CONCURRING OPINION OF JUDGE ZUPANČIČ, JOINED BY JUDGE SPIELMANN

1. We agree, obviously, with the outcome in this case. We beg to differ, however, with the reasoning of the majority such as essentially implied in § 49 of the judgment, where it says “that the impact of an expression of an opinion [...] on another person’s personality rights cannot be detached from the historical and social context in which the statement has been made and that a reference to the Holocaust must also be seen in the specific context of the German past.” (Citing Hoffer and Annen , § 48).

2. This, of course, is very true, yet it also implies the Court might agree to the impunity of an applicant’s behaviour in a jurisdiction where the “historical and social context” is purportedly different.

3. Apart from that, the real question here is the relativisation of an unacceptable use of the freedom of expression. This relativisation is only a shade removed, if one considers mere appearances, from a Nazi kind of discriminatory pronouncement. One need only imagine that the poster was made from the opposite point of view; then one easily arrives at a converse impression that the inmates shown behind the barbed wire are to be compared with the pigs behind the bars. If such is the kind of statement covered by freedom of expression, one then finds it difficult to understand, what is not covered by freedom of expression.

4. The above relativisation is deeply problematic from a seemingly “democratic” point of view, where everything goes because everything is relative and everything is, to put it metaphorically, for sale. People only have opinions, but they lack convictions, let alone the courage of their convictions. The difference between good and evil, between what is right and what is clearly wrong is thus a matter of opinion, as if reasonable men could reasonably differ on a particular subject matter.

5. Here we may pause and ask, whether reasonable men could indeed or could not differ on the utterly distasteful and unacceptable comparison between pigs on the one hand and the inmates of Auschwitz or some other concentration camp, on the other hand. A few decades ago this kind of Denkexperiment, even in the American context, would only yield a result unfavourable to the applicants, because a few decades ago, reasonable persons could not possibly differ on the question we have before us in this case.

6. Apparently, things have changed to the extent that indeed both the Federal Constitutional Court in Germany, as well as our Court, are still able to say that such comparison is unacceptable, but only in the context of a country carrying a historical stigma concerning the concentration camps.

7. The Federal Constitutional Court, as we say in paragraph 48, endorsed the lower German courts’ assessment to the effect that the campaign made banal the fate of the Holocaust victims and that the violation of the plaintiffs’ personal honour was particularly serious. We, on the other hand, seem to be even more “flexible” and we only maintain that the personality rights ( Persönlichkeitsrechte ) cannot be detached from the social context in which the poster statement has been made and moreover, that the reference to the Holocaust must also be seen in the specific context of the German past.

8. Quite apart from the fact that the German Federal Constitutional Court did not consider the issue under the constitutional norm concerning dignity, this was explained by technical reasons; there is a noticeable difference between the two positions. Thus, it is difficult to say whether that court, if such an attack were to occur; would indeed find it incompatible with human dignity. Personally, we have no doubts that it would.

9. If that were to be true, the position taken by the domestic constitutional court would be far more than ours a question of principle, i.e., the decision would not be taken in the German domestic context as a matter of cultural relativisation. On the other hand, the unfortunate implication of our own position seems to be that the same kind of “freedom of expression” in the Austrian cultural context would clearly be acceptable – let alone in other countries ranging from Azerbaijan in the east to Iceland in the west.

10. Moreover, since the judgment in this case, unless it goes to the Grand Chamber, will become a precedent, it will be de facto binding on all other countries, of course negatively – except on Germany. Because, what is unacceptable in Germany, is no longer unacceptable in Austria, with a similar historical concern, and a fortiori so in other countries. We do not believe that such an approach, were it to be reconsidered by the Grand Chamber, would be acceptable and confirmed.

11. If we now return to the opening theme and consider the difference between the principled and the relativistic positions, as in this case, we may be reminded, although tangentially, of H. L. A. Hart’s distinction between prescriptive norms on the one hand and the instrumental norms on the other hand.

12. Because instrumental norms are relative to the prescriptive norm, they are in that sense relative, whereas the prescriptive norm is by counter distinction and juxtaposition, categorical and in that sense, absolute.

13. Here we are reminded of Immanuel Kant’s categorical imperative. His position was that every human being must be treated as an end in himself. This perhaps coincides with the German constitutional concept of dignity.

14. But when human beings in their utter suffering and indignity are, as here, compared to hens and pigs for the lesser purpose of protecting otherwise legitimate advancement of animal rights, we are no longer in the position to maintain that the human beings seen in these pictures are treated as an end in themselves.

15. Clearly, these human beings, not only Jewish but of all nationalities, in a concentration camp, are here treated as an instrument for the advancement of animal rights. If their image is so instrumentalised, little is left of their human dignity, I’m certain, even in the context of German constitutional law.

16. Hart’s distinction between prescriptive norms on the one hand and instrumental norms on the other hand, is in fact an analogy to the distinction between Kant’s categorical imperative on the one hand and less categorical norms on the other hand.

17. In simple legalistic language, the question is therefore, where do we draw the line? Would these pictures be acceptable in Azerbaijan or Iceland, or in Austria, or would they not be acceptable?

18. Indeed, this is a question of varying cultural standards, which may or may not be shared in any of the 47 different cultural contexts. In turn, the European Court of Human Rights is put in a position whereby it may or it may not relegate the issue to the so-called margins of appreciation.

19. According to that logic, what is acceptable in any other country may not be acceptable in Germany, etc. We see, that this is simply a different kind of relativisation of the same issue, i.e., of our own refusal to draw the line. If the line cannot be drawn here, one is entitled to ask where it would be drawn. It would be difficult to find anything more shocking, as Justice Frankfurter of the U.S. Supreme Court would have said, to human conscience.