Criminal conviction for posting a photo of Nazi content does not violate freedom of expression
Nix v. Germany 05.04.2018 (no. 35285/16)
Freedom of expression. Posting a photo of an SS leader with his outfit and armband on a blog. Sentence by the German courts. No violation of Article 10 (freedom of expression) of the European Convention, since the criminal conviction constituted an intervention “necessary in a democratic society”
The applicant, Hans Burkhard Nix, is a German national who was born in 1954 and lives in Munich (Germany).
The applicant has a blog on which he writes about various issues concerning economics, politics and society. In March 2014, the employment office sent a letter to his daughter, who is of German-Nepalese origin. It asked the daughter, who was eighteen and scheduled to complete her schooling in the summer of 2015 at the earliest, to complete a questionnaire on whether she intended to continue schooling beyond September 2014, or to commence vocational training or tertiary studies.
In reaction Mr Nix published six posts about his daughter’s dealings with the employment office. In one of his posts, he stated that the background to the letter, written by a staff member at the office, was that that institution intended to push his daughter, in a racist and discriminatory manner, into a low-paid job as cheap labour. Furthermore, he posted a statement with the heading “[Name of the staff member] offers ‘customised’ integration into the low-wage [economy]”. Underneath was a picture of Himmler in SS uniform wearing the Nazi party badge with a swastika on his front pocket and a swastika armband. Mr Nix posted a quote from Himmler about the schooling of children in Eastern Europe during the Nazi occupation next to the picture while below it he addressed the staff member by name and stated that he would proceed to discuss the employment office’s requests.
In January 2015 the Munich District Court convicted Mr Nix of, among other things, using symbols of unconstitutional organisations. On appeal, the Regional Court upheld the conviction. It concluded that he had not clearly distanced himself from Nazi ideology in his blog post, and had used the picture as an eye-catching device. Further appeals were rejected and in December 2015 the Federal Constitutional Court refused to admit his constitutional complaint for examination.
THE DECISION OF THE COURT
The Court held that any interference with the right to freedom of expression had to meet the various requirements of Article 10 § 2, in particular it had to be “necessary in a democratic society”.
It reiterated that there was little scope under Article 10 § 2 of the Convention for restrictions on political expression or on debate on questions of public interest.
In this respect, the Court noted that Germany’s decision to criminalise the use of Nazi symbols had to be seen on the background of its history, although domestic legislation provided for an exemption from liability on various grounds, including if opposition to the ideology in question was clearly stated.
The Court first observed that the symbol used by Mr Nix – Himmler in SS uniform with a swastika armband – could not be considered to have any other meaning than that of Nazi ideology (compare and contrast the cases of Vajnai v. Hungary, no. 33629/06, §§ 52 et seq., ECHR 2008, and Fratanoló v. Hungary, no. 29459/10, § 25, 3 November 2011, concerning the use of the red star). It then held that Mr Nix must have been aware of the legislation in question, not least because he had been convicted for publishing a picture of Chancellor Angela Merkel in Nazi uniform with a swastika armband and a painted Hitler moustache some six weeks before he had published the blog post at issue.
The Court accepted that Mr Nix had not intended to spread Nazi ideology and might have thought he was contributing to a debate of public interest so the question arose whether the domestic courts should have examined the blog post in question together with his other posts on the employment office and his daughter. The post however did not contain any reference or visible link to the earlier posts and it had not been immediately understandable for a reader that it was part of a series of entries. Furthermore, Mr Nix had made no reference to his daughter’s German-Nepalese origin or the fact that he himself received social welfare benefits. It had not been clear why the request from the employment office staff member could be compared to what had happened in the Nazi regime.
The Court held that the domestic courts could therefore not be reproached for concluding that Mr Nix had used the picture of Himmler with the swastika as an “eye-catching” device, which was one of the things the law penalising the use of symbols of unconstitutional organisations had been intended to prevent (the so-called “communicative taboo”). Domestic case-law was clear that the critical use of such symbols was not enough to exempt someone from criminal liability and that what was required was clear and obvious opposition to Nazi ideology.
The Court saw no reason to depart from the domestic courts’ assessment that Mr Nix had not clearly and obviously rejected Nazi ideology in his blog post. The domestic authorities had given relevant and sufficient reasons for interfering with his right to freedom of expression and had not exceeded their margin of appreciation. The interference with his rights under Article 10 had therefore been “necessary in a democratic society” and the complaint had to be rejected as inadmissible because it was manifestly ill-founded(echrcaselaw.com editing).