Holocaust denial is not protected by the European Convention on Human Rights
Ιn the case
of Pastörs v. Germany (application no. 55225/14) the European Court of Human
Rights held on 3.10.2019, unanimously, that the applicant’s complaint under Article 10
(freedom of expression) was manifestly ill-founded and had to be rejected, and,
by four votes to three that there had been no violation of Article 6 § 1 (right
to a fair trial) of the European Convention on Human Rights.
The case
concerned the conviction of a Land deputy for denying the Holocaust during a
speech in the regional Parliament. The Court found in particular that the
applicant had intentionally stated untruths to defame Jews. Such statements
could not attract the protection for freedom of speech offered by the
Convention as they ran counter to the values of the Convention itself. There
was thus no appearance of a violation of the applicant’s rights and the
complaint was inadmissible.
The Court
also examined a complaint by the applicant of judicial bias as one of the Court
of Appeal judges who had dealt with his case was the husband of the
first-instance judge. It found no violation of his right to a fair trial
because an independent Court of Appeal panel with no links to either judge had
ultimately decided on the bias claim and had rejected it.
Principal
facts
The
applicant, Udo Pastörs, is a German national who was born in 1952 and lives in
Lübtheen (Germany). On 28 January 2010, the day after Holocaust Remembrance
Day, Mr Pastörs, 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”.
In August
2012 he was convicted by a district court, formed of Judge Y and two lay
judges, of violating the memory of the dead and of the intentional defamation
of the Jewish people. In March 2013 the regional court dismissed his appeal
against the conviction as ill-founded. After reviewing the speech in full, the
court found that Mr Pastörs had used terms which amounted to denying the
systematic, racially motivated, mass extermination of the Jews carried out at
Auschwitz during the Third Reich.
The court
stated he could not rely on his free speech rights in respect of Holocaust
denial. Furthermore, he was no longer entitled to inviolability from
prosecution as the Parliament had revoked it in February 2012 He appealed on
points of law to the Court of Appeal which, in August 2013, also rejected his
case as ill-founded. At that stage he challenged one of the judges adjudicating
his appeal, Judge X, claiming he could not be impartial as he was the husband
of Judge Y, who had convicted him at first instance.
A
three-member bench of the Court of Appeal, including Judge X, dismissed the
complaint, finding in particular that the fact that X and Y were married could
not in itself lead to a fear of bias. Mr Pastörs renewed his complaint of bias
against Judge X before the Court of Appeal, adding the other two judges on the
bench to his claim. In November 2013 a new three-judge Court of Appeal panel,
which had not been involved in any of the previous decisions, rejected his
complaint on the merits. Lastly, the Federal Constitutional Court declined his
constitutional complaint in June 2014.
Complaints,
procedure and composition of the Court
Relying on
Article 10 (freedom of expression) and Article 6 § 1 (right to a fair trial),
Mr Pastörs complained about his conviction for the statements he had made in
Parliament and alleged that the proceedings against him were unfair because one
of the judges on the Court of Appeal panel was married to the judge who had
convicted him at first instance and could therefore not be impartial. The
application was lodged with the European Court of Human Rights on 30 July 2014
Decision of
the Court
Article 10
(freedom of Expression)
As with
earlier cases involving Holocaust denial or statements relating to Nazi crimes,
the Court examined Mr Pastörs’ complaint under both Article 10 and Article 17
(prohibition of abuse of rights). It reiterated that Article 17 was only
applicable on an exceptional basis and was to be resorted to in cases
concerning freedom of speech if it was clear that the statements in question
had aimed to use that provision’s protection for ends that were clearly
contrary to the Convention.
The Court
noted that the domestic courts had performed a thorough examination of Mr
Pastörs’ utterances and it agreed with their assessment of the facts. It could
not accept, in particular, his assertion that the courts had wrongfully
selected a small part of his speech for review. In fact, they had looked at the
speech in full and had found much of it did not raise an issue under criminal
law.
However,
those other statements had not been able to conceal or whitewash his qualified
Holocaust denial, with the Regional Court stating that the impugned part had
been inserted into the speech like “poison into a glass of water, hoping that
it would not be detected immediately”.
The Court
placed emphasis on the fact that the applicant had planned his speech in
advance, deliberately choosing his words and resorting to obfuscation to get
his message across, which was a qualified Holocaust denial showing disdain to
its victims and running counter to established historical facts. It was in this
context that Article 17 came into play as the applicant had sought to use his
right to freedom of expression to promote ideas that were contrary to the text
and spirit of the Convention.
Furthermore,
while an interference with freedom of speech over statements made in a
Parliament deserved close scrutiny, such utterances deserved little if any
protection if their context was at odds with the democratic values of the
Convention system. Summing up, the Court held that Mr Pastörs had intentionally
stated untruths in order to defame the Jews and the persecution that they had
suffered. The interference with his rights also had to be examined in the
context of the special moral responsibility of States which had experienced
Nazi horrors to distance themselves from the mass atrocities. The response by
the courts, the conviction, had therefore been proportionate to the aim pursued
and had been “necessary in a democratic society”.
The Court
found there was no appearance of a violation of Article 10 and rejected the
complaint as manifestly ill-founded.
Article 6 §
1 (right to a fair trial)
The Court
reiterated its subjective and objective tests for a court or judge’s lack of
impartiality: the first focused on a judge’s personal convictions or behaviour
while the second looked at whether there were ascertainable facts which could
raise doubts about impartiality. Such facts could include links between a judge
and people involved in the proceedings. It held that the involvement in the
case of two judges who were married, even at levels of jurisdiction which were
not consecutive, might have raised doubts about Judge X lacking impartiality.
It was also
difficult to understand how the applicant’s complaint of bias could have been
deemed as inadmissible in the Court of Appeal’s first review, which had
included Judge X himself. However, the issue had been remedied by the review of
Mr Pastörs’ second bias complaint, which had been aimed at all the members of
the initial Court of Appeal panel and had been dealt with by three judges who
had not had any previous involvement in the case. Nor had the applicant made
any concrete arguments as to why a professional judge married to another
professional judge should be biased when deciding on the same case at a
different level of jurisdiction. There were thus no objectively justified
doubts about the Court of Appeal’s impartiality and there had been no violation
of Article 6. (
Read the Decision here
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