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09.03.2016

ECtHR: Conviction of a human rights activist for defamation does not violate the right to freedom of expression

Sofie Luise Burger

The European Court of Human Rights (ECtHR) in Strasbourg ruled on 12 January 2016 (Application No. 55495/08) that the conviction of a human rights activist for defamation does not violate Article 10 of the European Convention on Human Rights (ECHR) which protects the right to freedom of expression.

The applicant is an Austrian activist who works for the association "Asyl in Not" ("asylum in need") which offers legal and social support to asylum seekers and refugees. In 2005, the Austrian Parliament adopted several amendments to laws concerning the status of foreigners and asylum seekers that were discussed contentiously. The amendments entered into force on 01 January 2006. Almost one year later, the Austrian Federal Minister of Interior Affairs died unexpectedly. The next day, on 1 January 2007, the applicant published a statement on the association's website, stating that the New Year started with good news, namely the death of the "Minister of torture and deportation".

After several specific stories of refugees, the applicant continued by calling the late minister "a desk war criminal just like many others in the atrocious history of this country", thus referring to the crimes committed by high-ranking Nazi officials during the Second World War and thereby comparing the deceased to these war criminals. The applicant concluded the text by stating that "no decent human being" would be "shedding tears over [the minister's] death" and expressed his hope that with a new minister, the damage done by the late minister could be reversed, so that Austria could return to being a place where human rights are respected. The statement had triggered a public dispute in the media. As a consequence, the applicant published a reply one week later in which he apologized to the late minster's family members, stating that his comments had been directed solely against the late minister and that her family was not responsible for the late minister's inhumane policies.

Nevertheless, the late minister's widower filed a private prosecution for defamation against the applicant. As a result, the applicant was convicted of defamation in respect to the above quoted passages and sentenced to a fine in the amount of 1.200 €. After he had failed to override the conviction in all instances in Austria, the applicant turned to the ECtHR.

The applicant claimed that the conviction interfered with his rights according to Art. 8 ECHR: The deceased minister would no longer have had any interest in a political career. The interests of her outliving husband were neither the same kind nor the same intensity as his deceased wife's since he wasn't a politician, nor did he intend to pursue a political career. In the applicant's view, his statement did not concern the person of the late minister but rather the political positions and policies for which she had to be held responsible. His value judgements had a factual basis and had altogether not exceeded the boundaries of legitimate political criticism.

The ECtHR found that the conviction of the applicant for his statements was not a violation of Art. 10 ECHR. The Court considered the statements in question as a value judgment lacking a sufficient basis in fact. On the one hand, the Court acknowledged that the limits of acceptable criticism are drawn more widely in a political debate, as the participants lay themselves open to close scrutiny of their every word and deeds by both journalists and the public at large, and must consequently display a greater degree of tolerance. Also, the applicant had intended to contribute to a political debate on a subject of high public interest with his statement. On the other hand, the ECtHR stated that dealing appropriately with the dead out of respect for the feelings of the deceased’s relatives falls within the scope of Art. 8 ECHR (right to respect private and family life).

The Court also found that, regardless of the forcefulness of political struggles, it is legitimate to try to ensure that they abide by a minimum degree of moderation and propriety: a clear distinction must be made between criticism and insult. If the sole intent of a particular form of expression is to insult a person, an appropriate sanction would not, in principle, constitute a violation of Art. 10 ECHR. In the present case, the timing of the impugned statement was a relevant circumstance and therefore had to be taken into consideration when balancing the conflicting rights under Art. 8 and 10 ECHR. The statement was an expression of satisfaction with the sudden death of the minister, and the applicant made it the day after she had surprisingly passed away. In the ECtHR 's view, to express insult on the day after the death of the insulted person contradicts elementary decency and respect to human beings and is an attack on the core of personality rights. The applicant had in fact launched a personal attack against the late minister, not just contributed to a political debate.

While the applicant had apologized to the family of the deceased minister in a newspaper, he insisted – even before the ECtHR – that the comparison of the minister to Nazi war criminals had been correct and justified. In conclusion, the Court stated that the applicant did not make any distinction between the person of minister and the politics she stood for from his point of view.

Sofie Luise Burger is a research associate at the Institute of European Media Law (EMR) in Saarbrucken/ Brussels.


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The ECtHR's decision of 12 January 2016 (Application No. 55495/08) can be found here.



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