Last Updated on November 2, 2019 by LawEuro
Information Note on the Court’s case-law 217
April 2018
Nix v. Germany (dec.) – 35285/16
Decision 13.3.2018 [Section V]
Article 10
Article 10-1
Freedom of expression
Conviction of blogger for publishing post using unconstitutional (Nazi) symbol: inadmissible
Facts – The applicant is a blogger who produced a series of six posts complaining of what he considered to be the Employment Agency’s racist and discriminatory interaction with his eighteen-year-old daughter (who was of German-Nepalese origin) regarding her professional development.
His third post contained a statement accompanied by a picture of the former SS chief Heinrich Himmler, showing him in SS uniform, with the badge of the Nazi party (including a swastika) on his front pocket, and wearing a swastika armband. Next to the picture the applicant posted a quote of Himmler concerning the schooling of children in Eastern Europe during the occupation by Nazi Germany to the effect that parents who wanted to offer their children good education had to submit a request to the SS and the police leadership.
Criminal proceedings were instituted against the applicant with the domestic court convicting him of the offences of libel and using symbols of unconstitutional organisations because of the picture displayed in the blog post. The applicant’s appeals were dismissed.
In the Convention proceedings, the applicant complained under Article 10 of the Convention about his criminal conviction for the blog post.
Law – Article 10: The applicant’s conviction amounted to an interference with his right to freedom of expression. The interference was prescribed by law and pursued the legitimate aim of preventing disorder.
As to whether the interference had been necessary in a democratic society, in light of the historical context, States which experienced the Nazi horrors could be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated. The legislature’s choice to criminally sanction the use of Nazi symbols, to ban the use of such symbols from German political life, to maintain political peace and to prevent the revival of Nazism was seen against this background.
No criminal liability arose where the use of such symbols was meant to serve civil education, to combat unconstitutional movements, to promote art or science, research or teaching, to report on current or historical events, or serve similar purposes. In addition, the exemption from criminal liability where opposition to the ideology embodied by the used symbols was “obvious and clear” constituted an important safeguard for the right to freedom of expression.
The symbol used by the applicant could not be considered to have any other meaning than that of Nazi ideology. The Court accepted that the applicant did not intend to spread totalitarian propaganda, to incite violence, or to utter hate speech, that his expression had not resulted in intimidation and he may have intended to contribute to a debate of public interest. However, in the absence of any reference or visible link to the applicant’s earlier posts, it was not immediately understandable to readers that the impugned post was in fact part of a series concerning the interaction between the employment office and the applicant’s daughter. Nor was there a single phrase referring to racism or discrimination. Therefore, the domestic courts could not be faulted for having considered only the specific utterance that was evident to the reader, that is the picture of Himmler in SS uniform with a swastika armband, the quoted statement, and the text written underneath, when assessing the applicant’s criminal liability or for finding that there was no connection between the text and the policies which the Nazi symbols stood for.
This gratuitous use of symbols was exactly what the provision sanctioning the use of symbols of unconstitutional organisations was intended to prevent, to pre-empt anyone becoming used to certain symbols by banning them from all means of communication. The Court saw no reason to depart from the domestic courts’ assessment that the applicant did not clearly and obviously reject Nazi ideology in his blog post.
The domestic authorities had thus adduced relevant and sufficient reasons and had not overstepped their margin of appreciation. The interference had therefore been proportionate to the legitimate aim pursued and was thus “necessary in a democratic society”.
Conclusion: inadmissible (manifestly ill-founded).
(See also the Factsheet on Hate speech)
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