European Human Rights Court: Germany is allowed to prohibit comparison between Abortion and the Holocaust

By J.C. von Krempach, J.D. | January 16, 2011

Last week the European Court of Human Rights (ECtHR) issued a decision on the application of Hoffer and Annen vs. Germany (Applications nos. 397/07 and 2322/07), a case concerning the freedom of speech of pro-lifers.

On 26 May 1999 the Nuremberg-Fürth Regional Court (Landgericht) had convicted the applicants of defamation to the detriment of a widely known abortionist, Dr Andreas Freudemann and imposed a pecuniary fine on them. The Regional Court considered that the statement “then: Holocaust / today: Babycaust” in a pamphlet that had been distributed by the two applicants, had to be interpreted as putting the “lawful activity” performed by Dr Freudemann on a level with the Holocaust, a synonym for the most abhorrent and unjustifiable crimes against humanity. According to the Regional Court, this statement was not covered by the applicants’ right to freedom of expression, as it debased the doctor in a way which had not been necessary in order to express the applicants’ opinion. This judgment was confirmed by the Bavarian Court of Appeals and, in the last instance by the German Federal Constitutional Court.

A newspaper interview (in German) with Dr Freudemann (who reportedly slaughters 15-20 children per day, or 4000 per year, which, it must be surmised, does not leave him time for any other professional activity than that of killing unborn children) is found here.

In their complaint to the ECtHR, the two applicants alleged, in particular, that their criminal convictions violated their right to freedom of expression and that the length of the proceedings before the Federal Constitutional Court was in breach of the “reasonable time” requirement of Article 6 § 1 of the European Convention on Human Rights (ECHR).

The ECtHR found a violation of Article 6 § 1 of the Convention, but dismissed the applicants’ allegation of a violation of their fredom of expression.

The Court noted that, in their pamphlet, the two applicants had described Dr Freudemann as a “’Killing specialist’ (German: Tötungsspezialist) for unborn children”, and his activity as “the murder of children in their mother’s womb” , and that these statements had been deemed acceptable by the German Courts. But with regard to the comparison made between Dr Freudemann’s activity and the Nazi Holocaust, the Court considered as follows:

“The impact an expression of opinion has on another person’s personality rights cannot be detached from the historical and social context in which the statement was made. The reference to the Holocaust must also be seen in the specific context of the German past.
The Court therefore accepts the domestic courts’ conclusion that the impugned statement constituted a very serious violation of the physician’s personality rights.
In conclusion, the Court considers that the domestic courts have duly balanced the applicants’ right to freedom of expression against the physician’s personality rights. It follows that the reasons relied on by the domestic courts were sufficient to show that the interference complained of was “necessary in a democratic society”. Moreover, the relatively modest criminal sanctions imposed were proportionate. Having regard to all the foregoing factors, and in particular the margin of appreciation afforded to the State in this area, the Court considers that the domestic courts struck a fair balance between the competing interests involved.”

The conclusion is: the right of pro-lifers to describe abortion as the “murder of children”, and an abortionist as “killing specialist” had been explictly recognised already by the German law courts, and thus was not subject to any assessment by the ECtHR. However, the ECtHR recognised Germany’s margin of appreciation to prohibit comparisons between abortion and the Nazi Holocaust in view of the specific context of Germany’s past.

Regrettably, the ECtHR failed to provide any argument why such a prohibition could be “necessary in a democratic society”. One would rather have believed that what is “necessary in a democratic society” is the protection of its weakest and most helpless members, i.e. the unborn children, against arbitrary killings.

In any case, pro-lifers have themselves come to the conclusion that comparisons between abortion and the Nazi Holocaust are inappropriate. We will tell you more in one of our next posts…

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