The use of symbols of Nazi ideology in the case-law of the European Court of Human Rights: Analysis based on the case of Nix v. Germany and the case of Šimunić v. Croatia

Abstract

The article deals with the use of symbols of Nazi ideology in the case-law of the European Court of Human Rights. At present, symbolic representations of the past order, whether the Nazi swastika, the Communist hammer and sickle or any other symbol, have been prohibited from the public sphere in some European states. Against this background, the question arises as to what are the limits to interference with the freedom of speech. In Nix v. Germany, the European Court of Hu-man Rights notes that the criminalisation of the use of Nazi symbols is to prevent the revival of Nazism and maintain political peace. As to whether the interference was necessary, which required it to be a response to a pressing social need, the Court considered that Germany’s decision to crimin-ally sanction the use of Nazi symbols must be seen in the light of their historical role and experience with Nazism and the desire to prevent its revival. The Court added that this “gratuitous use of sym-bols was exactly what the provision sanctioning the use of symbols of unconstitutional organisations was intended to prevent, as it was meant to pre-empt anyone becoming used to certain symbols by banning them from all means of communication”. More broadly, the case Nix v. Germany illustrates the structured proportionality analysis in relation to freedom of expression.
The article analyses also the case of Šimunić v. Croatia, which concerns a footballer who was convicted by the Croatian authorities of a minor criminal offence for addressing messages to specta-tors of a football match, the content of which expressed or enticed hatred on the basis of race, nation-ality, and faith. In fact, he used an official greeting of the Ustashe movement and totalitarian regime of the Independent State of Croatia. The Court pointed out that the applicant chanted a phrase used as a greeting by a totalitarian regime at a football match in front of a large audience to which the audience replied and that he did so four times. In the case of Šimunić v. Croatia, the Court reiterates that the nature and severity of the penalty imposed are factors to be taken into account when assess-ing the proportionality of the interference with the freedom of speech.
Finally, the article contains the conclusions of the analysis on case-law of the European Court of Human Rights.