Application Number 55225/14
European Court of Human Rights
The applicant, a politician of the National Democratic Party of Germany, made statements on the day after Holocaust Remembrance Day, denying the Holocaust. He was convicted for denying the systematic, racially motivated, mass extermination of the Jews carried out at Auschwitz during the Third Reich. The ECtHR held his case to be manifestly ill-founded.
Theme(s): Genocide Denial (Holocaust)
Date: 3rd January 2020
Description of applicant(s): Politician
Brief description of facts: The day after Holocaust Remembrance Day, the applicant, then a member of the Land Parliament of Mecklenburg-Western Pomerania, made a speech stating that “the so-called Holocaust is being used for political and commercial purposes”. He also referred to a “barrage of criticism and propagandistic lies” and “Auschwitz projections.” He was charged and convicted for denying the systematic, racially motivated, mass extermination of the Jews carried out at Auschwitz during the Third Reich.
(Alleged) target(s) of speech: Jews
The Court’s assessment of the impugned speech: The Court found that the applicant had prepared his speech in advance and had sought to deny the Holocaust and show disdain to its victims. Article 17 was used and the application was found to be manifestly ill-founded.
Important paragraphs from the judgment:
Para.46: The Court attaches fundamental importance to the fact that the applicant planned his speech in advance, deliberately choosing his words and resorting to obfuscation to get his message across: a qualified Holocaust denial showing disdain towards the victims of the Holocaust and running counter to established historical facts, alleging that the representatives of the “so-called” democratic parties were using the Holocaust to suppress and exploit Germany. It is with reference to this aspect of the applicant’s case that Article 17 of the Convention has an important role to play, regardless of Article 10 being deemed applicable. The Court considers that the applicant 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.48: In the present case, the applicant intentionally stated untruths in order to defame the Jews and the persecution that they had suffered during the Second World War. Reiterating that it has always been sensitive to the historical context of the High Contracting Party concerned when reviewing whether there exists a pressing social need for interference with rights under the Convention and that, in the light of their historical role and experience, States that have experienced the Nazi horrors may be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis76, the Court therefore considers that the applicant’s impugned statements affected the dignity of the Jews to the point that they justified a criminal-law response. Even though the applicant’s sentence of eight months’ imprisonment, suspended on probation, was not insignificant, the Court considers that the domestic authorities adduced relevant and sufficient reasons and did not overstep their margin of appreciation. The interference was therefore proportionate to the legitimate aim pursued and was thus “necessary in a democratic society.”
ECHR Article: Article 10
Decision: Manifestly ill-founded
Use of ‘hate speech’ by the Court in its assessment? No