Friday 14 November 2008

Hate Speech Calendar Judgment

A calendar that promotes hate speech. That was the object of attention in a recent judgment of the Court in the case of Balsyte-Lideikiene v. Lithuania. Although handed down already two weeks ago, it is very worthwhile to read. The case concerns the so-called Lithuanian calendar, which in its 2000 version contained several extremely negative statements about Jews and Poles. The most appalling of which is probably that Jews are accused of genocide of the Lithuanian nation. After complaints from the Lithuanian parliament and from neighbouring countries, the authorities instituted an investigation, in the context of which expert opinions were commissioned on the question whether the calendar "promoted ethnic, racial or religious hostility". The experts came from different fields: history, psychology, policital science, and library science. The applicant was fined by the national courts, which based themselves to a considerable extent on the experts' reports.

The European Court found, by six votes to one, that Article 6(1) ECHR had been violated. This happened on account of the fact that the applicant had never been allowed to question the experts, even though the national judiciary extensively relied on their findings. The Dutch judge, Egbert Myjer, has attached an intriguing dissenting opinion. One of his main arguments is that the assessment of whether a certain expression promotes hatred is "first and foremost a legal question". Thus the expert opinions, in his view, could not reasonably have contributed to the national court's decision-making. He contrasts this to other situations, where technical or medical issues are at stake or where one needs to check whether a painting is a real Rembrandt or not! Personally, I fail to see what the real difference is in this sense between expertise from those sciences and the ones in this case. It reminds me a bit of former OSCE High Commissioner on National Minorities, Max van der Stoel, who famously claimed that he knew a minority when he saw one.

The Court also found, unanimously, that Article 10 ECHR (freedom of expression) had not been violated. In the latter context the Court explicitly referred to the specific Lithuanian historic context and to the country's international obligations (such as the obligation under UN human rights treaties) to combat advocacy of hatred.