Holocaust denial in a parliamentary speech: criminal conviction not a breach of Article 10
11 October 2019
On 3 October 2019 the European Court of Human Rights dismissed an application by former NDP leader Udo Pastörs that his criminal conviction in Germany for making a “qualified Auschwitz denial” in a parliamentary speech infringed his right to freedom of speech under Article 10 ECHR. 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.
Previous Holocaust denial cases before the European Court have arisen from statements made in various media, including a book (Garaudy -v- France (dec.), no. 65831/01, 24 June 2003), a TV show (Williamson -v- Germany, no. 64496/17, 8 January 2019) and even as part of a comedy routine (M’Bala M’Bala -v- France, no. 25239/13, 20 October 2015). This time the Court was called upon to consider statements made in a parliamentary context. The case involves ultra-right wing nationalist politics, parliamentary immunity from prosecution, the parliament’s ability to self-regulate that immunity, and the courts as final arbiters of such disputes. Although the statements concerned were made back in 2010, 9 years later the case still feels very topical.
Background facts and law
The National Democratic Party of Germany (NDP) is an extreme right-wing nationalist political party. In January 2010, Udo Pastörs was a representative member of the NDP in the Land Parliament of Mecklenburg-Western Pomerania (the “MWP Parliament”). On 28 January 2010, the day after a parliamentary event to commemorate Holocaust Memorial Day, Mr Pastörs gave a speech in the MWP Parliament. His speech included the following passage (emphasis added):
With the exception of the groups whose cooperation you have bought, hardly anyone is truly, emotionally taking part in your theatrical display of concern. And why is that? Because people can sense 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, ladies and gentlemen. Also, the event that you organised here in the castle yesterday was nothing more than you imposing your Auschwitz projections onto the German people in a manner that is both cunning and brutal. You are hoping, ladies and gentlemen, for the triumph of lies over truth.
The court of first instance in Germany concluded that Mr Pastörs had, by this passage, denied in a qualified manner the systematic mass extermination of Holocaust victims carried out at Auschwitz during the Third Reich (qualifizierte Auschwitzleugnung – “qualified Auschwitz denial”). The court assessed the passage linguistically and in the context of the speech as a whole. The proximity of the terms “lie” and “projection” in close succession were found to have the same intended meaning. The court said that the speech had been drafted in such a way so as to include the Auschwitz denial “as if inserting poison into a glass of water, hoping that it would not be detected immediately”.
Pastörs was found guilty under Articles 187 and 189 of the German Criminal Code of: (1) defamation of victims of the Holocaust and (2) violation of the memory of the dead.
Article 24 of the Constitution of the MWP Parliament grants immunity from prosecution for statements made in the Parliament. However, the immunity is expressly excludes statements which are intentionally defamatory. Parliamentary representatives can therefore be criminally prosecuted for defamation, provided the Parliament gives its permission – which in this case it did, on 1 February 2019. Pastörs was given a suspended prison sentence of 8 months, upheld on appeal.
Article 17 and Article 10 ECHR: a wholly incompatible claim, or a justified interference?
Pastörs argued that his conviction was an unlawful violation of his Article 10 rights to freedom of expression. The German government argued that under Article 17 ECHR, Pastörs’ application itself was incompatible rationae materiae with the very principles of the ECHR. In the alternative, Germany argued that the conviction constituted a justified interference with Pastörs’ rights, pursuant to Article 10(2).
The European Court found in favour of the German government on the basis of Article 10(2). It said that the application of Article 17 was something to be considered on a case-by-case basis. In this case, Pastörs’ statement showed a disdain for the victims of the Holocaust which spoke in favour of a finding of incompatibility. On the other hand, the freedom of expression of members of parliament was of particular importance and any interference called for the closest scrutiny of the Court. The Court therefore applied Article 10(2), using Article 17 as an aid in interpretation to reinforce the necessity of the interference.
Applying Article 10(2): although the conviction did constitute an interference with Pastörs’ Article 10 rights, the interference (1) was prescribed by law (under the German Criminal Code), (2) pursued a legitimate aim (protecting the reputation and rights of others), and (3) was necessary in a democratic society. On this last point, the Court engaged Article 17. It emphasised that Pastörs had planned his speech in advance, had chosen certain words deliberately, and had resorted to obfuscation to get his message across. He had sought to use his right to freedom of expression to promote ideas contrary to the text and spirit of the ECHR. 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.
Judicial impartiality – Article 6
Pastörs’ application to the European Court also raised a second complaint: that his right to a fair trial under Article 6 ECHR had been violated due the lack of impartiality of one of the judges in the third-instance German appellate court (“judge X”), who was married to the first-instance judge who had initially heard the case. Judge X had also been part of the panel which heard a bias complaint against him. The European Court was split on this issue. It ruled (by four judges to three) that there was no violation of Article 6, because the bias complaint had subsequently been assessed by a separate panel of judges. However, three judges dissented, saying that the review by the separate panel of judges was not sufficient to remedy any apparent bias: it had dealt only with the bias complaint and not the merits of Pastörs’ appeal. The dissenting judges emphasised that “justice must not only be done, it must also be seen to be done”, and that any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw.
Joanna Curtis is a solicitor and one of the UK Human Rights Blog’s new contributors on Strasbourg cases.