Application Number 35285/16
European Court of Human Rights
The case concerned Nix’s conviction for posting a picture on his blog in 2014 of the former SS chief, Heinrich Himmler, in SS uniform wearing a swastika armband. In January 2015, the Munich District Court convicted Nix of, among other things, using symbols of unconstitutional organizations after posting the picture of Himmler. The decision was upheld on appeal. The applicant argued that his Article 10 right had been violated. The Court found that his application was manifestly ill-founded.
Theme(s): Totalitarian symbols/Totalitarianism/Internet
Date: 13 March 2018
Description of applicant(s): Citizen
Brief description of facts: The citizen used his blog to record the experience of his German-Nepalese daughter with the Employment Office. The applicant, through his blog posts, wanted to contribute to a debate of public interest, namely, issues faced by children of persons receiving social welfare and children with a migrant background being discriminated against in school and by employment offices (on which there was an ongoing debate).
In one of the blog posts he used an image of Himmler wearing a swastika.
(Alleged) target(s) of speech: Not specifically stated in the judgment
The Court’s assessment of impugned speech: The Court found that, due to the particular historical context of Germany, the banning of symbols and imagery related to the Nazis was legitimate. In this case, the applicant had used a historic picture of Himmler wearing a swastika within the framework of blog posts he wrote regarding his daughter’s experience with the employment office. The Court noted that the applicant did not intend to spread totalitarian propaganda, incite violence, or utter hate speech, and that his expression had not resulted in intimidation, but, instead, was used for purposes of the blog posts which did possibly contribute to public debate. However, the Court concluded that this was a ‘gratuitous use of symbols’ which the national law sought to prohibit.
Important paragraphs from the judgment:
Para. 47: In the light of their historical role and experience, States which have experienced the Nazi horrors may be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis. The Court considers that 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 (also taking into account the perception of foreign observers), and to prevent the revival of Nazism must be seen against this background.
Para. 49. Turning to the circumstances of the applicant’s conviction, the Court observes that the symbol used by the applicant – a picture of Heinrich Himmler in SS uniform with a swastika armband – cannot be considered to have any other meaning than that of Nazi ideology.
Para. 51. The Court accepts that the applicant, by displaying the picture of Himmler in SS uniform with a swastika armband in his blog post, did not intend to spread totalitarian propaganda, to incite violence, or to utter hate speech, and that his expression had not resulted in intimidation. It acknowledges that there have been various press reports detailing complaints that children of persons receiving social welfare and children with a migrant background are discriminated against in school and by employment offices. The applicant, through his series of six blog posts may have intended to contribute to a debate of public interest.
Para. 52. Thus, the question arises whether the domestic courts would have been required to examine the blog post of 23 March 2014, which led to the applicant’s conviction, together with his other blog posts concerning the interaction between the employment office and his daughter. The Court observes that the post in question, which was the third on that matter, did not contain any reference or visible link to the applicant’s earlier posts. It was not immediately understandable for a reader of the post that it was part, or meant to be part, of a series of posts that may have been intended to contribute to a public debate. The domestic courts cannot 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.
Para. 54. The Court notes that this gratuitous use of symbols was exactly what the provision sanctioning the use of symbols of unconstitutional organisations was intended to prevent, as it was meant to pre-empt anyone becoming used to certain symbols by banning them from all means of communication. The case-law of the domestic court is clear in so far as the critical use of Nazi symbols is not sufficient to exempt a person from criminal liability for such use. Rather, a clear and obvious opposition to Nazi ideology is required. Having regard to the circumstances of the case, the Court sees no reason to depart from the assessment of the domestic courts that the applicant did not clearly and obviously reject Nazi ideology in his blog post (see paragraphs 17 and 25 above).
Para. 56. Reiterating that the historical experience of Germany is a weighty factor to be taken into account when determining, when it comes to recourse to symbols.
ECHR Article: Article 10
Decision: Manifestly ill-founded
Use of ‘hate speech’ by the Court in its assessment? Yes:
Para. 51: The Court accepts that the applicant, by displaying the picture of Himmler in SS uniform with a swastika armband in his blog post, did not intend to spread totalitarian propaganda, to incite violence, or to utter hate speech, and that his expression had not resulted in intimidation. It acknowledges that there have been various press reports detailing complaints that children of persons receiving social welfare and children with a migrant background are discriminated against in school and by employment offices (see paragraph 11 above). The applicant, through his series of six blog posts (see paragraphs 4-10 above), may have intended to contribute to a debate of public interest.