May 05, 2010
This guestblog is written by our colleague Hannes Cannie*
The criminal tribunal of Utrecht (the Netherlands) has rendered an interesting judgment (22 April 2010) in a case in which an alleged discriminatory cartoon was at stake. The Dutch branch of the Arab European League (hereafter, AEL), a movement in Belgium and the Netherlands that aims to advance the interests of Arab immigrant communities, had published different cartoons on various websites. One of these showed two Jewish men who study a pile of corpses lying under a sign with ‘Auswitch’ on it. One man says: ‘I don’t think they are Jews’, while the other replies: ‘We have to get to the 6.000.000 somehow’. After a complaint was filed, the Public Prosecutor eventually decided to start criminal proceedings against AEL and its president, who designed the cartoon, grounded on Article 137c of the Dutch Criminal Act. This Article penalizes the crime of public insult of a group of human beings, amongst others because of their race or religion.
The tribunal emphasises that the cartoon is disgusting and particularly harmful, and therefore insulting in itself, for Jews, as such disrespectful reference to the Holocaust must be very harmful for Jewish victims and their relatives, as well as about Jews in the sense of Article 137c, as the cartoon suggests that the Jews have invented the Holocaust (for their own gains). But does this suffice to restrict the freedom of expression of AEL? In this regard, the tribunal refers to Article 10 of the European Convention on Human Rights (ECHR) and the speech-protective framework established by the European Court (ECtHR), which has consistently stated that freedom of expression is also applicable to ideas and information that ‘offend, shock or disturb’. Restrictions on this freedom are only justified when these are ‘necessary in a democratic society’. The Dutch judges have very well understood that, in order to judge this ‘necessity’, the case must be examined in the light of all its factual elements. In other words, not only the content of the challenged expressions, but also the context in which these were made, must be taken into consideration. AEL made clear from the beginning, by way of press releases and an accompanying disclaimer, that it takes distance from the content of the cartoon and that it only intended to expose a ‘double morality’ in the media and the public debate since the publication of the Danish Mohammed cartoons: on the one hand, it is generally felt that cartoons about topics that are sensitive to Muslims (for example about the prophet Mohammed) are clear examples of legitimate exercise of the right to freedom of expression, while on the other, it seems that cartoons about topics that are very sensitive to our western secular society (our ‘holy cows’, with the Holocaust on top, as Belgian historian Gie van den Berghe wrote in the Belgian news magazine Knack, 15 February 2006) are generally denounced. In the end, the tribunal found these contextual elements grave enough to judge that the qualification of the cartoon as ‘insulting’ in the sense of Article 137c of the Criminal Act, which would lead to a criminal conviction, is not necessary in a democratic society, with acquittal of AEL and its president as a result.
It occurs to me that the Dutch tribunal has made a better application of established international free speech standards than the Strasbourg Court does, which is of course expected to apply the protective standards it itself developed throughout its case law on freedom of expression. In cases related to some form of (alleged) Holocaust denial, however, the Court seems to maintain a different approach. When facing a national conviction because of Holocaust denial/trivialization, the Court, and the former Commission (ECommHR), have developed a tradition of applying the ‘abuse clause’ (Article 17 ECHR, which prohibits abuse of rights, including the right to freedom of expression) in such a way that the ‘necessity in a democratic society’ of the governmental restriction is ‘assumed’ on the grounds of the national courts’ findings and the content of the disputed expressions. A full-scale examination of all factual elements, such as context, and a proportionality supervision of the sanction imposed (as were justly carried out by the Dutch tribunal) are then to a great extent, or even completely, absent (see e.g. ECommHR, Otto E.F.A. Remer vs Germany, 6 September 1995; ECtHR (decision), Witzsch vs Germany, 20 April 1999 and ECtHR (decision), Garaudy vs France, 24 June 2003). In this way, applicants who seek to safeguard their right to freedom of expression at the Strasbourg level are denied some traditionally established procedural guarantees.
Looking only to its content, the cartoon in question could beyond doubt be marked as trivializing the clearly established historical fact the Holocaust is, as it in itself at least expresses clear doubts about the scale of this historical trauma. Given the fierce position taken by the Court in its case law on expressions related to (some form of) Holocaust denial, I have the strong impression that even the clear contextual fact that the expression is uttered by way of a cartoon would not play an important role in the Court’s assessment. Although the Court has always provided high protection to artistic expressions (even a painting depicting an Austrian FPÖ-politician ejaculating in the face of Mother Theresa was protected under Article 10, see ECtHR, Vereinigung Bildender Künstler v. Austria, 25 January 2007) and has emphasized on multiple occasions that cartoons and other satirical forms of expression are inherently provocative and agitating, it has also made clear that some subject matters, such as the Holocaust, are too harmful and delicate to be ridiculed. Although the sensitivities related to the Holocaust on the one hand, and to the prophet Mohammed on the other, are of a totally different order and are therefore difficult, if not impossible, to compare, I think the Court should be cautious not to have two weights and measures, for it is beyond doubt that a national conviction because of a cartoon about the prophet Mohammed, which is a sensitive topic to the Muslim community, would lead to a full scale necessity examination in order to judge the admissibility of this conviction. The best way to avoid having two weights and measures is explicitly formulating and transparently motivating the specific reasons (evolving from the specifications of the present case) for restricting or sanctioning speech in order to properly meet the necessity test (which is only the ‘normal’, logical approach, providing ‘full’ procedural guarantees for applicants seeking to safeguard their right to freedom of expression at the Strasbourg level).
Another reason why I disapprove of the Strasbourg Court’s dual approach is related to the circumstance that international instruments and the judicial interpretation thereof, as ‘higher’ norms, can afford considerable legitimization for national practices. In the Netherlands today, no explicit legislation criminalizing Holocaust denial/trivialization exists (which explains why the Public Prosecutor had to grab back to ‘public insult’ legislation), but in many other (neighbouring) countries, various forms of Holocaust denial (such as pure ‘denial’ or ‘gross minimization’) are in themselves criminal activities explicitly prohibited by law (e.g. Belgium, with its Law of 23 March 1995, and the Loi Gayssot in France). The Court’s application of the abuse clause to national convictions for Holocaust denial risks to suggest that restrictions are so clearly permitted by international human rights instruments that these need not to be justified by any threshold of proof at national level. In my opinion, this leaves a too broad margin of appreciation to the national states, which could provoke a decreasing impact at national level of international free speech guarantees.
For these reasons, I think that the approach of the Dutch tribunal, taking into account the factual context (in pursuance of the European Court’s own speech principles) in a case that could be marked as a form of Holocaust denial, can be seen as a valuable lesson for the Strasbourg Court itself.
*The author is research and teaching assistant in the field of media law at the Department of Communication Studies at Ghent University. He is a member of the Center for Journalism Studies and the Human Rights Centre (Ghent University) and a contributor to the IRIS network (legal observations of the European Audiovisual Observatory). As a PhD student his research focuses on (abuse of) the right to freedom of expression.