Published: 30 Jan 2020 | By Başak Küçük
Pastörs v Germany
Case No.: 55225/14
Judgment date: 3 October 2019
In January 2010, the applicant (a Member of Parliament and chairperson of the National Democratic Party of Germany) made a speech during a Parliamentary session stating, inter alia, that “the so called Holocaust is being used for political and commercial purposes . . . since 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”, and referring to an event marking Holocaust Remembrance Day as the “imposing your Auschwitz projections” which sought to achieve the triumph of lies over truth”. In August 2012, he was convicted by the Schwerin District Court for violating the memory of the dead, and for intentional defamation of the Jewish people, through his comments. In March 2013, the Schwerin Regional Court dismissed his appeal against the conviction as ill-founded. After reviewing the speech in full, the Regional Court found that the applicant had used terms that amounted to “denying the systematic, racially motivated, mass extermination of the Jews carried out at Auschwitz during the Third Reich”. The Regional Court found that the applicant’s statements constituted defamation under Article 187 of the Criminal Code and violated the memory of victims under Article 189 of the Criminal Code. The victims of the offence were those Jewish people who had been persecuted by the Nazis because of their religion and ethnicity.
The Regional Court stated that the applicant could not rely on his free speech rights in respect to Holocaust denial. Moreover, the Parliament of Mecklenburg-Western Pomerania had separately revoked his inviolability from prosecution as a Member of Parliament. In 2014, the applicant lodged an appeal on points of law with the Rostock Court of Appeal. He subsequently alleged, on two separate occasions, that the proceedings in the Court of Appeal were biased because one of the judges on the Court of Appeal panel was married to the judge who had convicted him in the first instance, and therefore could not be impartial. Both the complaints of bias and the appeal on a point of law were dismissed. The second complaint of bias was separately reviewed and dismissed by three judges who had not had any previous involvement in the case. Shortly thereafter, the Federal Constitutional Court declined to accept the applicant’s constitutional complaint for adjudication.
Before the European Court, the applicant claimed that his criminal conviction had breached his right to freedom of expression (Art. 10 of the European Convention on Human Rights) and that the Rostock Court of Appeal lacked impartiality in breach of right to a fair trial (Art. 6 of the ECHR).
Referring to the Government’s argument that the applicant could not, under Art. 17 ECHR, rely on Art.10, the Court confirmed that the decisive point is whether the statements in question are “directed against the Convention’s underlying values, for example, by stirring up hatred or violence”.
Applying Art. 10, although the conviction did constitute an interference with the applicant’s Art. 10 rights, the Court found that the interference (1) was prescribed by law (under the German Criminal Code and in light of the domestic court’s findings), (2) pursued a legitimate aim (protecting the reputation and rights of others), and (3) was necessary in a democratic society. The Court therefore concluded unanimously that the applicant’s complaint under Art 10 was manifestly ill-founded and was inadmissible (under Art 35(3)(a) and 4 ECHR)In support of this finding, the Court relied on, inter alia, its conclusion that the applicant’s statements constituted a “qualified Holocaust denial” showing “his disdain for the victims of the Holocaust”, and that he had sought to use his rights under Art 10 in order to “promote ideas contrary to the text and spirit of the Convention”. On this last point, the Court drew on its comments under Art. 17, emphasising that the applicant had sought to use his right to freedom of expression to promote ideas contrary to the text and spirit of the ECHR, and had planned his speech in advance, and had chosen his words deliberately. The Court held that, although interferences over statements made in Parliament must be closely scrutinised, they deserve little, if any, protection if their content is at odds with the democratic values of the ECHR system.
The Court also found by four votes to three that there had been no violation of Art. 6(1) (right to a fair trial). Even though the involvement in the case of two judges who were married (at levels of jurisdiction which were not consecutive) might have raised doubts about impartiality, the impartial review of the second complaint of bias had resolved these issues.
Previous Holocaust denial cases before the Court were based on statements made in various media, including a book (Garaudy v. France, No. 65831/01, 24.06.2003), a TV show (Williamson v. Germany, No. 64496/17, 8.1.2019) and a comedy sketch M’Bala M’Bala v. France, No. 25239/13, 20.10.2015). All these cases are related to the denial of the Holocaust or some aspects of common knowledge on the Holocaust or promoting such denial. The Court categorises the Holocaust as a “clearly established historical fact”. Attempts to undermine or dispute aspects of the Holocaust are considered to be racially defamatory, incitement to hatred and correspondingly racist and anti-Semitic, contrary to the standards and spirit of the ECHR.
In its case law, the Court has consistently underlined the particular importance of freedom of expression for members of parliament, this being political speech. States have very limited room in regulating the content of parliamentary speech given the generally recognised rule of parliamentary immunity. However, some regulation may be considered necessary in order to prevent forms of expression, such as direct or indirect calls for violence. The decisive point for the Court when assessing whether statements are given protection under Art 10 is whether they are directed against the Convention’s underlying values, such as constituting Holocaust denial, as in this case