the fact the statements were made by a Member of Parliament during a parliamentary session, and thus could justify an increased level of protection and close scrutiny. The Court found it particularly pertinent that the Parliament had revoked the applicant’s immunity from prosecution.
From the outset, the Court was satisfied the domestic courts had interfered with the applicant’s right to freedom of speech, and that such interference had the legitimate aim of protecting the reputation and rights of others as per Article 10(2) – given the offences of intentional defamation and violating the memory of the dead. Thus, the Court’s examination was limited to determining if the interference was “necessary in a democratic society” (para 42).
The Court rejected the applicant’s argument that the domestic courts’ conviction was based upon selected small parts of his speech, or that his statements were viewed in isolation. Instead, it observed that the Regional Court had not only “cited and assessed applicant’s speech in full”, but explicitly clarified that certain parts of his statement did not raise criminal law issues and that he could rely on his right to freedom of expression insofar as he had criticized the remembrance of National Socialism victims and used “strong language” (para 44). Distinguishing the case from Kurlowicz v Poland ECtHR  41029/06, the Court also found it particularly relevant that the applicant’s discussion of remembering National Socialism victims had ties to ongoing parliamentary debate, whereas his denial of the Holocaust did not have any relevance or integral link to any parliamentary discussions.
Moreover, the Court attached great importance to the applicant’s advance planning of his speech, having “deliberately” chosen words to convey messages that denied the Holocaust, showed disdain towards the victims of Auschwitz, countered established historical facts, and alleged “that the representatives of the ‘so-called’ democratic parties were using the Holocaust to suppress and exploit Germany” (para 46). It was this factor that persuaded the Court to consider the “important role” of Article 17 of the Convention, because the applicant had plainly “sought to use his right to freedom of expression with the aim of promoting ideas contrary to the text and spirit of the Convention. This weighs heavily in the assessment of the necessity of the interference” (para 46).
Crucially, the Court held that despite the need to accord speech by an elected parliamentary official with a higher level of protection, statements such as those by the applicant in this case “deserve little, if any” protection under the Convention if the content of those statements are contrary to its democratic values (para 47). Even in situations of parliamentary immunity or privilege, the Court opined that the right to freedom of expression is accompanied by “duties and responsibilities” per Article 10(2) of the Convention. Consequently, parliamentary speech cannot be afforded unlimited protection in contexts such as these.
The Court also added that the interference would nevertheless be proportionate to the legitimate aim pursued and thus “necessary in a democratic society” per Article 10. This was particularly so given the “historical role and experiences” of States that have suffered Nazi horrors, and thus their “special moral responsibility to distance themselves” from the atrocities committed by the Nazis during the Holocaust (para 48). Moreover, although the applicant’s punishment of eight months imprisonment suspended on probation was reasonably hefty, the Court found that the domestic courts had not overstepped their margin of appreciation and had given relevant and sufficient reasons for such a penalty.
Given the aforementioned circumstances, the Court concluded that the domestic courts’ interference was proportionate to the legitimate aim pursued and thus “necessary in a democratic society”. Accordingly, there was no violation Article 10 of the Convention and, having invoked Article 17, the Court unanimously deemed the applicant’s complaint to be manifestly ill-founded and inadmissible under Article 35 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case technically limits freedom of expression, by the Court’s unanimous verdict that domestic authorities are legally able to prohibit statements that deny the existence of the Holocaust or otherwise question established historical facts about the Second World War. This was undoubtedly a balancing act for the Court – particularly when assessing whether circumstances justify the use of Article 17. Academics Cannie and Voorhoof, for example, note that the Court’s application of Article 17 in this context can lead to the ‘categorical exclusion’ from the right to freedom of expression under Article 10, and do not add any extra substance or expediency to Holocaust denial cases. They reason that decisions such as this one fundamentally clash with the Court’s general trend of accepting and widening the scope of protections of the right to freedom of expression, and of analysing the case as a whole. They argue for the Court to remove their application of Article 17 in all future decisions, finding Article 10 to be sufficient to cover all forms of hate speech, and that a loss of that analysis by applying Article 17 may ‘set side substantial principles and safeguards’ that underpin European’s legal frameworks of freedom of speech.
Nevertheless, considering the wide range of factors the Court raised, this is undoubtedly the correct decision in order to further and protect the text and spirit of the European Convention of Human Rights – and international human rights more generally.
By upholding the legality of the applicant’s domestic criminal convictions, the Court established clear precedent for Holocaust denial in a parliamentary context. The blanket condemnation of the applicant’s pre-planned denial of Nazi atrocities and other historical facts conveys a strong message to States that promoting these kinds of statements is not only unnecessary in a democratic society, but further, fundamentally goes against the text and spirit of the Convention itself. Further, as academics such as Lobba have observed, present-day understandings of ‘denialism’ need to adopt a more comprehensive view that does not only revolve around the Holocaust, but also “encompasses a wider set of conduct ranging from the denial, gross trivialization and justification of genocides at large to that of most or all core international crimes.”
While the Court obviously could not take into account the past behaviour of the applicant, it is equally significant to note the applicant has an established record of making public statements that deny and demean the events of the Holocaust, and the persecution of Jews more broadly. Given that National Democratic Party won a seat in the European Parliament in 2014 – four years after the applicant (then leader of the Party) made these impugned statements – the Court was clearly justified in raising concerns about how the applicant may use his speeches to destroy the rights and freedoms enshrined in the Convention. With this in mind, the Court’s consideration of Germany’s historical experiences of Nazi atrocities is thus all the more pertinent, and serves as an important safeguard against a potential repeat of mass atrocities against marginalised groups and those who have been historically discriminated against.
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