On 9 April 2018, three men hung up flags adorned with swastikas and the inscription “We are back!” at the Peace and Human Rights Centre, known as the “Archive”, in Kristiansand, Norway. The three men are members of the neo-Nazi Nordic Resistance Movement.
The men stated that their actions were intended to mark their support of “the whole of Hitler’s national socialist project”. They were charged under paragraph 185 of the Norwegian Penal Code (Penal Code) which criminalises hate speech. The case was first heard by Kristiansand District Court, resulting in conviction.[1] The convictions were quashed by the Agder Court of Appeal in its judgment.[2] The prosecutor stated in a press release that he has decided not to appeal the judgment to the Supreme Court and confirmed this to the non-governmental organisation Minority Protection Initiative.
EXAMINING THE ADGER COURT OF APPEAL’S JUDGMENT
The foundation of the Adger Court of Appeal’s judgment was the heavily dissented judgment of the Supreme Court of 17 December 2002, referred to as the “Boot Boys” case.[3] This case established that support of Nazi ideology alone did not necessarily “...include acceptance of mass extinction or serious violence towards Jews or other groups” and thus that general support of Nazism did not, in isolation, meet the threshold of paragraph 185 of the Penal Code. Following criticism of the judgment from the UN Committee on the Elimination of Racial Discrimination, the Supreme Court made it clear in a subsequent judgment on 30 March 2012 that no court in Norway was to apply the precedent set out in the Boot Boys case.[4]
The Adger Court of Appeal considered this reservation applicable to the current case, in spite of widespread criticism and the instruction by the Supreme Court that no court was to apply the threshold established in that case. They held firstly that, in light of the context, the subject of the phrase “We are back!” could only be interpreted as referring to Nazis. The Adger Court of Appeal relied upon the date, signifying the anniversary of the Nazi invasion of Norway, and the location, the former Gestapo headquarters in Norway.
The Adger Court of Appeal emphasised that although the link to Nazism was established, the expression had to be interpreted as targeting a specific person or group to meet the threshold for hate speech. As the banners did not explicitly make reference to any group or person, they examined whether the context would allow the Court to infer a target. The Adger Court of Appeal found that it could not establish with certainty that the violence committed at the Archive during World War II targeted specific groups, and that the location had therefore symbolised a “threat directed towards the entire Norwegian population”. Moreover, they found that the District Court had been wrong to assume that, objectively, support for Nazism necessarily includes “racial nationalism” or “hatred of Jews”. The Adger Court of Appeal found such a view of Nazism to be “niche” and not one that the objective person would hold. They held that the expression was not targeted, and that it could only be classified as general support of Nazism.
The Adger Court of Appeal concluded that, although the banners could be classified as a “breach of integrity”, expressing general support for a “political ideology” fell short of penalisation under paragraph 185 of the Penal Code. Therefore, they held that their expression was protected by the right to freedom of expression, as enshrined in paragraph 100 of the Norwegian Constitution and article 10-2 of the European Convention on Human Rights (ECHR).
ASSESSING THIS JUDGMENT AGAINST EUROPEAN AND INTERNATIONAL HUMAN RIGHTS LAW
The acquittal of these individuals evidently hinged upon the principle that expression which supports the Nazi ideology will be protected by article 10 of the ECHR, unless it is explicitly directed at particular groups.
At a regional level, this judgment calls into question the application of article 17 of the ECHR. This provision arguably stands to prevent judgments such as the current from materialising, requiring that: “Nothing in [the ECHR] may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in [the ECHR].” The European Commission of Human Rights has repeatedly recognised that article 17 applies to Nazism promotion, preventing individuals from relying upon their article 10 rights to engage in such activity.[5]
At an international level, the legal protection of Nazism advocacy contravenes multiple international human rights obligations. Both article 20 of the International Covenant of Civil and Political Rights, and article 4 of the International Convention on the Elimination of Racial Discrimination obligate states to prohibit the advocacy of ideas based upon racial superiority and nationalism.
Yet, the Adger Court of Appeal has done quite the opposite. Far from prohibit, they have shielded the advocacy of Nazism - an ideology rooted in racial superiority and nationalism - with the cloak of the law; favouring the applicants’ right to freedom of expression by defining Nazism as a “political ideology” within the scope of article 10 of the ECHR. In so doing, they have evaded national, regional, and international law by relying upon a narrow definition of hate speech. Requiring a specific group of persons to be explicitly targeted allows the promotion of Nazism more broadly to escape legal condemnation.
THE IMPORTANCE OF EXCLUDING NAZI IDEOLOGY FROM THE AMBIT OF FREEDOM OF EXPRESSION
This judgment strikes a blow to Norway’s ability to tackle their increasing rates of hate crime. The Oslo district police department has reported a 115% increase in hate crimes since 2015. In light of the loophole created by the Adger Court of Appeal, through which far-right extremist groups can avoid prosecution under paragraph 185, the ability to tackle these crimes is curtailed.
With the European Union Agency for Fundamental Rights reporting a severe increase in hate crime across the EU in recent years, the implications of this judgment transcend Norway’s borders. It must not be accepted that the advocacy of ideologies rooted in hatred and violence against minority groups are political ideologies protected by article 10 of the ECHR. To do otherwise sends an unsettling message to society that such hatred is protected by law.
But until such judgments are challenged, European and international law on freedom of expression will be ill-equipped to deal with new vessels for old hatreds.
[1] Case number 19-095443MED-KISA/04.
[2] Case number 19-152301AST-ALAG.
[3] Case number HR-2001-1428.
[4] Case number HR-2012-689-A.
[5] B.H., M.W., H.P. and G.K. v. Austria, No. 12774/87, decision of the Commission of 12 October 1989; see also Nachtmann v. Austria, No. 36773/97, decision of the Commission of 9 September 1998, and Schimanek v. Austria (dec.), No. 32307/96, 1 February 2000.
Karen is a 2020 LLB graduate of the University of Edinburgh, and current Masters student in Human Rights at the London School of Economics and Political Science and research assistant for the Campaign for Freedom of Information.
Luca is a final year student at the University of Edinburgh, specialising in media and information law, constitutional law and civil liberties.
Rebecca is a 2020 LLB graduate of the University of Edinburgh, and current freelance legal researcher. Her areas of interest focus particularly on human rights, criminal law and rule of law concerns.
