Application Number 36773/97
European Commission of Human Rights
The applicant argued that his freedom of expression had been violated after he was sentenced to imprisonment and a fine for statements made in a periodical on which he was head of the editorial staff. The statements minimized and denied the atrocities of the Nazis. The EComHR found that his application was manifestly ill-founded.
Theme(s): Genocide Denial (Holocaust)
Date: 9 September 1998
Description of applicant(s): Head of Editorial Staff
Brief description of facts: The applicant was convicted of National Socialist activities. He received a fine of 240,000 Austrian Schillings (AS) and a sentence of ten months imprisonment on probation. The court found that the applicant, as the head of the editorial staff of the periodical “Aula, Das freiheitliche Magazin,” was responsible for the publication of an article in that periodical entitled “Natural laws apply to Nazis and anti-fascists.” In that article the National Socialist genocide and other National Socialist crimes, according to the court, had been grossly denied and minimized. The court analyzed the statements in details which suggested that the number of the victims of the mass killings, in particular of Jews, by poisonous gas and cremation, was highly exaggerated and technically impossible.
(Alleged) target(s) of speech: Jews
The Commission’s assessment of the impugned speech: The Commission found that the ideas put forth in the publication were not compatible with the Convention. It stated that prohibiting National Socialist ideas were covered by Article 10(2) and then proceeded to note the relevance of Article 17, finding the application manifestly ill-founded. A clear cut distinction between the use of this article is not particularly apparent in this case.
Important paragraph(s) from the judgment:
In this context the Commission refers to its previous case-law in which it has held that “the prohibition against activities involving the expression of National Socialist ideas is both lawful in Austria and, in view of the historical past forming the immediate background of the Convention itself, can be justified as being necessary in a democratic society in the interests of national security and territorial integrity as well as for the prevention of crime. It is therefore covered by Article 10 para. 2 of the Convention”
Moreover, the Commission has already stated earlier that National Socialism is a totalitarian doctrine incompatible with democracy and human rights and that its adherents undoubtedly pursue aims of the kind referred to in Article 17.
ECHR Article: Article 17
Decision: Manifestly ill-founded
Use of ‘hate speech’ by the Commission in its assessment? No