Prohibition of abuse of rights<\/strong><\/p>\nCriminal conviction of member of parliament for statements made in Parliament found to constitute Holocaust denial: inadmissible<\/p>\n
Facts \u2013 The applicant was a member of parliament and chairperson of the National Democratic Party of Germany in the Land Parliament of Mecklenburg-Western Pomerania. He was convicted at first instance of violating the memory of the dead and of defamation following statements he had made in a speech to Parliament. The Regional Court, sitting at second instance, dismissed the applicant\u2019s appeal on points of fact and law as ill-founded, having established the circumstances of the case anew. The applicant lodged an appeal with the Court of Appeal. After learning that one of the three judges responsible for adjudicating his appeal was married to one of the judges who had decided his case at first instance, he lodged a complaint of bias. The Court of Appeal, with the participation of the impugned judge, dismissed the bias complaint and his appeal on points of fact and law as ill-founded. A subsequent panel of the Court of Appeal dismissed his bias complaint.<\/p>\n
Law<\/p>\n
Article 10: In cases concerning Holocaust denial, whether the Court applied Article 17 directly, declaring a complaint incompatible ratione materiae, or instead found Article 10 applicable, invoking Article 17 at a later stage when it examined the necessity of the alleged interference, was a decision taken on a case-by-case basis and would depend on all the circumstances of each individual case.<\/p>\n
In the applicant\u2019s case, on the one hand, his statements had shown his disdain towards the victims of the Holocaust, which spoke in favour of the incompatibility ratione materiae of the complaint with the provisions of the Convention. On the other hand, the statements had been made by a member of parliament during a parliamentary session, such that it could warrant an elevated level of protection and any interference with it would warrant the closest scrutiny on the part of the Court.<\/p>\n
The Regional Court had cited and assessed the applicant\u2019s speech in full. The gist of its reasoning was threefold: the applicant had inserted the qualified Holocaust denial into his speech, large parts of which had not raised an issue under criminal law, as if inserting \u201cpoison into a glass of water, hoping that it would not be detected immediately\u201d; the parts of his speech that had not raised an issue under criminal law could not mitigate, conceal or whitewash the qualified Holocaust denial; and he had wanted to convey his message exactly in the way that it had been understood by the Regional Court, in the view of an objective observer.<\/p>\n
The Court attached fundamental importance to the fact that the applicant had planned his speech in advance, deliberately choosing his words and resorting to obfuscation to get his message across. It was with reference to that aspect of the applicant\u2019s case that Article 17 had an important role to play, regardless of Article 10 being deemed applicable. The applicant had sought to use his right to freedom of expression with the aim of promoting ideas contrary to the text and spirit of the Convention. That weighed heavily in the assessment of the necessity of the interference.<\/p>\n
While interferences with the right to freedom of expression called for the closest scrutiny when they concerned statements made by elected representatives in Parliament, utterances in such scenarios deserved little, if any, protection if their content was at odds with the democratic values of the Convention system. The exercise of freedom of expression, even in Parliament, carried with it the \u201cduties and responsibilities\u201d referred to in Article 10 \u00a7\u00a02. Parliamentary immunity offered, in that context, enhanced, but not unlimited, protection to speech in Parliament.<\/p>\n
The applicant had intentionally stated untruths in order to defame the Jews and the persecution that they had suffered during the Second World War. The applicant\u2019s impugned statements had affected the dignity of the Jews to the point that they had justified a criminal-law response. Even though the applicant\u2019s sentence of eight months\u2019 imprisonment, suspended on probation, was not insignificant, the domestic authorities had 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 \u201cnecessary in a democratic society\u201d. There was no appearance of a violation of Article\u00a010.<\/p>\n
Conclusion: inadmissible (manifestly ill-founded).<\/p>\n
Article 6 \u00a7 1: The fact that two judges had been married and had dealt with the applicant\u2019s case at different levels of jurisdiction could give rise to doubts as to impartiality.<\/p>\n
As regards the procedure for ensuring impartiality, the Court of Appeal, with the participation of the impugned judge, had decided on both the applicant\u2019s complaint of bias and on his appeal on points of law. The default approach under domestic law would have been for the complaint of bias to have been decided without the judge\u2019s participation. However domestic law provided an exception. While it was not for the Court to interpret domestic law, it was difficult to understand how the applicant\u2019s bias complaint could have been deemed \u201ccompletely ill-suited\u201d, as required by that exception. The applicant\u2019s complaint of bias could not be considered as abusive or irrelevant as there could have been an appearance of lack of impartiality. The judge\u2019s participation in the decision on the bias complaint against him had not helped dissipate what doubts there may have been.<\/p>\n
The Court had previously found that a lack of impartiality in criminal proceedings had not been remedied in cases where a higher court had not quashed the lower court\u2019s judgment adopted by a judge or tribunal lacking impartiality. Unlike in the applicant\u2019s case, where the objective justification of the applicant\u2019s doubt in respect of the judges dealing with his appeal on points of law had primarily resulted from the procedure they had chosen, the impartiality defects in earlier cases had either been more severe or the subsequent decisions had not given substantive arguments in response to the applicant\u2019s complaint of bias, thus not remedying the defect.<\/p>\n
In the applicant\u2019s case the subsequent review decision had not been rendered by a higher court, but rather by a bench of three judges of the same court who had not been involved in any previous decisions in the applicant\u2019s case. The review decision had not entailed a full assessment of either the applicant\u2019s appeal on points of law or the decision dismissing it as ill-founded, but had been limited to the question of whether the judges involved in that decision had been biased. However, if the review decision had been rendered in the applicant\u2019s favour, the applicant\u2019s motion to be heard would subsequently have had to have been adjudicated by other judges. It had thus been submitted to a subsequent control of a judicial body with sufficient jurisdiction and offering the guarantees of Article\u00a06.<\/p>\n
Lastly, the applicant had not given any concrete arguments why a professional judge \u2013 being married to another professional judge \u2013 should be biased when deciding on the same case at a different level of jurisdiction which did not entail review of the spouse\u2019s decision. The Court of Appeal had given sufficient arguments in response to the applicant\u2019s submissions. The participation of the judge in the decision on the bias complaint against him had been remedied by the subsequent assessment, on the merits, of the bias complaint, for which the applicant had advanced the same ground, by a separate panel of judges of the same court. There had not been objectively justified doubts as to the Court of Appeal\u2019s impartiality.<\/p>\n
Conclusion: no violation (four votes to three).<\/p>\n
(See also Perin\u00e7ek v. Switzerland [GC], 27510\/08, 15 October 2015, Information Note 189; Williamson v. Germany (dec.), 64496\/17, 8 January 2019; Roj TV A\/S v. Denmark (dec.), 24683\/14, 17 April 2018, Information Note 218; Kar\u00e1csony and Others v. Hungary [GC], 42461\/13 and 44357\/13, 17\u00a0May 2016, Information Note 196; Vera Fern\u00e1ndez-Huidobro v. Spain, 74181\/01, 6 January 2010, Information Note 126; Crompton v. the United Kingdom, 42509\/05, 27 October 2009; and compare A.K. v. Liechtenstein, 38191\/12, 9 July 2015)<\/p>\n