NIX v. GERMANY DECISION
15
their discretion reasonably, carefully and in good faith. The Court must rather
examine the interference in the light of the case as a whole and determine whether it
was proportionate to the legitimate aim pursued and whether the reasons adduced by
the national authorities to justify it were relevant and sufficient. In doing so, the Court
has to satisfy itself that these authorities applied standards which were in conformity
with the principles embodied in Article 10 and relied on an acceptable assessment of
the relevant facts.”
46. Another principle that has been consistently emphasised in the
Court’s case-law is that there is little scope under Article 10 § 2 of the
Convention for restrictions on political expression or on debate on questions
of public interest (ibid., § 197, with further references). At the same time,
the Court has always been sensitive to the historical context of the High
Contracting Party concerned when reviewing whether there exists a pressing
social need for interference with rights under the Convention (ibid., § 242).
47. 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 (ibid., § 243, with further references). The Court considers that the
legislature’s choice to criminally sanction the use of Nazi symbols, to ban
the use of such symbols from German political life, to maintain political
peace (also taking into account the perception of foreign observers), and to
prevent the revival of Nazism (see paragraph 30 above) must be seen
against this background.
48. The Court observes that, in accordance with Article 86 § 3 of the
Criminal Code, to which Article 86a § 3 of the Criminal Code refers, no
criminal liability arises where the use of such symbols is meant to serve
civil education, to combat unconstitutional movements, to promote art or
science, research or teaching, to report on current or historical events, or
serve similar purposes (see paragraph 29 above). In addition, the domestic
courts have restricted the scope of Article 86a of the Criminal Code and
exempted uses of the respective symbols which do not contravene the
provision’s purpose, including where the opposition to the ideology
embodied by the symbol used is obvious and clear, not least in order to
sufficiently respect the right to freedom of expression in protesting against
the revival of Nazi ideas (see paragraph 32 above). While the critical use of
the respective symbols does not suffice to give rise to the possibility of
exemption from criminal liability under domestic law, in line with one of
the provision’s purposes (that of banning the respective symbols from
German political life altogether), the Court considers that exemption from
criminal liability where opposition to the ideology embodied by the used
symbols is “obvious and clear” (see paragraph 32 above) constitutes an
important safeguard for the right to freedom of expression.
49. Turning to the circumstances of the applicant’s conviction, 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
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