Pastörs v. Germany

Holocaust Denial is Not Speech Protected by the European Convention on Human Rights

1. This case originated in an application (no. 55225/14) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Udo Pastörs (“the applicant”), on 30 July 2014.

2. The applicant, who was born in 1952 and lives in Lübtheen, was represented by Mr P. Richter, a lawyer practising in Saarbrücken. The German Government (“the Government”) were represented by one their Agents, Mr H.-J. Behrens, of the Federal Ministry of Justice and Consumer Protection.

3. The applicant alleged that his criminal conviction for statements that he had made on 28 January 2010 had breached his right to freedom of expression, as guaranteed by Article 10 of the Convention. Relying on Article 6 § 1 of the Convention, he furthermore complained that the Court of Appeal had lacked impartiality in the light of the involvement of judge X.

4. On 1 September 2016 notice of the application was given to the Government.

THE FACTS
I. THE CIRCUMSTANCES OF THE CASE

A. Background to the case

5. The applicant was a Member of Parliament and chairperson of the National Democratic Party of Germany (NPD) in the Land Parliament of Mecklenburg-Western Pomerania. On 27 January 2010, Holocaust Remembrance Day, a memorial event was held in the Land Parliament. The members of the NPD Parliamentary group, including the applicant, did not attend. The following day, the applicant gave a speech in Parliament on the subject listed in the day’s agenda as: “In memory of the victims of the worst disaster in German maritime history – Commemoration of those who died on the [military transport ship] Wilhelm Gustloff”. During that speech, the applicant uttered, inter alia, the following:

“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.”

(“... Bis auf die von Ihnen gekauften Grüppchen und Gruppierungen nimmt kaum noch jemand wirklich innerlich bewegt Anteil an dem Betroffenheitstheater. Und warum ist das so? Weil die Menschen spüren, dass der sogenannte Holocaust politischen und kommerziellen Zwecken dienbar gemacht wird ... Die Deutschen sind seit Ende des Zweiten Weltkrieges einem ununterbrochenen Trommelfeuer von Vorwürfen und Propagandalügen ausgesetzt, deren Bewirtschaftung in verlogener Art und Weise in erster Linie von Vertretern der sogenannten demokratischen Parteien bewirtschaftet wird, meine Herrschaften. Auch was Sie gestern hier im Schloss wieder veranstaltet haben, war nichts anderes, als dem deutschen Volk ebenso raffiniert wie brutal ihre Auschwitzprojektionen überzustülpen. Sie, meine Damen und Herren, hoffen auf den Sieg der Lüge über die Wahrheit. ...”)

6. The Parliament of the Land of Mecklenburg-Western Pomerania revoked the applicant’s inviolability from prosecution (see paragraph 29 below) on 1 February 2012.

B. The proceedings at issue

7. On 16 August 2012 the Schwerin District Court, sitting as a bench of the presiding professional judge Y and two lay judges, convicted the applicant of violating the memory of the dead and of defamation (see paragraph 28 below) through the utterances cited above; the court sentenced him to eight months’ imprisonment, suspended on probation.

8. The applicant appealed on points of fact and law. In respect of that appeal the Schwerin Regional Court held a main hearing on 25 March 2013, which included the taking of evidence. The applicant did not comment on the charges against him. In its judgment of the same day, the court dismissed the applicant’s appeal as ill-founded.

9. In its judgment, the Regional Court cited the applicant’s speech in its entirety, highlighting the excerpts quoted above, which it considered relevant to an assessment of the applicant’s criminal liability. It considered that the applicant’s above-cited utterance, viewed objectively, had had the following content:

“The applicant asserted that the extermination of the Jews linked to Auschwitz had not taken place, or at least not in the way that it had been reported by historians. The atrocities associated with Auschwitz were a lie and a projection. The lies surrounding Auschwitz had been used since the end of the Second World War to serve various political and economic purposes.”

The Regional Court concluded that the applicant had thereby denied in a qualified manner the systematic, racially motivated, mass extermination of the Jews carried out at Auschwitz during the Third Reich (qualifizierte Auschwitzleugnung).

10. In arriving at this conclusion, the Regional Court considered that the applicant had first spoken of a “barrage of propagandistic lies”, to which the Germans had been endlessly exposed since the end of the Second World War, and mentioned the “Auschwitz projection” (Auschwitzprojektion) as an example thereof. Linguistically, he had used the terms “lie” and “projection” in close succession as having the same intended meaning, as could be seen in the structure of the sentence. He had used the term “Auschwitz projection” in a sequence that had also contained the terms “propagandistic lies”, “dishonest” and “lie”, connected by the word “also”. With regard to perpetrators and motives in respect of “the Auschwitz lie”, he stated that the propagandistic lies had been “cultivated in a dishonest manner primarily by representatives of the so-called democratic parties” and that “the so-called Holocaust [was] being used for political and commercial purposes”.

11. The Regional Court noted that terms such as “Auschwitz lie”, “Auschwitz myth” and “Auschwitz cudgel” – which were used time and again in connection with the claim that the murder of millions of Jews during the Third Reich was a (Zionist) swindle – epitomised the assertion that the Holocaust and the events that had taken place in Auschwitz had not occurred as documented in official history books. The term “Auschwitz projection” served that same purpose. The applicant’s reasoning for the alleged “Auschwitz projection” – namely the “[use of the] Holocaust for political and commercial purposes” – invoked an idea that had occupied German courts in numerous cases: namely, the association of “Auschwitz denial” with a particular motive – that is to say the alleged suppression and exploitation of Germany (for the benefit of the Jews), which German courts had determined to constitute a “qualified Auschwitz denial”. The Regional Court ruled out the possibility that the applicant’s statements – which, objectively, were to be understood as constituting a “qualified Auschwitz denial” – could have been misunderstood.

12. The Regional Court observed that the applicant had not commented on the speech during the appeal hearing and that his lawyer had put forward unconvincing interpretations. It was not in dispute that large parts of the applicant’s speech did not raise an issue under criminal law, either because they did not constitute criminal offences or because of the applicant’s non‑liability (Indemnität, see paragraph 29 below). However, these parts of the applicant’s speech could not mitigate or whitewash (schön reden) the utterance cited above. It considered that the applicant had chosen the Wilhelm Gustloff as a subject by way of creating a contrast to the memorial event of 27 January 2010. In large parts of his speech he had referred to German victims of the Second World War – in particular those who had been on the Wilhelm Gustloff – and to other mass murders that had occurred in history. This did not raise an issue under criminal law. In so far as he had criticised the remembrance of the victims of National Socialism and had used dramatic, striking terminology (such as “guilt cult”, “guilt-cult events” and “theatrical display of concern”) to that end, he could rely on his right to freedom of expression as a Member of Parliament, which included the right to make absurd statements in a speech to Parliament.

13. However, those statements could not mitigate or conceal the qualified Auschwitz denial. The latter had constituted only a small part of the applicant’s speech and the applicant had inserted that denial into the speech as if “inserting poison into a glass of water, hoping that it would not be detected immediately”. For that reason, the Speaker of Parliament had not issued a sanction during the applicant’s speech, and the MPs present had only expressed their indignation. The Regional Court was convinced that the applicant had intended to convey his message exactly in the way that it had been perceived. He wanted to question the accepted truth about Auschwitz and to “sneak” this into Parliament (dem Parlament “unterjubeln”) in such a way that no parliamentary measures would be taken.

14. The Regional Court found that the applicant’s qualified Auschwitz denial constituted defamation under Article 187 of the Criminal Code (see paragraph 28 below). The victims of the offence were those Jewish people who – as part of the German population – had been persecuted during the Nazi tyranny because of their religion or their ethnic origin and who had either lost their lives as a result or survived such persecution. The systematic mass murder of the Jews, committed in the concentration camps during the Second World War, was an established historical fact. The qualified Auschwitz denial given by the applicant was tantamount to an untruth. The applicant’s assertions were capable of defaming the persecution of the Jews in Germany (das Verfolgungsschicksal der betroffenen Juden in Deutschland verächtlich zu machen) – an event which formed an inherent part of their personal dignity. The speech had been given in Parliament and had been broadcast over the Internet at the same time. The applicant had acted with intent. He could not rely on his right to freedom of expression in respect of his denial of the Holocaust. In making his defamatory statements, the applicant had also denigrated the memory of those murdered in Auschwitz during the Nazi dictatorship because of their Jewish origins. He was thus also guilty of violating those peoples’ memory under Article 189 of the Criminal Code (see paragraph 28 below).

15. The applicant could not invoke his inviolability from prosecution as a Member of Parliament, because the Parliament of Mecklenburg-Western Pomerania had revoked it (see paragraph 6 above and paragraph 29 below). Nor was the applicant’s criminal liability barred by his non-liability under Article 24 § 1 of the Constitution of the Land of Mecklenburg-Western Pomerania and Article 36 of the Criminal Code (see paragraph 29 below), because defamation (verleumderische Beleidigungen) – under both Article 187 and Article 189 of the Criminal Code – did not fall within the scope of that non-liability. In so far as the applicant may have erred in his understanding of the scope of his non-liability, this did not affect his criminal liability.

16. On 25 March 2013 the applicant lodged an appeal on points of law against the above-mentioned judgment with the Rostock Court of Appeal.

17. After learning that one of the three judges of the Rostock Court of Appeal responsible for adjudicating that appeal, X, was the husband of the professional District Court judge Y, who had convicted the applicant at first instance (see paragraph 7 above), the applicant, by means of a written submission dated 5 August 2013, lodged a complaint of bias in respect of judge X.

18. On 6 August 2013 judge X commented in writing on his alleged bias, stating that his wife had – in view of the extensive media coverage of the case – informed him about the course of the proceedings before the District Court. Apart from that, the proceedings had – in line with their general practice – not formed part of their conversations. He was not biased in the proceedings at issue. He also emphasised that the Court of Appeal was called upon to examine the Regional Court’s judgment, not that of the District Court.

19. On 16 August 2013 the Court of Appeal, with the participation of the challenged judge X, dismissed the bias complaint as inadmissible under Article 26a of the Code of Criminal Procedure (see paragraph 31 below). It explained that it had only examined the appellate judgment delivered by the Regional Court, not the first-instance judgment delivered by the District Court. Following the applicant’s appeal on points of fact and law, the Regional Court had not been called on to review the District Court’s judgment, but rather had had to conduct a main hearing and to comprehensively establish the circumstances of the case anew – both in fact and in law. The fact that X and Y were married could not in itself lead to a fear of bias. The complaint was thus completely ill-suited (völlig ungeeignet).

20. By the same decision, the Court of Appeal dismissed the applicant’s appeal on points of law as ill-founded, finding no legal error to his detriment in the Regional Court’s judgment.

21. On 22 August 2013 the applicant lodged a motion to be heard, alleging that the Court of Appeal had not addressed some of his arguments relating to his criminal conviction and some relating to his bias complaint against judge X, notably that X, if the appeal on points of law were granted, would have to criticise his wife indirectly, which he would be reluctant to do; that the spouses had talked about the subject matter of the proceedings and that, in the absence of a statement by X specifying the content of the discussions, it had to be assumed that they talked about the key legal issues of the case and that X was hence not impartial. The bias complaint against X had, at least, to be deemed admissible and be adjudicated without X’s participation, even more so as X was the rapporteur. He requested that the decision of 16 August 2013 be quashed and the proceedings concerning the appeal on points of law be continued.

22. By the same submission, he lodged a bias complaint against the three judges who took the decision of 16 August 2013. There were serious doubts as to their impartiality, as they had not even remotely addressed the applicant’s submission in his appeal on points of law and did not seem to have the slightest problem with the fact that X had indirectly reviewed his wife’s judgment. They even assigned X as the rapporteur in the case and dismissed the applicant’s bias complaint against X as inadmissible. This showed that their approach to the subject matter of the proceedings was ill-considered and dominated by inappropriate (sachfremd) considerations concerning the applicant. The procedural approach employed was arbitrary, notably because the conditions of Article 26a of the Code of Criminal Procedure were not met. It was evident that the bias complaint did not call for a purely formal decision, but would have required an in-depth assessment. The arbitrary processing of the bias complaint gave raise to doubts as to the impartiality of the judges who took that decision.

23. On 11 November 2013 the Court of Appeal dismissed the bias complaint against all three judges who took the decision of 16 August 2013. Sitting as a bench of three judges, none of whom had been involved in the decision of 16 August 2013, it noted that bias complaints that were lodged after a decision to dismiss an appeal on points of law as ill-founded were, in principle, belated and thus inadmissible under Article 26a of the Code of Criminal Procedure. For a bias complaint to be admissible, it had to be lodged prior to the decision dismissing the appeal on points of law as ill‑founded. This would equally be true where the bias complaint was made in conjunction with an ill-founded motion to be heard. The purpose of Article 356a of the Code of Criminal Procedure, which concerned breaches of the right to be heard in a decision on an appeal on points of law, was to provide the Court of Appeal with the opportunity to remedy a breach of a right to be heard by way of another assessment of the merits of the appeal on points of law. Its purpose was not, however, to enforce (Geltung verschaffen) a belated, and thus inadmissible, bias complaint through an impertinent claim that the right to be heard had been breached. However, in the present case, the decision of 16 August 2013 not only concerned the dismissal of the appeal on points of law as ill-founded, but also a bias complaint. In view of these particularities, it was not appropriate to adjudicate the applicant’s subsequent bias complaint in accordance with Article 26a of the Code of Criminal Procedure, as that provision was to be interpreted narrowly and was foreseen for exceptions, with its scope in principle limited to purely formal decisions. The applicant’s subsequent bias complaint was thus admissible.

24. Turning to the merits, the court found that the applicant’s second bias complaint against the three judges was, however, ill-founded. Doubts as to the impartiality of a judge were justified where the person alleging bias, based on a sensible assessment of the facts known to him, has reason to believe that the judge concerned would take a position which could interfere with his impartiality. The decisive standpoint was that of a reasonable defendant and the ideas that a party to the proceedings, who was mentally sound and in full possession of his reason (ein geistig gesunder, bei voller Vernunft befindlicher Prozessbeteiligter), may have when assessing the circumstances in a serene manner, which could reasonably be expected of him. As a rule, the participation of a judge in earlier decisions was not a ground for objecting to a judge (Ablehnungsgrund), because a reasonable defendant must assume that the judge did not, thereby, determine his position for future decisions. The situation was different where particularities of the prior involvement, such as grossly flawed or even arbitrary (wrong) decisions to the detriment of the person concerned, gave rise to a (well-founded) suspicion of partiality in an individual case.

25. In the present case, such grounds justifying the objection had neither been submitted by the applicant nor were they evident. The applicant had not substantiated objectively reasonable circumstances giving rise to a fear of bias. The prior involvement of a judge with the substance matter of the proceedings was, in itself, never a ground for objecting to a judge, as a reasonable defendant can assume that the judge will approach the matter without bias, even if he had previously formed an opinion on the case. This also applied to a judge dealing with appeals on points of law. It was true that the applicant had additionally submitted that the very manner of the prior involvement proved the partiality of the challenged judges. However, specific circumstances which would justify such fear also from the perspective of a reasonable applicant were not apparent. The applicant’s submission was, in substance, limited to complaining that the judges had not followed his line of reasoning and to alleging that the judges had thus “repeatedly and intentionally” breached his right to be heard and that they proceeded in an “objectively arbitrary” manner. This was not sufficient. A sensible assessment of the decisions to the applicant’s detriment, which he considered flawed, did not justify a fear of bias in respect of the challenged judges.

26. On 14 November 2013 the Court of Appeal rejected the applicant’s objection to its decision of 16 August 2013, in which he alleged a violation of his right to be heard, concerning his appeal on points of law.

27. On 5 June 2014 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint for adjudication, without providing reasons (no. 2 BvR 2636/13).