AS TO THE ADMISSIBILITY OF
Application No. 13214/87
by Malcolm LOWES
against the United Kingdom
The European Commission of Human Rights sitting in private on
9 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 31 December 1986
by Malcolm LOWES against the United Kingdom and registered on
17 September 1987 under file No. 13214/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a United Kingdom citizen, born in 1947, and
detained in H.M. Prison Albany, Isle of Wight.
This is the applicant's second application to the Commission.
His first, No. 5442/72, concerned, inter alia, the applicant's freedom
of religion as a Buddhist and freedom to publish from prison. It was
declared inadmissible on 20 December 1974.
The present application concerns the refusal by the
authorities at Norwich Prison, where the applicant was detained, to
allow him to receive Issue No. 16/17 of a publication called "Gothic
Ripples". In a petition reply dated 16 March 1987 the Secretary of
State upheld the censorship of the publication in the following terms:
"The Secretary of State has fully considered your petition
but can find no grounds for taking any action in regard to
it. 'Gothic Ripples' has been stopped under Standing Order
4A 8c because it is explicitly anti-semitic and can
reasonably be held to be a threat to good order and
discipline within the prison."
Standing Order 4A 8c provides that "the Governor may also
withhold or withdraw any newspaper or periodical or any particular
issue, or any book, if he considers that the content would present a
threat to good order and discipline...."
Other literature which had arrived at the same time from the
Palestine Liberation Organisation was handed to the applicant.
The applicant submitted that "Gothic Ripples" is not
anti-semitic, but anti-zionist, and that the censorship was
unnecessary. He claims that the bulletin is only critical of Jewish
people insofar as they are anti-Palestine.
The applicant has no record of prison indiscipline and has in
the past been allowed to receive other copies of "Gothic Ripples".
At the request of the Rapporteur, pursuant to Rule 40 para. 2
(a) of the Commission's Rules of Procedure, the Government submitted a
copy of the document in question to the Commission.
The first two pages of the bulletin, Issue No. 16/17, offers a
list of books which may be bought from "Gothic Ripples". The list
includes the following works:
"Blood and Soil" by Anna Bramwell .... "An objective study of
Hitler's Minister of Agriculture".
"Improvised Munitions Handbook" .... "Essential in the event
of a red revolution or Soviet attack, a US Army manual
detailing how to make explosives, weapons, incendiaries".
"Mein Kampf" by Adolf Hitler.
"The Hoax of the Twentieth Century" by AR Butz .... "One of
the principal and most exhaustive, critical studies of the
alleged extermination of 6 millions Jews in World War II".
"The Great Holocaust Trial" by Michael Hoffman .... "A full
account of the sensational trial of Ernst Zündel in Toronto
in 1985 where Jewish extermination was disproved".
"The Camp of the Saints" by Jean Raspail .... "A novel
concerning an ultimate, global population explosion when
vast hordes of coloured immigrants migrate to the West,
swamping the Whites".
Pages 3-7 of the bulletin contain an article entitled
"Democracy Shows Fangs: World-wide suppression of racial
nationalism". The article purports to describe how "democratic
claptrap designed to fool the masses" is suppressing the national
socialist movements as it did "the world's one and only successful
revolt against the negation of true freedom", i.e. "National Socialist
Germany". The article includes the following statement:
"The world drive to suppress racial free speech as a liberty
dangerous to the rule of the Jew through the manipulation
of mongrel masses was founded on the conception of 'genocide'
coined by the Jew Raphael Lemkin, and its incorporation in
the Genocide Convention adopted by the Jew - United Nations
General Assembly on 9 December 1948."
The article is illustrated with cartoons of Jewish men in
positions of powers, e.g. cracking the whip at the Houses of
Parliament over politicians on their hands and knees, and a trick
photograph of Leon Brittan, MP, with a hangman's rope around his neck
and the caption "Leon Brittan who drew up the new law to protect his
tribe from criticism", i.e. the incitement to racial hatred provisions
of the Public Order Act 1986.
The brochure's remaining articles are in a similar vein,
describing allegedly unjustified criminal proceedings or other
sanctions for racist offences.
COMPLAINTS
The applicant complains that the withholding of Issue No.
16/17 of the publication "Gothic Ripples" by the prison authorities
constituted a violation of his freedom to receive information ensured
by Article 10 of the Convention. The applicant also invoked Articles
5, 8, 9, 13 and 14 of the Convention and Article 1 of Protocol No. 1
to the Convention.
Commenting on Issue No. 16/17 after it had been submitted to
the Commission by the Government, the applicant stated that it was not
his claim that the publication contained any serious debate about
zionism, only that he believed it to be anti-zionist. He was unable
to say, not having seen the particular Issue of the bulletin at that
stage, whether its line of debate was serious or mischievous. He
could only refer to his own situation and motives: He is anti-zionist
and does not hate Jewish people. He only dislikes Jewish and
non-Jewish people who fund continued atrocities against the native
inhabitants of Palestine, whether those nature inhabitants are Arabs
or the oriental Jews originally there.
"Gothic Ripples" and the books featured in the bibliography
of the censored Issue No. 16/17 are not illegal publications and the
said books may be obtained from public lending library services. "The
Hoax of the Twentieth Century" is one such book which the applicant is
allowed in his prison cell. The applicant acknowledged that it is
controversial, but he is only seeking to read lawfully published
material pursuant to his rights under Article 10 of the Convention.
He has been allowed to receive Issue No. 19 of "Gothic
Ripples". Its principal articles denigrate Winston Churchill's war
role and reflect on "the real war criminals who got away with it",
i.e. the allied forces. It does contain references to certain "Jews"
and a "half Jew", but it is devoid of cartoons and bibliographies.
The applicant contended that in banning Issue No. 16/17, one small
insignificant item which the applicant claimed only he and the prison
censor would know about, the prison authorities were being grossly
inconsistent. The applicant averred that no incident has ever arisen
out of his imprisonment, whether as a result of his opinions or his
behaviour, or in connection with such publications.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 31 December 1986 and
registered on 17 September 1987. On 4 January 1988 the Rapporteur,
pursuant to Rule 40 para. 2 (a) of the Commission's Rules of
Procedure, requested the respondent Government to submit a copy of the
censored publication "Gothic Ripples". The Government submitted the
publication, Issue No. 16/17, on 26 January 1988. The applicant was
not sent a copy of the publication at that stage, although certain of
its contents were described to him in the following terms:
"... there appear to be no references in the aforementioned
document to any serious debate about zionism .... Remarks
are made about Jews and their alleged power in British life.
It contains seemingly offensive cartoons of Jewish characters,
including a photograph of Leon Brittan, MP, with a rope
around his neck, accused of protecting 'his tribe from
criticism'. It also indicates a bibliography of such works
as 'The Hoax of the 20th Century, One of the principal and
most exhaustive, critical studies of the alleged
extermination of 6 million Jews in World War II', and 'The
Great Holocaust Trial, A full account of the sensational
trial of Ernst Zündel in Toronto 1985, where Jewish
extermination was disproved' (underlining added)."
The applicant submitted comments on this information on
7 March 1988 (paragraphs 2-4 THE COMPLAINTS, above).
The Commission decided on 3 May 1988 to request the Government
to make arrangements for the applicant to have sight of the censored
document. Thereafter the applicant was invited to submit his comments
on the justification for the original censorship. The Government
complied with the Commission's request, but the applicant submitted no
further comments relevant to the issues in his case.
THE LAW
1. The applicant complained that the British prison authorities
refused him permission to receive Issue No. 16/17 of a magazine called
"Gothic Ripples".
2. His principal claim is that the withholding of this Issue of
"Gothic Ripples" constituted a breach of Article 10 (Art. 10) of the
Convention, the relevant part of which provides as follows:
"1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and
to receive and impart information and ideas without
interference by public authority....
2. The exercise of these freedoms, since it carries
with it duties and responsibiities, may be subject to
such formalities, conditions, restrictions or penalties
as are prescribed by law and are necessary in a
democratic society .... for the prevention of disorder
or crime, for the protection of health or morals, for
the protection of the reputation or rights of others...."
The Commission notes that the prison authorities censored the
publication in question because it was considered to be "explicitly
anti-semitic". The applicant submitted, on the basis of his knowledge
of previous issues, that "Gothic Ripples" was not anti-semitic, but
anti-zionist. He also claimed that the censorship of Issue No. 16/17
and not other Issues or similar publications showed gross
inconsistency on the part of the prison administration.
However the Commission has examined the censored copy of
"Gothic Ripples" submitted by the Government and finds the conclusions
of the prison authorities justified. Issue No. 16/17 of the bulletin
contains no serious discussion of zionism. It advertises publications
which apparently encourage anti-semitism, racial prejudice and the use
of weapons. It uses language and illustrations which are anti-semitic
and offensive.
The Commission has also examined Issue No. 19 of "Gothic
Ripples" submitted by the applicant and does not find any
inconsistency on the part of the prison administration in allowing the
applicant to receive this document. It is less offensive, albeit
controversial, with notably fewer anti-semitic references. The fact
that the prison administration do not impose a blanket prohibition on
this publication and the literature which it advertises, but rather
review each item separately, shows commendable restraint, well within
the margin of appreciation afforded to the High Contracting Parties by
Article 10 (Art. 10) of the Convention in order to establish the necessary
balance between the individual's freedom of expression (the right to
receive information and ideas) and the legitimate interests of others
or the prevention of disorder or crime.
In these circumstances the Commission finds that whilst the
withholding of Issue No. 16/17 of the publication "Gothic Ripples"
from the applicant constituted an interference with the applicant's
freedom of expression, especially his right to receive information and
ideas, under Article 10 para. 1 (Art. 10-1) of the Convention, that
interference was nevertheless justified as being necessary in a
democratic society for the prevention of disorder or crime or for the
protection of the reputation or rights of others, within the meaning
of Article 10 para. 2 (Art. 10-2) of the Convention. This aspect of
the application is therefore manifestly ill-founded pursuant to
Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant has invoked other Articles of the Convention in
respect of his complaint: his right to liberty and security of person
(Article 5) (Art. 5) , his right to respect for his correspondence
(Article 8) (Art. 8), his freedom of thought and conscience (Article 9)
(Art. 9), his right to an effective remedy for a breach of the
Convention (Article 13) (Art. 13), his freedom from discrimination in
the securement of Convention rights on grounds of his political or
other opinions (Article 14) (Art. 14) and his right to property
(Article 1 of Protocol No. 1 to the Convention) (P1-1).
However, the Commission finds that the circumstances of the
present case disclose no appearance of a violation of these provisions
of the Convention. The censorship of Issue No. 16/17 of "Gothic
Ripples" casts no doubt on the lawfulness of the applicant's detention
under Article 5 (Art. 5) of the Convention. There is no need for the
Commission to examine the applicant's complaint further under Articles
8, 9 and 14 (Art. 8, 9, 14) of the Convention or Article 1 of Protocol
No. 1 (P1-1) because the justification for the censorship under
Article 10 (Art. 10) of the Convention would also justify any
interference which there might have been with the applicant's rights
under these provisions. Finally, as regards Article 13 (Art. 13) of
the Convention, the applicant had the possibility of petitioning the
Secretary of State about the censorship of "Gothic Ripples". He has
not claimed that Standing Order 4A 8c, under which regulation
censorship was imposed, was in itself incompatible with the
Convention; the Commission assumes, therefore, that the applicant only
wished to complain about the application of the regulation on this
occasion. In these circumstances the possibility of a petition to the
Secretary of State satisfied his claim and the requirements of Article
13 (Art. 13) of the Convention (Eur. Court H.R., judgment of Silver
and Others of 25 March 1983, Series A no. 61, pp. 43-44, paras. 118
and 119).
The Commission concludes that these aspects of the applicant's
case are also manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)