16
NIX v. GERMANY DECISION
have any other meaning than that of Nazi ideology (compare and contrast
the cases of Vajnai v. Hungary, no. 33629/06, §§ 52 et seq., ECHR 2008,
and Fratanoló v. Hungary, no. 29459/10, § 25, 3 November 2011,
concerning the use of the red star). It takes note of the fact that domestic
courts have, on another occasion, held that showing a picture of Himmler in
SS uniform in itself constituted the use of symbols of unconstitutional
organisations within the meaning of Article 86a of the Criminal Code (see
paragraph 33 above).
50. The applicant must have been aware of the pertinent provision and
case-law of the domestic courts, not least because he had been convicted of
the same offence for having published a picture of Angela Merkel in Nazi
uniform with a swastika armband and a painted Hitler-moustache some six
weeks before he published the blog post at issue in the present case (see
paragraph 13 above).
51. The Court accepts that the applicant, by displaying the picture of
Himmler in SS uniform with a swastika armband in his blog post, did not
intend to spread totalitarian propaganda, to incite violence, or to utter hate
speech, and that his expression had not resulted in intimidation. It
acknowledges that there have been various press reports detailing
complaints that children of persons receiving social welfare and children
with a migrant background are discriminated against in school and by
employment offices (see paragraph 11 above). The applicant, through his
series of six blog posts (see paragraphs 4-10 above), may have intended to
contribute to a debate of public interest.
52. Thus, the question arises whether the domestic courts would have
been required to examine the blog post of 23 March 2014, which led to the
applicant’s conviction, together with his other blog posts concerning the
interaction between the employment office and his daughter. The Court
observes that the post in question, which was the third on that matter, did
not contain any reference or visible link to the applicant’s earlier posts (see
paragraphs 4-8 and 10 above). It was not immediately understandable for a
reader of the post that it was part, or meant to be part, of a series of posts
that may have been intended to contribute to a public debate. The domestic
courts cannot be faulted for having considered only the specific utterance
that was evident to the reader, that is the picture of Himmler in SS uniform
with a swastika armband, the quoted statement, and the text written
underneath, when assessing the applicant’s criminal liability.
53. In the text of the blog post, which was addressed to the staff member
of the employment office handling the file of the applicant’s daughter, the
applicant criticised the fact that various queries he had made to the
employment office had remained unanswered and that the authorities were
not providing free meals to his daughter and were not paying for her
commuting to school (see paragraph 8 above). Moreover, he criticised the
employment office for not knowing the needs of children and thus hindering
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