[JURIST] The European Court of Human Rights (ECHR) [official website] on Wednesday rejected [decision] a complaint from a German national concerning his 2015 prosecution and conviction in a Munich court for the posting of a picture in his blog post of former Schutzstaffel (SS) chief Heinrich Himmler [Britannica profile] in SS uniform wearing a Nazi swastika armband, as a form of protest.
The complainant, Hans Burkhard Nix, is a 64-year-old Munich resident who writes about various issues concerning economics, politics and society in his blog. Nix's daughter was 18 years old at the time and of German-Nepali origin. She was set to complete her schooling no earlier than the summer of 2015. In early 2014, the employment office in Munich sent a letter to Nix's daughter asking her to complete a questionnaire on whether she intended to continue schooling beyond September 2014 or planned on commencing vocational training or tertiary studies.
In response to this letter, Nix began publishing a series of posts [press release, PDF] protesting the employment office and additionally publishing his e-mail exchanges with the office. Dissatisfied with the response from a staff member of the employment office concerning the purpose of the questionnaire, Nix alleged in one of his posts that "the employment office intended to push his daughter, in a racist and discriminatory manner, into becoming part of the cheap labor force.
Nix then published a statement with a title publishing the staff member's name to the effect that the "[staff member] offers 'customised' integration into the low-wage [economy]." Below that title, Nix posted a picture of Himmler in SS uniform wearing the Nazi party badge and swastika armband and a quote from Himmler concerning the schooling of children in Eastern Europe during its occupation by Nazi Germany.
In January 2015, the Munich District Court convicted Nix of using symbols of unconstitutional organizations. That decision was upheld on appeal. Relying on Article 10 of the European Convention on Human Rights [text, PDF], Nix complained to the ECHR stating that the courts in Germany ignored the fact that his blog post was intended as a protest against the discriminatory practices of school and employment offices against children from a migrant background.
Article 10 of the Convention requires that any interference with the freedom of expression must be, among other things, "necessary in a democratic society." The ECHR agreed that Article 10 indeed applies to Nix's situation and acknowledged that Nix use of Himmler's picture and statement was only used "to illustrate the fact that professional success could nowadays be achieved only if children and young adults - especially those with foreign roots - cooperated with the employment offices, just as they had been required to cooperate with the SS during the Nazi era." Nevertheless, the ECHR rejected Nix's complaint stating:
The Court is satisfied that the applicant's conviction was prescribed by Article 86a of the Criminal Code. It notes that the purpose of that provision is to prevent the revival of prohibited organisations or the unconstitutional ideas pursued by them, to maintain political peace, and to ban symbols of unconstitutional organisations in German political life. ... In the light of their historical role and experience, States which have experienced the Nazi horrors may be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis ... the Court observes that the symbol used by the applicant - a picture of Heinrich Himmler in SS uniform with a swastika armband - cannot be considered to have any other meaning than that of Nazi ideology. ... The applicant must have been aware of the pertinent provision and case-law of the domestic courts, not least because he had been convicted of the same offence for having published a picture of Angela Merkel in Nazi uniform with a swastika armband and a painted Hitler-moustache some six weeks before he published the blog post at issue in the present case.
The ECHR additionally noted that the scope of the criminal code in this aspect is restricted in that it has exempted uses of such Nazi symbols where they "do not contravene the provision's purpose, including where the opposition to the ideology embodied by the symbol used is obvious and clear" but that mere "critical use of the respective symbols does not suffice to give rise to the possibility of exemption from criminal liability under domestic law."