Photo by Alexey Soucho on Unsplash
To deny that the Holocaust ever happened (i.e. the murder of 6 million Jews – at least – by the Nazi regime) is not and never can be a protected human right or a genuinely held philosophical belief.
Such a belief (and its expression) is not protected in terms of Article 10 of the European Convention on Human Rights (which was directly implemented into Scots Law via the Scotland Act 1998 and the Human Rights Act 1998). Article 10 protects the individual’s right to freedom of expression.
Freedom of expression is not an unlimited right and certain forms of expression which constitute, for example, hate speech will not be protected by the European Convention.
The European Court of Human Rights in Strasbourg, France has just issued its ruling in this regard in the case of Pastörs v Germany ECHR 331 (2019).
Pastörs is a former member of the German regional parliament or Land for Mecklenburg-Western Pomerania. He was sat in the parliament for the far right National Democratic Party (NPD). He made an inflammatory speech on 28 January 2010 about the Holocaust using expressions such:
“the so-called Holocaust is being used for political and commercial purposes”.
He also stated during the speech:
“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 speech by Pastörs was particularly insensitive and offensive given that Holocaust Remembrance Day had been commemorated the day previously.
Pastörs was subsequently convicted by a German court of criminal offences i.e. “violating the memory of the dead and of the intentional defamation of the Jewish people”. This conviction was upheld on appeal.
Pastörs then lodged a case to the European Court of Human Rights on the basis that his Article 10 rights and his Article 6 rights (the right to a fair trial) had been violated by the German legal authorities.
The Court has now found that Pastörs’ legal challenge under Article 10 “was manifestly ill-founded and had to be rejected”. On the matter of the allegation that his Article 6 rights had been violated, the judges by 4 votes to 3 rejected this argument.
The judgement can be appealed to the Grand Chamber of the European Court of Human Rights.
If so, it will be interesting to see how the judges respond.
As things stand presently, this judgement confirms that freedom of expression and speech are not unlimited rights.
A photograph of the press release from the ECtHR regarding the Pastörs judgement can be found below:
A link to the actual judgement of the court can be found below:
https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22pastors%22],%22itemid%22:[%22001-196148%22]}
Copyright Seán J Crossan, 8 October 2019
Seán Crossan's Scots Law 