ECHR judgment of 3 October 2019 in the case of Pastors v. Germany (application No. 55225/14).
In 2014, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Germany.
In the case, the application on the right to a fair trial was successfully considered. The case has violated the requirements of paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicant was a member of parliament and the chairman of the German National Democratic Party in the Landtag of Mecklenburg-Vorpommern. He was convicted by the court of first instance for disrespect for the memory of the fallen and for the dissemination of untrue statements in his speech in parliament. The regional court, sitting as a court of second instance, dismissed the applicant's complaint regarding facts and law as manifestly ill-founded, re-establishing the circumstances of the case. The applicant appealed to the court of appeal. After the applicant found out that one of the three judges responsible for dismissing his complaint was married to a judge who examined the case in the trial court, the applicant complained about the bias of the court. The Court of Appeal, with the participation of the judge indicated in the complaint, dismissed the complaints of bias on issues of fact and law as manifestly unfounded. Another panel of judges of the court of appeal subsequently dismissed the applicant's complaint about the bias of the court.
QUESTIONS OF LAW
Regarding compliance with article 10 of the Convention. In cases involving Holocaust denial, whether the Court directly applied Article 17 of the Convention, declaring the application inadmissible ratione materiae or instead recognizing the applicability of Article 10 of the Convention and applying Article 17 of the Convention at a later stage when it considered the need for intervention, the decision was made separately in each case and depended on the circumstances of the particular case.
In the applicant's case, on the one hand, his remarks demonstrated his contempt for the victims of the Holocaust, which argued in favor of the incompatibility of the complaint ratione materiae with the provisions of the Convention. On the other hand, the statements were made by a member of parliament during the parliamentary session, therefore they enjoyed a high degree of protection and any interference required the most thorough examination by the European Court.
The regional court quoted and evaluated the applicant's speech in full. The court presented its reasoning in three directions: the applicant included Holocaust denial in his speech, significant parts of which did not address issues regulated by criminal law, as if he had introduced “a drop of poison into a glass of water, hoping that they would not be discovered immediately”; parts of the applicant’s speech that did not address criminal matters could not mitigate, obscure or whitewash the qualified Holocaust denial; the applicant wanted to convey his position in exactly the way that the regional court understood it, according to the objective observer.
The Court attached fundamental importance to the fact that the applicant had prepared his speech in advance, deliberately choosing words and resorting to a veiled text so that his statement reached the audience. It was with reference to this aspect of the case that Article 17 of the Convention took on a significant role, although it seemed that Article 10 of the Convention was applicable to the case. The applicant used his right to freedom of expression in order to disseminate ideas contrary to the text and spirit of the Convention. This moment greatly complicated the assessment of the need for intervention.
Although the interference with the right to freedom of expression required careful consideration when it came to statements made by elected representatives of parliament, speeches made in this scenario deserved little (if any) protection if their content was contrary to the democratic values of the Convention system. The exercise of the right to freedom of expression, even in parliament, entailed the “duties and responsibilities” referred to in article 10, paragraph 2, of the Convention. In this context, parliamentary immunity implied an expanded, but not unlimited defense of statements made in parliament.
The applicant deliberately told a lie in order to defame the Jews and justify the persecution that they suffered during the Second World War. The applicant’s statements under review prejudiced the dignity of the Jewish people to such an extent that they justified the criminal law reaction. Even though the punishment imposed on the applicant in the form of eight months of imprisonment was conditionally not insignificant, the German authorities cited relevant and sufficient reasons and did not go beyond the discretion granted to them. Consequently, the interference was proportionate to the legitimate aim set and, thus, was “necessary in a democratic society”, accordingly, there were no signs of violation of Article 10 of the Convention.
The complaint under Article 10 of the Convention is declared inadmissible as being manifestly ill-founded.
Concerning compliance with article 6, paragraph 1, of the Convention. The facts that the two judges were married and each of the spouses examined the applicant’s case at their level of jurisdiction could have raised doubts about the impartiality of the court.
As regards the procedure for ensuring impartiality, the appeal court with the participation of the judge, in respect of whom the challenge was filed, examined both the applicant's complaint about the bias of the court and his complaint on issues of fact and law. According to German law, a default complaint should be considered without the participation of a judge. However, German law provided for exceptions. Although the Court's task was not to interpret German law, it is difficult to understand how the applicant’s complaint about the court’s bias could be called “completely unsuitable” for consideration, as required by the relevant exception. The applicant's complaint about the impartiality of the court could not be considered offensive or irrelevant, as there could have been a lack of impartiality. The judge’s participation in the consideration of the complaint against the court’s bias could not dispel the doubts that might have taken place.
The Court has previously found that a lack of impartiality in a criminal process was not considered corrected in cases where a higher court did not reverse a decision of a lower court made by a judge or a panel that did not meet the requirement of impartiality. In contrast to the applicant’s case, in which the objective justification of the applicant’s doubts about the judges who examined his complaint regarding facts and law was mainly the result of the chosen procedure, the violations of the principle of impartiality examined by the Court in earlier cases were either more serious or The subsequent decisions did not contain substantive reasons in response to the applicant's complaint about the bias of the court, therefore, without correcting the violation.
In the applicant’s case, the subsequent review decision was not made by a higher court, but rather by a panel of three judges of the same court who had not previously participated in the examination of the applicant’s case. The decision did not entail a full assessment of the applicant's complaint on facts and law and did not dismiss the complaint as manifestly unfounded, but limited itself to the question of whether the judges involved in the decision were biased. However, if the decision on the review had been made in the applicant’s favor, the applicant’s request to appear in court would subsequently have to be considered by other judges. Thus, the applicant's appeal was under the control of a judicial authority with sufficient jurisdiction with guarantees provided for in Article 6 of the Convention.
In conclusion, the applicant did not provide specific arguments why a professional judge married to another professional judge should have been biased in considering the same case at a different level of jurisdiction, which did not entail a review of the decision of a lower court made with the participation of another spouse. The Court of Appeal provided sufficient explanations in response to the applicant's arguments. The judge’s participation in the decision on the complaint against the court’s bias was corrected by the subsequent examination of the merits of the court’s bias, in which the applicant presented the same arguments, by a separate panel of judges of the same court. There were no objectively substantiated doubts about the impartiality of the court of appeal.
There was no violation of the requirements of paragraph 1 of Article 6 of the Convention (adopted by four votes in favor and three against).