Hans Bernard Nix v Germany, Application No. 35285/16
Court: European Court of Human Rights, Fifth Section
Date: 5 April 2018
On 5 April 2018, the European Court of Human Rights (ECtHR) dismissed a complaint that prosecution for the display of Nazi symbols on a blog post violated the right to freedom of expression under article 10 of the European Convention on Human Rights (European Convention).
The applicant, Mr Nix, is a German national living in Munich. Mr Nix has a blog on which he writes about matters concerning economics, politics and society. Through a series of posts on his blog, Mr Nix outlined an exchange between his daughter and a staff member of the local branch of the Federal Employment Agency, in which Mr Nix’s daughter had been asked to submit her latest school report and to complete a questionnaire to indicate whether she intended to begin vocational training or tertiary studies.
In one of the blog posts, Mr Nix used a picture of Heinrich Himmler – one of the leaders of the Nazi Party under Adolf Hitler – showing him in SS uniform, with the badge of the Nazi party (including a swastika) on his front pocket, and wearing a swastika armband. Next to the picture, the applicant posted a quote of Himmler concerning the schooling of children in Eastern Europe during the occupation by Nazi Germany to the effect that parents who wanted to offer their children a good education had to submit a request to the SS and the police leadership. The applicant indicated the sources for both the quotation and the picture.
In October 2014, the Munich prosecution authorities instituted criminal proceedings against Mr Nix, charging him with the offence of using symbols of unconstitutional organisations. Mr Nix had also previously been convicted of the same offence, having published a picture of German Chancellor, Angela Merkel, in Nazi uniform with a swastika armband and a painted Hitler‑moustache.
In January 2015, Mr Nix was convicted by the Munich District Court, and sentenced to four months’ imprisonment for using symbols for unconstitutional organisations and 70-day fines of €15 (EUR) each for libel, resulting in a cumulative sentence of five months’ imprisonment. The sentence was suspended. In May 2015, the Munich Regional Court rejected Mr Nix’s appeal against his conviction, but reduced the sentence. The Regional Court noted that Mr Nix had used the image as an eye-catching device, which was exactly what the provision sanctioning the use of symbols of unconstitutional organisations was intended to prevent. In August 2015, the Munich Court of Appeal rejected Mr Nix’s appeal on points of law, and endorsed the reasoning of the Regional Court. In December 2015, the Federal Constitutional Court of Germany refused to admit Mr Nix’s constitutional complaint, finding it to be inadmissible.
Before the ECtHR, Mr Nix argued that his criminal conviction for the offence of using the symbols of unconstitutional organisation in his blog post violated his right to freedom of expression under article 10 of the European Convention.
While recognising that there is little scope for restrictions on political expression or debate on questions of public interest, the ECtHR further noted the need to be sensitive to historic context. The German Criminal Code provides that liability will not be incurred if such symbols are used to serve civil education, to combat unconstitutional movements, to promote art or science, research or teaching, to report on current or historical events, or serve similar purposes. The ECtHR noted that, in the present case, Mr Nix’s use of the image did not have any meaning other than that of Nazi ideology, although it accepted that he did not intend to spread totalitarian propaganda, incite violence or utter hate speech, that his expression had not resulted in intimidation, and that he may have intended to contribute to public debate.
In reaching its conclusion, the ECtHR took into consideration that the blog post in question did not link to any of the other blog posts to explain that it was part of a series or the broader context. 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 such as those at issue in the present case, whether there exists a pressing social need for interfering with an applicant’s right to freedom of expression”, the ECtHR declared the complaint inadmissible.
The full judgment is accessible here.
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