ADDITIONAL DISSENTING OPINION OF JUDGE SILVIS, JOINED BY JUDGES CASADEVALL, BERRO AND KŪRIS

1. This additional dissenting opinion concerns mainly the majority’s vote in favour of not applying Article 17 of the Convention. As is stated in the joint dissenting opinion on the finding of a violation under Article 10 of the Convention, some of the judges subscribing to that dissent would have preferred the application of Article 17. I am among those judges respectfully in disagreement with the majority on this issue.

2. It is true that, in relation to genocide denial and (other) forms of hate speech, the Strasbourg approach to Article 17 has not been uniform. In his essay in honour of Sir Nicolas Bratza, Judge Villiger grouped the existing cases into four categories, with four different approaches.

3. The first of these consists of the direct application of Article 17 so that the application is there and then declared inadmissible. An illustration of this is the oft-cited decision of the Commission in Glimmerveen and Hagenbeek v. the Netherlands (nos. 8348/78 and 8406/78, Commission decision of 11 October 1979, Decisions and Reports (DR) 18, p. 187). The applicants were proponents of strongly racist views, with a political programme which the Commission considered contrary to the text and spirit of the Convention, and which would contribute to the destruction of human rights. By reason of Article 17, the applicants could not claim the protection of Article 10. The same approach has been taken by the Court in certain cases, notably Norwood v. the United Kingdom ((dec.), no. 23131/03, ECHR 2004-XI). Garaudy v. France ((dec.), no. 65831/01, ECHR 2003-IX) is another example of this approach, where the analysis ends with the finding that Article 17 applies, and the complaint under Article 10 is rejected as inadmissible ratione materiae . This approach remains current, as is shown by recent case-law (for example, Kasymakhunov and Saybatalov v. Russia , nos. 26261/05 and 26377/06, 14 March 2013). It is worth noting that the Kasymakhunov and Saybatalov case can be seen as a response to the criticism that once Article 17 enters the scene, it signals the absence of any proper legal analysis. The Court set out its assessment of the applicants’ political views (those of the fundamentalist group Hizb ut-Tahrir) in some detail, giving its reasons for withdrawing the protection of Articles 9, 10 and 11 through the application of Article 17.

4. The second approach is a combined approach, which has been used in a series of cases in which the applicant either engaged in Holocaust denial, and/or other anti-Semitic speech, and/or the propagation of Nazi-type ideas (see, for example, Kühnen v. Germany , no. 12194/86, Commission decision of 12 May 1988, DR 56, p. 205). Here Articles 10 and 17 are combined, in the sense that the case is subjected to the standard Article 10 § 2 analysis. At the “necessity” stage, Article 17 is relied upon, leading to the conclusion that the application is manifestly ill-founded (without merit, but not outside the scope of Article 10).

5. These two approaches are not mutually exclusive, though, as the case of Molnar v. Romania ((dec.), no. 16637/06, 23 October 2012) shows. Pursuing the first approach outlined above, the Court stated in that case that since the applicant’s actions were incompatible with democracy and human rights, he could not rely on Article 10. That was not its final word, however. It completed its examination of the case on an “even assuming” basis: even assuming that there had been an interference with the applicant’s freedom of expression, this had been justified under the second paragraph of Article 10.

6. The third group in this typology is made up of cases where Article 17 might have been applied, but was not, as is exemplified by the case of Leroy v. France (no. 36109/03, 2 October 2008). The applicant in that case had been convicted of condoning terrorism because of a cartoon that he had drawn based on the terrorist attacks on the World Trade Center and published two days later. Following his conviction for condoning terrorism, he complained under Article 10 of the Convention. The Court was not persuaded by the Government’s argument that the case should be considered beyond the scope of Article 10 – in essence, it distinguished it from the more typical Article 17 cases already referred to, where the hateful, injurious intent of the person had been unequivocal. I should add that the Court ultimately held that the interference with the applicant’s freedom of expression had been justified, and the sanction applied proportionate.

7. Finally, and even if this approach might not be genuinely different, in certain cases the Court’s approach has been to leave open the question of Article 17 until it has examined the merits of the case, and then to decide. This can be seen in Soulas and Others v. France (no. 15948/03, 10 July 2008) and also Féret v. Belgium (no. 15615/07, 16 July 2009). Both cases involved restrictions on racist, Islamophobic speech that the Court ultimately held to be justified. Having reached this conclusion, it added that the expressions in question did not justify the application of Article 17, almost as an afterthought. This may be seen as somewhat putting the cart before the horse.

8. A characteristic aspect of the Strasbourg approaches to Article 17 is that the Court has kept its options open. There is more than one tool in the box, to be used as the need is seen to arise in an individual case. I think it can also be said that the Court has made rather sparing use of Article 17. Outside of what are recognised as the most egregious and odious forms of hate speech, the Court tends to find the answer to complaints of restrictions on freedom of expression within the boundaries of Article 10. In the present case the Court has found that the question whether Article 17 is to be applied must be joined to the merits of the applicant’s complaint under Article 10 of the Convention, taking as the decisive point under Article 17 whether the applicant’s statements sought to stir up hatred or violence . To my mind racist speech and genocide denial, combined with the intent to insult others or make others suffer, may as such be characterised as an activity aimed at the destruction of any of the rights and freedoms set forth in the Convention, within the meaning of Article 17. This was the position of the Court in Hizb ut-Tahrir and Others v. Germany ((dec.), no. 31098/08, § 72, 12 June 2012). The Court has held, in particular, that a “remark directed against the Convention’s underlying values” is removed from the protection of Article 10 by Article 17 (see Lehideux and Isorni v. France , 23 September 1998, § 53, Reports of Judgments and Decisions 1998-VII, and Garaudy , cited above). Thus, in Garaudy , which concerned, in particular, the conviction for denial of crimes against humanity of the author of a book that systematically denied such crimes perpetrated by the Nazis against the Jewish community, the Court found the applicant’s Article 10 complaint incompatible ratione materiae with the provisions of the Convention.

9. I consider that the intent to insult the memory of the victims of the Armenian Genocide was manifest in this case and that the applicant’s statements as such were directed against the Convention’s underlying values. However, the specific procedural position of the Grand Chamber was that the Article 10 complaint had already been declared admissible by the Chamber. The application of Article 17 could therefore not have led to the inadmissibility of the Article 10 complaint. In that context I would have preferred an approach involving the application of Article 17 on the merits, before entering the domain of Article 10. Only after dealing with Article 17 on the merits should the Court in my view have adopted the subsidiary approach of applying Article 17 as a guiding principle for the interpretation of Article 10 at the “necessity” stage of Article 10 § 2.

10. [Judge Silvis only:] Finally, having voted against finding a violation, I could not agree that the finding of a violation would sufficiently compensate the applicant. Admittedly, this position is merely a matter of taste; of course I do agree with the decision not to award the applicant any monetary compensation.

[1] . For an in-depth analysis of both the existence of the crimes and the intentional element on the part of those who perpetrated them, see H.-L. Kieser and D. Bloxham, “Genocide” in J. Winter (ed.), The Cambridge History of the First World War , Cambridge, Cambridge University Press, 2014, vol. I, Global War , pp. 585-614