12
NIX v. GERMANY DECISION
what the appellant dictates, or copies observations written by the appellant
(ibid.).
COMPLAINT
37. The applicant complained under Article 10 of the Convention about
his criminal conviction for the offence of using the symbols of
unconstitutional organisations – in this instance, the picture of Himmler in
SS uniform wearing a swastika armband – in a post on his blog on 23 March
2014.
THE LAW
38. The Court notes that the Federal Constitutional Court found the
applicant’s constitutional complaint to be inadmissible without, however,
indicating with which admissibility requirement the applicant had failed to
comply (see paragraph 28 above). It observes that the inadmissibility of the
constitutional complaint is not evident from the case-file (compare and
contrast Colak and Others v. Germany (dec.), nos. 77144/01 and 35493/05,
11 December 2007; and Karabulut v. Germany (dec.), no. 59546/12, § 40,
21 November 2017). In particular, it is not obvious that the applicant failed
to comply with a particular formal requirement for lodging his
constitutional complaint, as he lodged that complaint within the one-month
time-limit under domestic law after service of the Court of Appeal’s
decision (see paragraphs 25 and 26 above) and the Court of Appeal had
entered into an assessment of the merits of his appeal on points of law (see
paragraph 25 above and Gäfgen v. Germany [GC], no. 22978/05, § 143,
ECHR 2010). The Court is not in a position to establish the reason why the
applicant’s constitutional complaint was considered inadmissible (see
Annen v. Germany, no. 3690/10, § 39, 26 November 2015). It can, however,
leave open whether the applicant exhausted domestic remedies as required
by Article 35 § 1 of the Convention, because the present application is, in
any event, inadmissible because it is manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention for the reasons set out
below.
39. The applicant argued that Article 86a § 1 of the Criminal Code (as
interpreted by the domestic courts) requiring that a person using a symbol of
an unconstitutional organisation clearly distance himself or herself from
Nazi ideology in order to avoid criminal liability constituted an interference
with freedom of expression that was not necessary in a democratic society.
A milder but similarly effective measure would be to sanction only such use
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