British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
VEJDELAND AND OTHERS v. SWEDEN - 1813/07 [2012] ECHR 242 (9 February 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/242.html
Cite as:
[2012] Eq LR 369,
(2014) 58 EHRR 15,
32 BHRC 474,
58 EHRR 15,
[2012] ECHR 242
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIFTH
SECTION
CASE OF VEJDELAND AND OTHERS v. SWEDEN
(Application
no. 1813/07)
JUDGMENT
STRASBOURG
9 February
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Vejdeland v.
Sweden,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 10 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 1813/07)
against the Kingdom of Sweden lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by
four Swedish nationals, Mr Tor Fredrik Vejdeland, Mr
Mattias Harlin, Mr Björn Täng and Mr Niklas Lundström
(“the applicants”), on 4 January 2007.
The
applicants were represented by Mr N. Uggla, a lawyer practising in
Stockholm. The Swedish Government (“the Government”)
were represented by their Agent, Mrs A. Erman, of the Ministry for
Foreign Affairs.
3. The
applicants alleged that the Supreme Court judgment of 6 July 2006
constituted a violation of their freedom of expression under Article
10 of the Convention. They further submitted that they were punished
without law in violation of Article 7 of the Convention.
On
27 November 2008 the President of
the Third Section decided to give notice of the application to
the Government.
5. The
application was later transferred to the Fifth Section of the Court,
following the re-composition of the Court’s sections on 1
February 2011. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1).
In
addition to written observations by the applicants and the
Government, third-party comments were received jointly from the
International Centre for the Legal Protection of Human Rights and the
International Commission of Jurists, whom the President had
authorised to intervene in the written procedure (Article 36 § 2
of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1978, 1981, 1987 and 1986
respectively. The first applicant lives in Gothenburg and the other
applicants live in Sundsvall.
In
December 2004 the applicants, together with three other persons, went
to an upper secondary school (gymnasieskola) and distributed
approximately a hundred leaflets by leaving them in or on the pupils’
lockers. The episode ended when the school’s principal
intervened and made them leave the premises. The originator of the
leaflets was an organisation called National Youth and the leaflets
contained, inter alia, the following statements:
“Homosexual Propaganda (Homosexpropaganda)
In the course of a few decades society has swung from
rejection of homosexuality and other sexual deviances (avarter)
to embracing this deviant sexual proclivity (böjelse).
Your anti-Swedish teachers know very well that homosexuality has a
morally destructive effect on the substance of society (folkkroppen)
and will willingly try to put it forward as something normal and
good.
-- Tell them that HIV and AIDS appeared early with the
homosexuals and that their promiscuous lifestyle was one of the main
reasons for this modern-day plague gaining a foothold.
-- Tell them that homosexual lobby organisations are
also trying to play down (avdramatisera) paedophilia, and ask
if this sexual deviation (sexuella avart) should be
legalised.”
For
distributing the leaflets, the applicants were charged with agitation
against a national or ethnic group (hets mot folkgrupp).
The
applicants disputed that the text in the leaflets expressed contempt
for homosexuals and claimed that, in any event, they had not intended
to express contempt for homosexuals as a group. They stated that the
purpose of their activity had been to start a debate about the lack
of objectivity in the education dispensed in Swedish schools.
On
11 July 2005 the District Court (tingsrätten) of Bollnäs
found that the statements in the leaflets had clearly gone beyond
what could be considered an objective discussion of homosexuals as a
group and that the applicants’ intention had been to express
contempt for homosexuals. It therefore convicted the applicants of
agitation against a national or ethnic group, and sentenced the first
and second applicants to two months’ imprisonment, the third
applicant to a suspended sentence (villkorlig dom) combined
with a fine, and the fourth applicant to probation (skyddstillsyn)
combined with 40 hours of community service.
The
applicants as well as the prosecutor appealed against the judgment to
the Court of Appeal (hovrätten) for Southern Norrland.
The applicants requested the court to reject the charges, to consider
the criminal act minor, or at least to reduce the punishments. The
prosecutor appealed as regards the first three applicants, requesting
the court to consider the criminal act to be aggravated or at least
to increase the punishments.
On
14 December 2005 the Court of Appeal, referring to the Supreme
Court’s judgment of 29 November 2005 in the case NJA 2005 p.
805 (see below under “Relevant domestic law and practice”),
rejected the charges against the applicants on the ground that a
conviction would amount to a violation of their right to freedom of
expression as guaranteed by the Convention.
The
Office of the Prosecutor-General (Riksåklagaren)
appealed against the judgment to the Supreme Court (Högsta
domstolen) and requested it to convict the applicants of
agitation against a national or ethnic group, arguing that it would
not amount to a violation of Article 10 of the Convention in the
circumstances of the present case. The applicants disputed the
appeal.
On
6 July 2006 the Supreme Court convicted the applicants of agitation
against a national or ethnic group. The majority of judges (three out
of five) first considered decisive for the outcome of the case
whether the interference with the applicants’ freedom to
distribute the leaflets could be considered necessary in a democratic
society and whether the interference with their freedom of expression
could be deemed proportionate to the aim of protecting the group of
homosexuals from the violation that the content of the leaflets
constituted. The majority then held:
“In the light of the case-law of the European
Court of Human Rights regarding Article 10, in the interpretation of
the expression “contempt” in the provision regarding
incitement against a group, a comprehensive assessment of the
circumstances of the case should be made, where, in particular, the
following should be considered. The handing out of the leaflets took
place at a school. The accused did not have free access to the
premises, which can be considered a relatively sheltered environment
as regards the political actions of outsiders. The placement of the
leaflets in and on the pupils’ lockers meant that the young
people received them without having the possibility to decide whether
they wanted to accept them or not. The purpose of the handing out of
the leaflets was indeed to initiate a debate between pupils and
teachers on a question of public interest, namely the objectivity of
the education in Swedish schools, and to supply the pupils with
arguments. However, these were formulated in a way that was offensive
and disparaging for homosexuals as a group and in violation of the
duty under Article 10 to avoid as far as possible statements that are
unwarrantably offensive to others thus constituting an assault on
their rights, and without contributing to any form of public debate
which could help to further mutual understanding. The purpose of the
relevant sections in the leaflets could have been achieved without
statements that were offensive to homosexuals as a group. Thus, the
situation was in part different from that in NJA 2005 p. 805, where a
pastor made his statements before his congregation in a sermon based
on certain biblical quotations. The above-mentioned reasons taken
together lead to the conclusion that Chapter 16, Article 8 of the
Penal Code, interpreted in conformity with the Convention, permits a
judgment of conviction, given the present circumstances of this
case.”
The
minority (two judges) found that convicting the applicants would not
be proportionate to the aims pursued and would therefore be in
violation of Article 10 of the Convention. Hence, the minority wanted
to acquit the applicants but gave separate reasons for this
conclusion, at least in part. One of them was of the view that the
prosecution was not formulated in such a way that the Supreme Court
could take into consideration that the leaflets had been distributed
at a school and addressed to the pupils, while the other found it
natural that the leaflets had been aimed at pupils and agreed with
the majority that an overall assessment of the circumstances had to
be made.
The
first three applicants were given suspended sentences combined with
fines ranging from SEK 1,800 (approximately 200 euros (EUR)) to SEK
19,000 (approximately EUR 2,000) and the fourth applicant was
sentenced to probation.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Chapter
16, Article 8 of the Penal Code (Brottsbalken, SFS 1962:700)
provides that a person who, in a disseminated statement or
communication, threatens or expresses contempt for a national, ethnic
or other such group of persons with allusion to race, colour,
national or ethnic origin, religious beliefs or sexual orientation,
should be convicted of agitation against a national or ethnic group.
The offence carries a penalty of up to two years’ imprisonment.
If the offence is considered minor the penalty is a fine, and if it
is considered to be aggravated the penalty is imprisonment for no
less than six months and no more than four years.
Agitation
against homosexuals as a group was made a criminal offence by an
amendment of the law that came into effect on 1 January 2003.
According to the preparatory work on that amendment, as reproduced in
Government Bill 2001/02:59 (pp. 32-33), homosexuals constitute an
exposed group which is often subjected to criminal acts because of
their sexual orientation, and national socialist and other racist
groups agitate against homosexuals and homosexuality as part of their
propaganda. The preparatory work also stated that there were good
reasons to assume that the homophobic attitude that had caused
certain offenders to attack individuals on account of their sexual
orientation derived from the hate, threat and inflammatory propaganda
against homosexuals as a group that was spread by the majority of
Nazi and other right-wing extremist groups in the country.
The
Supreme Court, in its judgment of 29 November 2005 (case NJA
2005 p. 805) concerning statements made by a pastor during a sermon
which were deemed to have expressed contempt for homosexuals as a
group within the meaning of Chapter 16, Article 8 of the Penal Code,
considered that the legislation was in accordance with the
Convention. However, the Supreme Court found that, the word
“contempt” in the provision regarding incitement against
a group had to be interpreted more restrictively than the preparatory
work appeared to indicate if an application of the provisions that
was in line with the Convention was to be achieved. The Supreme Court
then found that an application of the provision that was in line with
the Convention would not permit a judgment convicting the defendant,
given the circumstances of the case, and rejected the charges.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicants complained that the judgment of the Supreme Court
constituted a violation of their freedom of expression as protected
by Article 10 of the Convention, which reads, in its relevant
parts, as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, ... for the
protection of the reputation or rights of others, ...”
A. Admissibility
The
Court notes that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The submissions of the parties
(a) The applicants
The
applicants maintained that their conviction constituted an
unjustified interference with their right to freedom of expression
under Article 10 § 1 of the Convention.
They
also argued, albeit in conjunction with their complaint under Article
7, that the law on agitation against a national or ethnic group was
so unclear that it was not possible for them to ascertain whether or
not their act was criminal.
Further,
in the applicants’ view, the text in the leaflets was not
disparaging or insulting to homosexuals and hence could not justify a
restriction of their right to freedom of expression pursuant to
Article 10 § 2.
The
applicants contended that the wording in the leaflets was not hateful
and did not encourage anyone to commit hateful acts. In their view,
the leaflets rather encouraged the pupils to discuss certain matters
with their teachers and provided them with arguments to use in these
discussions.
They
further submitted that freedom of speech should be limited only in
its content and not as regards how and where it was exercised,
pointing out that they were found guilty for agitation against a
national or ethnic group and not for trespassing or littering.
In
this connection they did not consider Swedish schools to be
relatively sheltered from the political actions of outsiders. On the
contrary, they alleged that Swedish schools had a tradition of
letting political youth parties spread their messages, especially
during election years.
The
applicants further stated that the pupils at the school in question
were between the ages of 16 and 19 and hence of an age to understand
the content of the leaflets.
Lastly,
they emphasised that their case should be compared to the Swedish
case NJA 2005 p. 805, in which a pastor who had offended homosexuals
in a sermon was acquitted by the Supreme Court of agitation against a
national or ethnic group with reference to Articles 9 and 10 of the
Convention.
(b) The Government
The
Government agreed that Article 10 of the Convention was applicable to
the present case and that the criminal conviction of the applicants
constituted an interference with their right to freedom of expression
as prescribed under the second section of that Article. However, the
Government submitted that the criminal conviction and the sentence
imposed were proportionate to the legitimate aims pursued, and thus
necessary in a democratic society.
The
Government stressed that the applicants were convicted of the crime
of agitation against a national or ethnic group, in accordance with
Chapter 16 Section 8 of the Penal Code, and that all five justices of
the Supreme Court reached the conclusion that this penalty was
prescribed by law within the meaning of Article 10 § 2 of the
Convention.
The
Government also contended that the interference with the applicants’
right to freedom of expression served legitimate aims within the
meaning of Article 10 § 2, with particular emphasis on “the
protection of the reputation or rights of others”, that is,
homosexuals as a group.
In
the Government’s opinion several factors in the present case
called for the conclusion that the domestic courts enjoyed a
particularly wide margin of appreciation when examining the issue of
whether the applicants’ conviction was proportionate to the
legitimate aims pursued. They also argued that the same factors
should be taken into account when examining whether the interference
was necessary in a democratic society.
In
this regard, the Government first pointed out that the circumstances
of the present case differed from those prevailing in several of the
cases where the Court had ruled on the proportionality of measures
interfering with the right to freedom of expression under Article 10.
Many of those cases had dealt with the conviction of journalists and
editors who had written or published “defamatory”
statements in newspaper articles. The Government thus submitted that
the Court’s abundant case-law insisting on the essential role
of a free press and of the press as a “public watchdog”
was not of immediate relevance to the present case.
Secondly,
the Government argued that it followed from the Court’s
case-law that the limits of acceptable criticism were wider as
regards, for example, governments, politicians or similar actors in
the public domain than for private individuals. In the Government’s
view, there was no reason why a group of individuals targeted by
certain statements owing to a common denominator which distinguished
them from other individuals – for example regarding sexual
orientation or religion – should be required to display a
greater degree of tolerance than a single individual in the
equivalent situation.
Thirdly,
the Government maintained that a certain distinction should be made
between the present case and cases dealing with the area of political
speech and statements made in the course of a political debate, where
freedom of expression was of the utmost importance and there was
little scope for restrictions. The reason for this was that the
leaflets were distributed in a school, that is, an environment
relatively sheltered from the political actions of outsiders.
Fourthly, the Government stressed that the Court had
emphasised that balancing individual interests protected under the
Convention that might well be contradictory was a difficult matter,
and that Contracting States must have a broad margin of appreciation
in this regard.
The
Government also argued that the outcome of the domestic proceedings –
where the applicants were convicted by the District Court, acquitted
by the Court of Appeal and convicted again by three out of five
justices of the Supreme Court with reference to, inter alia,
Article 10 § 2 of the Convention – clearly showed that the
task of balancing the different interests involved and interpreting
Swedish criminal legislation in the light of the Convention and the
Court’s case-law had proved particularly difficult and delicate
in the present case. They contended that in these circumstances the
national authorities, by reason of their direct and continuous
contact with the vital forces of their countries, were in a better
position than international judges to give an opinion on the exact
content of the concept “the protection of the reputation or
rights of others” and to assess whether a particular measure
would constitute an unjustified interference with the right to
freedom of expression under Article 10 § 2.
The
Government further emphasised that the domestic courts had made a
careful and thorough investigation of the requirements of the
Convention and the Court’s case-law and had carried out a
proportionality test in full conformity with the standards set by the
Convention and the principles embodied in Article 10.
(c) The third-party intervener
INTERIGHTS
(the International Centre for the Legal Protection of Human Rights)
and the International Commission of Jurists, referring to the Court’s
case-law, inter alia, submitted the following.
Despite
the prevalence of homophobic hate speech, there has been a failure to
adopt particularised standards to address the problem, at both the
European and the international political level. While the Court has
well developed case-law with respect to permissible restrictions
on freedom of expression, it has not had the opportunity to develop a
comprehensive approach to hate speech directed against a person or
class of persons because of their sexual orientation. The Court has,
however, repeatedly held that discrimination based on sexual
orientation is as serious as discrimination based on “race,
origin or colour” or sex. The Court has also found incompatible
with the Convention laws concerning same-sex conduct, the age of
consent, military service, adoption, child custody and inheritance
that discriminate on the basis of sexual orientation.
When
the Court comes to the “proportionality” analysis under
Article 10 § 2 of the Convention, the means of communication is
a relevant factor, since the impact of speech is proportional to the
size of the audience it is likely to reach. It follows that when the
impugned speech reaches a wider audience more caution is demanded in
using that means of communication. However, as the Court has noted,
where children and adolescents are concerned certain restrictive
measures may be necessary to prevent pernicious effects on the morals
of that group.
The
present case provides an opportunity for the Court to consolidate an
approach to hate speech directed against a person or class of persons
because of their sexual orientation that is elaborated in such a way
so as to ensure that they are protected from the harmful effects of
such expression. A clear analogy can be drawn between racism and
xenophobia – which have been the subject matter of much of the
Court’s jurisprudence – and sexual orientation.
Sexual
orientation should be treated in the same way as categories such as
race, ethnicity and religion which are commonly covered by
hate-speech and hate-crime laws, because sexual orientation is a
characteristic that is fundamental to a person’s sense of self.
It is, moreover, used as a marker of group identity.
When
a particular group is singled out for victimisation and
discrimination, hate-speech laws should protect those characteristics
that are essential to a person’s identity and that are used as
evidence of belonging to a particular group. Restrictions on freedom
of expression must therefore be permissible in instances where the
aim of the speech is to degrade, insult or incite hatred against
persons or a class of person on account of their sexual orientation,
so long as such restrictions are in accordance with the Court’s
well-established principles.
2. The Court’s assessment
The Court finds, and this is common ground between the
parties, that the applicants’ conviction amounted to an
interference with their freedom of expression as guaranteed by
Article 10 § 1 of the Convention.
Such
an interference will infringe the Convention if it does not meet the
requirements of Article 10 § 2. It should therefore be
determined whether it was “prescribed by law”, whether it
pursued one or more of the legitimate aims set out in that paragraph
and whether it was “necessary in a democratic society” in
order to achieve those aims.
(a) Lawfulness and legitimate aim
The
Court observes that the applicants were convicted of agitation
against a national or ethnic group in accordance with Chapter 16,
Article 8 of the Swedish Penal Code (see paragraph 18 above), which
at the time of the alleged crime included statements that threatened
or expressed contempt for a group of people with reference to their
sexual orientation. The Court hence considers that the impugned
interference was sufficiently clear and foreseeable and thus
“prescribed by law” within the meaning of the Convention.
The Court further considers that the interference served a legitimate
aim, namely “the protection of the reputation and rights of
others”, within the meaning of Article 10 § 2 of the
Convention.
(b) Necessity of the interference
It
remains for the Court to consider whether the interference was
“necessary in a democratic society”.
The
test of “necessity in a democratic society” requires the
Court to determine whether the interference complained of
corresponded to a “pressing social need”. In this
respect, the Contracting States enjoy a margin of appreciation in
assessing whether such a need exists, but it goes hand in hand with a
European supervision, embracing both the legislation and the
decisions applying it, even those given by an independent court. The
Court is therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom of expression
as protected by Article 10 (see, among other authorities, Pedersen
and Baadsgaard v. Denmark [GC],
no. 49017/99, § 68, ECHR 2004 XI).
In reviewing under Article 10 the decisions taken by
the national authorities pursuant to their margin of appreciation,
the Court must determine, in the light of the case as a whole,
including the content of the comments held against the applicants and
the context in which they made them, whether the interference at
issue was “proportionate” to the legitimate aim pursued
and whether the reasons adduced by them to justify the interference
are “relevant and sufficient” (see, among
other authorities, Pedersen and Baadsgaard, cited
above, §§ 69 and 70, and Kobenter and Standard Verlags
GmbH v. Austria, no. 60899/00, § 29, 2 November 2006).
The
Court further reiterates that freedom of expression is applicable not
only to “information” or “ideas” that are
favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb. As set
forth in Article 10, this freedom is subject to exceptions, which
must, however, be construed strictly, and the need for any
restrictions must be established convincingly (see, among
other authorities, Pedersen and Baadsgaard, cited
above, § 71).
The
Court notes that the applicants distributed the leaflets with the aim
of starting a debate about the lack of objectivity of education in
Swedish schools. The Court agrees with the Supreme Court that even if
this is an acceptable purpose, regard must be paid to the wording of
the leaflets. The Court observes that, according to the leaflets,
homosexuality was “a deviant sexual proclivity”
that had “a morally destructive
effect on the substance of society”. The leaflets also alleged
that homosexuality was one of the main reasons why HIV and AIDS had
gained a foothold and that the “homosexual lobby” tried
to play down paedophilia. In the Court’s opinion, although
these statements did not directly recommend individuals to commit
hateful acts, they are serious and prejudicial allegations.
Moreover,
the Court reiterates that inciting to hatred does not necessarily
entail a call for an act of violence, or other criminal acts. Attacks
on persons committed by insulting, holding up to ridicule or
slandering specific groups of the population can be sufficient for
the authorities to favour combating racist speech in the face of
freedom of expression exercised in an irresponsible manner (see Féret
v. Belgium, no. 15615/07, § 73, 16 July 2009). In this
regard, the Court stresses that discrimination based on sexual
orientation is as serious as discrimination based on “race,
origin or colour” (see, inter alia, Smith and Grady
v. the United Kingdom, nos. 33985/96 and 33986/96, § 97,
ECHR 1999 VI).
The
Court also takes into consideration that the leaflets were left in
the lockers of young people who were at an impressionable and
sensitive age and who had no possibility to decline to accept them
(see, mutatis mutandis, Handyside v. the United Kingdom,
7 December 1976, § 52, Series A no. 24). Moreover, the
distribution of the leaflets took place at a school which none of the
applicants attended and to which they did not have free access.
In
considering the approach of the domestic courts when deciding whether
a “pressing social need” existed, and the reasons the
authorities adduced to justify the interference, the Court
observes the following. The Supreme Court acknowledged the
applicants’ right to express their ideas while at the same time
stressing that along with freedoms and rights people also have
obligations; one such obligation being, as far as possible, to avoid
statements that are unwarrantably offensive to others, constituting
an assault on their rights. The Supreme Court thereafter found that
the statements in the leaflets had been unnecessarily offensive. It
also emphasised that the applicants had left the leaflets in or on
the pupils’ lockers, thereby imposing them on the pupils.
Having balanced the relevant considerations, the Supreme Court found
no reason not to apply the relevant Article of the Penal Code.
Finally,
an important factor to be taken into account when assessing the
proportionality of an interference with freedom of expression is the
nature and severity of the penalties imposed (see Ceylan
v. Turkey [GC], no. 23556/94, §
37, ECHR 1999-IV; Tammer v. Estonia,
no. 41205/98, § 69, ECHR 2001-I; and Skaÿka
v. Poland,
no. 43425/98, §§ 41 42,
27 May 2003). The Court notes that the applicants were not
sentenced to imprisonment, although the crime of which they were
convicted carries a penalty of up to two years’ imprisonment.
Instead, three of them were given suspended sentences combined with
fines ranging from approximately EUR 200 to EUR 2,000, and the
fourth applicant was sentenced to probation. The Court does not find
these penalties excessive in the circumstances.
Having
regard to the foregoing, the Court considers that the conviction of
the applicants and the sentences imposed on them were not
disproportionate to the legitimate aim pursued and that the reasons
given by the Supreme Court in justification of those measures were
relevant and sufficient. The interference with the applicants’
exercise of their right to freedom of expression could therefore
reasonably be regarded by the national authorities as necessary in a
democratic society for the protection of the reputation and rights of
others.
60. The foregoing considerations are
sufficient to enable the Court to conclude that the application does
not reveal a violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
The
applicants complained that they were convicted
of a crime not prescribed by law. They relied on
Article 7 of the Convention, which reads, in so far as relevant, as
follows:
“No one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a
criminal offence under national or international law at the time when
it was committed. ... “
62. Having regard to the finding under
Article 10 that the measure complained of was “prescribed by
law” within the meaning of the Convention (see paragraph 49
above), the Court finds that this part of the application should be
declared inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 a) and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint under Article 10
admissible and the remainder of the application inadmissible;
Holds unanimously that
there has been no violation of Article 10 of the Convention.
Done in English, and notified in writing on 9 February 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Dean Spielmann
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) concurring
opinion of Judge Spielmann joined by Judge Nußberger;
(b) concurring
opinion of Judge Zupančič;
(c) concurring
opinion of Judge Yudkivska joined by Judge Villiger.
D.S.
C.W.
CONCURRING OPINION OF JUDGE SPIELMANN
JOINED BY JUDGE
NUSSBERGER
I
have to confess that it is with the greatest hesitation that I voted
in favour of finding no violation of Article 10 of the Convention.
As
my colleague, Judge András Sajó, pointed out in his
dissenting opinion joined to the Féret v. Belgium judgment:
“Content regulation and content-based restrictions
on speech are based on the assumption that certain expressions go
“against the spirit” of the Convention. But “spirits”
do not offer clear standards and are open to abuse. Humans, including
judges, are inclined to label positions with which they disagree as
palpably unacceptable and therefore beyond the realm of protected
expression. However, it is precisely where we face ideas that we
abhor or despise that we have to be most careful in our judgment, as
our personal convictions can influence our ideas about what is
actually dangerous.”
In
paragraph 54 of the judgment the Court elaborates its reasoning step
by step, applying for the first time the principles relating to
speech offensive to certain groups to speech against homosexuals.
Firstly,
the reasoning endorses the position of the Swedish Supreme Court that
the aim of starting a debate about the lack of objectivity of
education in Swedish schools is an acceptable one.
Secondly,
the Court also admits that these statements did not encourage
individuals to commit hateful acts.
Thirdly,
and relying on the judgment of Féret v. Belgium,
the Court then reiterates that inciting to hatred does not
necessarily entail a call for an act of violence, or other criminal
acts, and that attacks on persons committed by insulting, holding up
to ridicule or slandering specific groups of the population can be
sufficient for the authorities to favour combating racist speech in
the face of freedom of expression exercised in an irresponsible
manner.
Finally,
the Court extends the findings in Féret to offensive
speech directed against homosexuals.
The
leaflets at issue undoubtedly contained statements that were totally
unacceptable. However, to equate the content of the leaflets to hate
speech within the meaning of our case-law needs robust justification.
In my opinion, establishing this link by mere reference to the Smith
and Grady precedent
(paragraph 55 in fine) is not sufficient. Indeed, the
offending statements should have been defined more precisely, bearing
in mind that, by virtue of Article 17 of the Convention,
“hate speech”, in the proper meaning of the term, is not
protected by Article 10. A careful, in-depth analysis of the aim of
the speech would have been necessary. As already indicated, the
Supreme Court considered the aim (starting a debate) as being
acceptable.
However, the domestic courts should have examined more thoroughly
whether behind the apparent aim there was any hidden agenda to
degrade, insult or incite hatred against persons or a class of
persons on account of their sexual orientation. In the case at hand
the Supreme Court, after having admitted that the applicants’
actions had a legitimate purpose, namely starting a debate on a
matter of public concern, characterised the impugned statements, not
without contradiction, as being “unnecessarily offensive.”
It justified the interference by acknowledging the applicant’s
right to express his ideas, while at the same time stressing that
freedoms and rights went hand in hand with obligations; one of which
was “to avoid, as far as possible, statements that are
unwarrantably offensive to others, constituting an assault on their
rights” (paragraph 57 of the judgment).
It
is submitted that this is a rather vague test which seems to me to be
inconsistent with the traditional and well-established case-law of
our Court going back to Handyside,
namely that “Freedom of expression constitutes one of the
essential foundations of [a democratic] society, one of the basic
conditions for its progress and for the development of every man.
Subject to paragraph 2 of Article 10, it is applicable not only to
"information" or "ideas" that are favourably
received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb the State or any
sector of the population. ...”
Still,
I agreed, albeit very reluctantly, to find no violation because the
distribution of the leaflets took place at a school which none of the
applicants attended and to which they did not have free access
(paragraph 56). Admittedly, the “place of distribution”
is neither an incriminating factor, part of the actus reus,
nor an aggravating circumstance in Swedish law. However, the factual
circumstances of the distribution have an impact regarding the scope
of the margin of appreciation in a case where, as is rightly pointed
out in paragraph 58, the penalties were not excessive or
disproportionate. As highlighted in paragraph 56, the leaflets were
in the lockers of young people who were at an impressionable and
sensitive age and who had no possibility to decline to accept the
leaflets. Noting that members of the LGBT community face deeply
rooted prejudices, hostility and widespread discrimination all over
Europe,
I would like also to mention in this context the Resolution adopted
by the Committee of Ministers on 21 October 2009 concerning
collective complaint No. 45/2007 and containing the findings of the
European Committee of Social Rights recognising that statements of a
homophobic nature contribute to an atmosphere of hostility and
violence against sexual minorities. Dealing with the provision of
sexual and reproductive health education in schools, in its report
finding a violation of Article 11 § 2 in the light of the
non-discrimination clause of the European Social Charter, the
European Committee of Social Rights criticised certain passages in
educational materials provided by the state which said that “...
[n]owadays it has become evident that homosexual relations are the
main culprit for increased spreading of sexually transmitted diseases
(e.g. ‘AIDS’), or ‘The disease [AIDS] has spread
amongst promiscuous groups of people who often change their sexual
partners. Such people are homosexuals, because of sexual contacts
with numerous partners, drug addicts, because of shared use of
infected drug injection equipment, and prostitutes’.”
It was rightly pointed out that “these statements stigmatise
homosexuals and are based upon negative, distorted, reprehensible and
degrading stereotypes about the sexual behaviour of all homosexuals.”
(Resolution CM/ResChS(2009)7, Collective complaint no. 45/2007 by the
International Centre for the Protection of Human Rights (INTERIGHTS)
v. Croatia). Moreover, in Recommendation CM/Rec(2010)5 of the
Committee of Ministers to member States on measures to combat
discrimination on grounds of sexual orientation or gender identity
(31 March 2010), specific action to ensure the full enjoyment of
human rights by LGBT persons is called for, albeit in accordance with
the principles of Article 10 of the Convention,
by recognising that non-discriminatory treatment by State-actors, as
well as, where appropriate, positive State measures for protection
against discriminatory treatment, including by non-State actors, are
fundamental components of the international system protecting human
rights and fundamental freedoms.
It
should also not been forgotten that a real problem of homophobic and
transphobic bullying and discrimination in educational settings may
justify a restriction of freedom of expression under paragraph 2 of
Article 10. Indeed, according to studies carried out across
member States and supported by some government research, LGBT
students suffer from bullying from both peers and teachers.
It
is against this background that I am satisfied, on balance, that the
conviction concerning the distribution at a school of leaflets
containing statements directed against the homosexual community did
not violate Article 10 of the Convention.
CONCURRING OPINION OF
JUDGE BOŠTJAN M.
ZUPANČIČ
It was with some hesitation that I voted for no
violation of Article 10 of the Convention. I
would agree with the finding in this case without any impediment were
the judgment based predominantly on its paragraph 56. There we
maintain that it ought to be considered “that the leaflets
were left in the lockers of young people who were at an
impressionable and sensitive age and had no possibility to decline to
accept them. ... Moreover, the distribution of the leaflets took
place at a school which none of the applicants attended and to which
they did not have free access.”
In
this respect, the case before us may relevantly be compared to Snyder
v. Phelps et al, 562 U.S.___(2011), decided last year by the
Supreme Court of the United States. In Snyder an
anti-homosexual demonstration far more insensitive than the events in
the case at hand took place about 300 metres from the church where
the funeral of Mr. Snyder’s son, Corporal Matthew Snyder, who
was killed in Iraq in the line of duty, was taking place. There is no
need to repeat here the contents of the offensive picketing signs
displayed by the members of the congregation of the Westburo Baptist
Church, who were in the habit of picketing military funerals in order
to communicate their belief that God hates the United States for its
tolerance of homosexuality, particularly in America’s military.
It
is interesting to note that the American Supreme Court takes a very
liberal position concerning the contents of the controversial
messages. That the statement is arguably of inappropriate or
controversial character “... is irrelevant to the question
of whether it deals with a matter of public concern”.In
other words, freedom of speech in Snyder – a fortiori as
a tort case, not a criminal case – was not to be impeded by
considerations of proportionality as long as the statement in
question could be “fairly considered as relating to any
matter of political, social, or other concern to the community”.
“Speech on public issues occupies the highest rank of the
hierarchy of First Amendment values, and is entitled to special
protection”.
Moreover,
the American Supreme Court has set a higher standard for the
applicable law in such cases to be facially constitutional. First, it
must avoid content discrimination (i.e., the State cannot
forbid or prosecute inflammatory speech only on some
“disfavoured” subjects) and, second, it must avoid
viewpoint discrimination (i.e., forbidding or prosecuting
inflammatory speech that expresses one particular view on the
subject).
Thus, for example, the legislator may impose a general ban on the
public use of rude racial slurs; it cannot, however, criminalise
their use solely in race-related public discourse, or their use in
order to express only a racist viewpoint. It is interesting to note
that if this American double test were applied to the present case,
the applicable law (Chapter 16, Article 8 of the Swedish Penal Code)
would not pass muster on either count, especially the second: had the
applicants defended homosexuality and railed against “wicked
homophobes” in their leaflets, they would probably not have
been convicted.
In
our case we have relied on a different kind of logic as did the
Swedish Supreme Court, among others (although divided three to two),
which considered the relatively inoffensive language of the leaflets
to be a cause for criminal prosecution and eventually for
conviction and punishment.
It
is interesting to note that speech inflaming national, racial, etc.
hatred was first incriminated in the 1952 Criminal Code of Communist
Yugoslavia and this has since been copied by many other
jurisdictions, and cited in leading American case books on criminal
law, for example. Therefrom developed the notion of hate speech
subject to criminal prosecution where one protected class of people
was “unwarrantably offensive to others thus constituting an
assault on their rights, and without contributing to any form of
public debate which could help to further mutual understanding.”
If we compare the two cases we might find that the American approach
to free speech deriving from the First Amendment is perhaps
insensitive. On the other hand, we might certainly also conclude that
the above quotation from the Swedish Supreme Court judgment of 6 July
2006 demonstrates an oversensitivity in collision with free speech
postulates.
This
in my opinion is a culturally predetermined debate and is not
necessary in a situation where even the Swedish Supreme Court, in its
famous pastor’s sermon speech case (NJA 2005 p.805),
acquitted the defendant, considering that his conviction would be
contrary to the Convention.
In
comparative constitutional law terms, the Swedish pastor’s
sermon case would be based on the notion of a captive audience.
A
captive audience is one that finds itself in an inescapable situation
and is bombarded with information that is offensive to some of the
members of that audience. If a church audience is in that sense
captive because an individual cannot escape being subjected to a
verbal assault, then in the case of a school audience, where leaflets
were distributed – as we do emphasise in § 56 – in
the young people’s lockers, that is certainly a decisive
consideration. A church is in essence a public place accessible to
everybody. School grounds, on the other hand, are more protected and
are in this sense a non-public place, requiring an intrusion in order
to distribute any information of whatever kind that has not been
previously approved by the school’s authorities. Coming back to
the Supreme Court of the United States, it has held that “the
undoubted freedom to advocate unpopular and controversial views in
schools and classrooms must be balanced against the society’s
countervailing interest in teaching students the boundaries of
socially appropriate behaviour”.
Admittedly
high-school grounds may not be seen primarily as the setting for a
captive audience in the same sense as in the pastor’s sermon
case, yet they are definitely a protected setting where only those
authorised to distribute any kind of information may do so. This is
the key difference between the pastor’s sermon case of the
Swedish Supreme Court and the case before us and this is why I
maintain that I would be in perfect agreement with the judgment were
it based solely (or at least predominantly) on the considerations
contained in paragraph 56 of the judgment.
For
my controversial concurring opinion in von Hannover v. Germany,
I have been repeatedly attacked for the phrase mentioning the
fetishisation of the freedom of the press under American influence.
Recent events in the United Kingdom, where serious abuses on the part
of the Murdoch press have been uncovered, tend to vindicate the
position taken in the von Hannover case.
Nevertheless,
we seem to go too far in the present case – on the grounds of
proportionality and considerations of hate speech – in limiting
freedom of speech by over-estimating the importance of what is being
said. In other words, if exactly the same words and phrases were to
be used in public newspapers such as Svenska Dagbladet, they would
probably not be considered as a matter for criminal prosecution and
condemnation.
CONCURRING OPINION OF JUDGE YUDKIVSKA
JOINED BY JUDGE
VILLIGER
I
have no difficulties in finding that Article 10 was not violated.
However,
I regret that the Court missed an opportunity to “consolidate
an approach to hate speech” against homosexuals, as commented
by the third-party intervener. Further, it was recognised that
“although the Court has not yet dealt with this aspect,
homophobic speech also falls into what can be considered as a
category of “hate speech”,
which is not protected by Article 10”.
Although
there is no agreed definition of hate speech in international law,
the Committee of Ministers of the Council of Europe was very clear in
its Recommendation No. R (97) 20: the term “hate speech”
is to be “understood as covering all forms of expression
which spread, incite, promote or justify racial hatred, xenophobia,
anti-Semitism or other forms of hatred based on intolerance...”.
In
the present case the applicants described homosexuality as a “deviant
sexual proclivity” and accused homosexuals of having a “morally
destructive effect on the substance of society” and being the
main reason for the spread of HIV and AIDS. To my mind, such
accusations clearly match the above definition.
Yet
in paragraph 54 the majority affirm that statements which do not
“directly recommend individuals to commit hateful acts”,
can be described as “serious and prejudicial allegations”,
not as hate speech.
This
appears to be the American approach, where hate speech is protected
until it threatens to give rise to imminent violence. This is a very
high threshold, and for many well-known political and historical
reasons today’s Europe cannot afford the luxury of such a
vision of the paramount value of free speech.
Obviously, as the Court has often emphasised, “freedom
of expression constitutes one of the essential foundations of a
democratic society and one of the basic conditions for its progress
and each individual’s self-fulfilment” (see, among many
other authorities, Rekvényi v. Hungary [GC],
no. 25390/94, § 42, ECHR 1999 III). Nevertheless, the
Court has also held that “abuse of freedom of expression is
incompatible with democracy and human rights and infringes the rights
of others” (see Witzsch v. Germany
(dec.), no. 4785/03, 13 December 2005).
I
do not think that accusations that homosexuals are deviants and
responsible for the spread of HIV and AIDS are in harmony with the
Convention’s values. There is a fine line between verbal abuse
and incitement to violence, and such accusations are capable of
prompting aggression against them. Although the majority give weight
in paragraph 54 to the applicants’ intention to start “a
debate about the lack of objectivity of education in Swedish
schools”, it is hard to see the wording of the leaflets simply
as starting a debate on an issue concerning a matter of public
interest; it appears rather that the applicants wanted to disseminate
their views among teenagers, who are vulnerable to different kinds of
influence.
The
majority found that the applicants’ conviction in the present
case served a legitimate aim, namely “the protection of the
reputation and the rights of others”. As a matter of fact,
cases like the present one should not be viewed merely as a balancing
exercise between the applicants’ freedom of speech and the
targeted group’s right to protect their reputation. Hate speech
is destructive for democratic society as a whole, since “prejudicial
messages will gain some credence, with the attendant result of
discrimination, and perhaps even violence, against minority groups”,
and therefore it should not be protected.
In
the case of Norwood v. the United Kingdom, although in what
was perhaps a more serious context,
the Court found that “a general, vehement attack against a ...
group, linking the group as a whole with a grave act of terrorism, is
incompatible with the values proclaimed and guaranteed by the
Convention, notably tolerance, social peace and non-discrimination”
and thus fell outside the protection of Article 10. Linking the whole
group in the present case to the “plague of the twentieth
century” should not be granted the protection of Article 10
either.
Our
tragic experience in the last century demonstrates that racist and
extremist opinions can bring much more harm than restrictions on
freedom of expression. Statistics on hate crimes show that hate
propaganda always inflicts harm, be it immediate or potential. It is
not necessary to wait until hate speech becomes a real and imminent
danger for democratic society.
In
the words of the prominent US constitutionalist Alexander Bickel:
“... This sort of speech constitutes an assault. More, and
equally important, it may create a climate, an environment in which
conduct and actions that were not possible before become possible ...
Where nothing is unspeakable, nothing is undoable.”
