Holocaust Denial before the European Court of Human Rights: Evolution of an Exceptional Regime

Litigation concerning domestic restrictions on Holocaust denial has produced a 30-year long jurisprudence of the European Court and European Commission of Human Rights. In spite of solemnly-declared principles on free speech, Strasbourg organs have progressively developed in this regard an exceptional regime based on the ‘abuse clause’ envisaged under Article 17. Had this detrimental treatment remained confined to its original sphere, it could have perhaps been considered as a negligible issue. However, the scope of the abuse clause was extended to encompass a growing class of utterances, including the denial of historical facts other than the Nazi genocide. This piece begins by examining the Strasbourg case law on Holocaust denial, with a view to enucleating the effects, scope and conditions of applicability of the special regime based upon Article 17. Once the shortcomings implied by this detrimental discipline have been exposed, it shall be argued that all expressions should be dealt with under the ordinary necessity test, in which the abuse clause ought to operate as interpretative principle. In the alternative, and as a minimum, the Court should pay due regard to the political and social context of the country where restrictions on free speech were enforced, setting aside the uniquely harsh treatment reserved to Holocaust denial.