European Court of Human Rights
European Court of Human Rights

Germany: Court rejects blogger’s Nazi Himmler free expression complaint

Human rights judges have rejected a complaint from a German blogger, protesting his conviction after publishing a picture of Nazi leader Heinrich Himmler in Swastika uniform.

In its decision in the case of Nix v. Germany (application no. 35285/16) the European Court of Human Rights today unanimously declared the application inadmissible.

The decision is final.

The case concerned Hans Burkhard Nix’s conviction for posting a picture on his blog in 2014 of the former SS chief Heinrich Himmler in SS uniform wearing a swastika armband.

In January 2015 the Munich District Court convicted Nix of, among other things, using symbols of unconstitutional organisations after posting the picture of Himmler. The decision was upheld on appeal.

Relying on Article 10, Nix complained about his conviction, arguing in particular that the domestic courts had failed to take into account that his blog post was intended as a protest against school and employment offices’ discrimination against children from a migrant background.

The court found that Article 10 of the convention applied to the Internet and thus to Nix’s blog post.

An interference with his rights would nevertheless only infringe the Convention if therequirements of Article 10 § 2 were not met, including whether the interference was “necessary in a democratic society”. Such an assessment had to take account of German history as a weighty factor.

The court largely endorsed the domestic courts’ approach, including their view of why Nix had used the picture of Himmler with the swastika, in particular that it had been used as an “eyecatching device.”

However, banning the use of such images in that way had been one of the aims of the national legislation criminalising the use of symbols of unconstitutional organisations.

The court found that the domestic authorities had provided relevant and sufficient reasons for interfering with Nix’s right to freedom of expression and had not gone beyond their room for manoeuvre (“margin of appreciation”) in the case.

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