Information Note on the Court’s case-law 233
October 2019
Pastörs v. Germany - 55225/14
Judgment 3.10.2019 [Section V]
Article 6
Criminal proceedings
Article 6-1
Impartial tribunal
Alleged lack of impartiality by judge at third instance due to marriage to first-instance judge: no violation
Article 10
Article 10-1
Freedom of expression
Criminal conviction of member of parliament for statements made in Parliament found to constitute Holocaust denial: inadmissible
Article 17
Prohibition of abuse of rights
Criminal conviction of member of parliament for statements made in Parliament found to constitute Holocaust denial: inadmissible
Facts – The applicant was a member of parliament and chairperson of the National Democratic Party of Germany in the Land Parliament of Mecklenburg-Western Pomerania. He was convicted at first instance of violating the memory of the dead and of defamation following statements he had made in a speech to Parliament. The Regional Court, sitting at second instance, dismissed the applicant’s appeal on points of fact and law as ill-founded, having established the circumstances of the case anew. The applicant lodged an appeal with the Court of Appeal. After learning that one of the three judges responsible for adjudicating his appeal was married to one of the judges who had decided his case at first instance, he lodged a complaint of bias. The Court of Appeal, with the participation of the impugned judge, dismissed the bias complaint as inadmissible and his appeal on points of law as ill-founded. A subsequent panel of the Court of Appeal dismissed his bias complaint.
Law – Article 10: In cases concerning Holocaust denial, whether the Court applied Article 17 directly, declaring a complaint incompatible ratione materiae, or instead found Article 10 applicable, invoking Article 17 at a later stage when it examined the necessity of the alleged interference, was a decision taken on a case-by-case basis and would depend on all the circumstances of each individual case.
In the applicant’s case, on the one hand, his statements had shown his disdain towards the victims of the Holocaust, which spoke in favour of the incompatibility ratione materiae of the complaint with the provisions of the Convention. On the other hand, the statements had been made by a member of parliament during a parliamentary session, such that it could warrant an elevated level of protection and any interference with it would warrant the closest scrutiny on the part of the Court.
The Regional Court had cited and assessed the applicant’s speech in full. The gist of its reasoning was threefold: the applicant had inserted the qualified Holocaust denial into his speech, large parts of which had not raised an issue under criminal law, as if inserting “poison into a glass of water, hoping that it would not be detected immediately”; the parts of his speech that had not raised an issue under criminal law could not mitigate, conceal or whitewash the qualified Holocaust denial; and he had wanted to convey his message exactly in the way that it had been understood by the Regional Court, in the view of an objective observer.
The Court attached fundamental importance to the fact that the applicant had planned his speech in advance, deliberately choosing his words and resorting to obfuscation to get his message across. It was with reference to that aspect of the applicant’s case that Article 17 had an important role to play, regardless of Article 10 being deemed applicable. The applicant had sought to use his right to freedom of expression with the aim of promoting ideas contrary to the text and spirit of the Convention. That weighed heavily in the assessment of the necessity of the interference.
While interferences with the right to freedom of expression called for the closest scrutiny when they concerned statements made by elected representatives in Parliament, utterances in such scenarios deserved little, if any, protection if their content was at odds with the democratic values of the Convention system. The exercise of freedom of expression, even in Parliament, carried with it the “duties and responsibilities” referred to in Article 10 § 2. Parliamentary immunity offered, in that context, enhanced, but not unlimited, protection to speech in Parliament.
The applicant had intentionally stated untruths in order to defame the Jews and the persecution that they had suffered during the Second World War. The applicant’s impugned statements had affected the dignity of the Jews to the point that they had justified a criminal-law response. Even though the applicant’s sentence of eight months’ imprisonment, suspended on probation, was not insignificant, the domestic authorities had adduced relevant and sufficient reasons and had not overstepped their margin of appreciation. The interference had therefore been proportionate to the legitimate aim pursued and was thus “necessary in a democratic society”. There was no appearance of a violation of Article 10.
Conclusion: inadmissible (manifestly ill-founded).
Article 6 § 1: The fact that two judges had been married and had dealt with the applicant’s case at different levels of jurisdiction could give rise to doubts as to impartiality.
As regards the procedure for ensuring impartiality, the Court of Appeal, with the participation of the impugned judge, had decided on both the applicant’s complaint of bias and on his appeal on points of law. The default approach under domestic law would have been for the complaint of bias to have been decided without the judge’s participation. However domestic law provided an exception. While it was not for the Court to interpret domestic law, it was difficult to understand how the applicant’s bias complaint could have been deemed “completely ill-suited”, as required by that exception. The applicant’s complaint of bias could not be considered as abusive or irrelevant as there could have been an appearance of lack of impartiality. The judge’s participation in the decision on the bias complaint against him had not helped dissipate what doubts there may have been.
The Court had previously found that a lack of impartiality in criminal proceedings had not been remedied in cases where a higher court had not quashed the lower court’s judgment adopted by a judge or tribunal lacking impartiality. Unlike in the applicant’s case, where the objective justification of the applicant’s doubt in respect of the judges dealing with his appeal on points of law had primarily resulted from the procedure they had chosen, the impartiality defects in earlier cases had either been more severe or the subsequent decisions had not given substantive arguments in response to the applicant’s complaint of bias, thus not remedying the defect.
In the applicant’s case the subsequent review decision had not been rendered by a higher court, but rather by a bench of three judges of the same court who had not been involved in any previous decisions in the applicant’s case. The review decision had not entailed a full assessment of either the applicant’s appeal on points of law or the decision dismissing it as ill-founded, but had been limited to the question of whether the judges involved in that decision had been biased. However, if the review decision had been rendered in the applicant’s favour, the applicant’s motion to be heard would subsequently have had to have been adjudicated by other judges. It had thus been submitted to a subsequent control of a judicial body with sufficient jurisdiction and offering the guarantees of Article 6.
Lastly, the applicant had not given any concrete arguments why a professional judge – being married to another professional judge – should be biased when deciding on the same case at a different level of jurisdiction which did not entail review of the spouse’s decision. The Court of Appeal had given sufficient arguments in response to the applicant’s submissions. The participation of the judge in the decision on the bias complaint against him had been remedied by the subsequent assessment, on the merits, of the bias complaint, for which the applicant had advanced the same ground, by a separate panel of judges of the same court. There had not been objectively justified doubts as to the Court of Appeal’s impartiality.
Conclusion: no violation (four votes to three).
(See also Perinçek v. Switzerland [GC], 27510/08, 15 October 2015, Information Note 189; Williamson v. Germany (dec.), 64496/17, 8 January 2019; Roj TV A/S v. Denmark (dec.), 24683/14, 17 April 2018, Information Note 218; Karácsony and Others v. Hungary [GC], 42461/13 and 44357/13, 17 May 2016, Information Note 196; Vera Fernández-Huidobro v. Spain, 74181/01, 6 January 2010, Information Note 126; Crompton v. the United Kingdom, 42509/05, 27 October 2009 and compare A.K. v. Liechtenstein, 38191/12, 9 July 2015)
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This summary by the Registry does not bind the Court.
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