Application Number 7485/03
European Commission of Human Rights
The applicant sent a letter to a professor following an article the latter published regarding the culpability of the Nazi Party and the intention of Hitler to murder the Jews. The applicant wrote a letter to him saying that these statements were false and was subsequently convicted with disparaging the memory of the dead and received a prison sentence. Relying on Article 17, the ECtHR held that his speech could not receive Convention protection.
Theme(s): Genocide Denial (Holocaust)
Date: 13 December 2005
Description of applicant(s): Citizen
Brief description of facts: In an article published in a German weekly review, a well-known historian, Professor Wolffson made inter alia the following statements:
“(…) Hitler wanted the murder of the Jews. He ordered it and certainly knew about it. Although he had not given a written order, there is evidence that he had given oral orders on several occasions. The murder of the Jews was wanted and organised from above and by NS-activists from the bottom (…).”
A few months later, the applicant wrote to Professor Wolffson in reply to this article, stating, inter alia:
“(…) Your statements which are false and historically unsustainable shall not stand unanswered (…).
It is actually established that there is no indication in party programs of the National Socialist German Workers’ Party, the NSDAP (Nationalsozialistische Deutsche Arbeiterpartei), that the NSDAP and Hitler intended to murder the Jews.
The Professor submitted the letter to the police. The applicant was convicted of disparaging the dignity of the deceased and sentenced to three months’ imprisonment.
(Alleged) target(s) of speech: Jews
The Court’s assessment of the impugned speech: The Court found that the statements made by the applicant run counter to the Convention and, therefore, he cannot, in accordance with Article 17 rely on the provisions of Article 10.
Important paragraph(s) from the judgment:
As regards the circumstances of the present case, the Court notes that the applicant denied neither the Holocaust as such nor the existence of gas chambers. However, he denied an equally significant and established circumstance of the Holocaust considering it false and historically unsustainable that Hitler and the NSDAP had planned, initiated and organised the mass killing of Jews. The applicant’s statement that the opinion expressed by W. was part of the war propaganda and after-war atrocity propaganda combined with the denial of Hitler’s and the national Socialists’ responsibility in the extermination of the Jews showed the applicant’s disdain towards the victims of the Holocaust.
ECHR Article: Article 17
Decision: Incompatible ratione materiae
Use of ‘hate speech’ by the Court in its assessment? No