The long-awaited ruling, referring to the European Convention on Human Rights and the UN Convention on Civil and Political Rights, states that trying to establish a political system based on national-socialism neither falls within the limits of freedom of assembly nor speech, but instead constitutes a violation of those rights.
Allowing the neo-Nazi Nordic Resistance Movement (NRM) to act in public and seek political support for its inhuman ideology, including holding public demonstrations, has been widely debated in the Nordic countries, especially in Sweden and Finland, during the last decade. The decision on 22nd September 2020 by the Finnish Supreme Court to ban NRM marks an end to legal proceedings in Finnish Courts during the last four years. The Supreme Court ruling will hopefully be carefully analyzed in other Nordic countries and has the potential to serve as a kind of tipping-point in the fight against neo-Nazism.
Background
In Finland, the debate about whether the authorities in a European democratic society, have a right to ban neo-Nazi demonstrations, was initiated back in 2016 by the Finnish Non-Discrimination Ombudsman. The Ombudsman decided to address the issue following concerns raised by representatives of the Jewish community in Finland. The initiative was taken in a context where the NRM had increased its public presence, and more specifically following a demonstration during which a by-passer, who showed his contempt towards the neo-Nazi ideology, was assaulted and killed. The Ombudsman was very satisfied when a year later, in March 2017, the Finnish National Police Board decided to initiate legal proceedings with the aim to have the neo-Nazi organization banned.
The Supreme Court ruling
The motion to ban NRM was successful throughout all three Finnish court instances. The Supreme Court based its recent ruling on an analysis that the activities of the neo-Nazi organization are clearly illegal and violate fundamental and human rights, guaranteed by the Finnish Constitution and international human rights treaties. The Supreme Court specifically noted that, referring to freedom of assembly and speech when inciting hatred towards minority groups, advocating for the abolishment of parliamentary democracy and trying to install a national-socialist state system, constitute clear violations of these rights.
In its ruling the Supreme Court referred to Article 17 of the European Convention on Human Rights, which aim at hindering the use of human rights for purposes which are aimed at the destruction of rights and freedoms of other persons. In that context reference was made inter alia to the Grand Chamber judgement Refah Partisi and Others v. Turkey 13.2.2003 which states that, “[…] a political party may promote a change in the law or the legal and constitutional structures of the State on two conditions: firstly, the means used to that end must be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of rights and freedoms recognised in a democracy cannot lay claim to the Convention’s protection against penalties imposed on those grounds […]”
The Supreme Court also referred to several other decisions by the ECtHR, such as Nachtmann v. Austria 9.9.1998 and Schimanek v. Austria 1.2.2000, in which the ECtHR explicitly has stated, that national-socialism is a totalitarian ideology incompatible with democracy and respect for human rights.
In response to the motion, the NRM had put forth that it could not as an organization be held responsible for acts of violence, such as assaults committed by individuals, even if they were members of the NRM. In this regard the Supreme Court noted that, as these crimes on several occasions had occurred during events organized by the NRM and the organization instead of condemning the violence rather seemed to glorify it, it had to be concluded that the NRM accepted violence as a means to achieve its goals.
Why has the NRM not been banned in Sweden?
For a human rights lawyer it has been interesting but at times also frustrating to follow the legal and political discourse concerning whether to ban the neo-Nazi NRM organization, or not. Since the NRM clearly is larger and more active in Sweden than in other Nordic Countries, and the organization also is led from Sweden, one obvious question has been why serious steps to have NRM banned in Sweden have not been taken. The question appears even more obvious since the legal traditions of Finland and Sweden, due to historical reasons, are very much alike (Finland was a part of the Swedish Kingdom until 1809 and continued to follow the Swedish Constitution until it became independent from Russia in 1917). How come the two countries have come to so different conclusions?
The problems involved in banning the NRM in Sweden seems to have been argued with both political and legal arguments. In my opinion neither argument seems very convincing. It also seems that the question has been analyzed foremost through interpretation of national laws but without taking international legal obligations into due consideration.
The legal argument hindering banning NRM in Sweden is said to be linked to Chapter 2, Articles 20 and 24 of the Swedish Constitution. These articles make it possible to pass a law allowing banning organizations whose activities constitute “persecution of a population group on grounds of ethnic origin, colour, or other such conditions”. The problem however is that such a law, despite years of debate and an apparent need, has not yet been passed. It should however be stressed that the Swedish government has established a parliamentary committee with the specific task to consider whether a law allowing the banning of racist organizations should be passed including evaluating what effects similar policies in other States have had.
When looking at the activities undertaken by the NRM in recent years, including organizing demonstrations and spreading antisemitic propaganda in the direct vicinity of synagogues on Yom Kippur, it seems quite clear that the NRM’s activities fulfil the constitutional requirement of constituting persecution of at least the Jewish minority.
There are also more political arguments put forth against banning NRM in Sweden. Aside from the standard arguments related to freedom of expression and that the enemies of democracy are best fought by democratic means (and that a ban would be undemocratic), a frequently occurring view in the Swedish debate is the idea that banning the neo-Nazis will result in the organization “going underground” and becoming even more radicalized, violent and dangerous. When looking at what effects the interim ban during the proceedings and now the final ban has had in Finland, this argument seems to fall short. The Finnish Police Board has actually reported that banning the NRM has resulted in that its activities at least in Finland have significantly diminished, that the organization is losing members and that its fundraising has decreased. The conclusions drawn by the Finnish Police have been echoed by scholars adding that co-operation with neo-Nazis in other countries also seems to have decreased.
States in fact have an obligation to ban neo-Nazi and other racist organizations
Political debate and speculating on the societal effects of banning neo-Nazi organizations can for sure continue for an infinity. A more relevant question in my opinion is to look at whether such an obligation in fact already exists. When looking at the obligations states who have ratified the 1965 UN Convention on the Elimination of All Forms of Racial Discrimination have, the answer in my opinion is quite clear. Article 4 of this legally binding convention which almost all countries in the world, including all Members States of the European Union, have ratified obliges states to “declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law”.
The CERD-Committee, which monitors the Convention, in its General recommendation XV (1993) has explicitly emphasized the binding nature of Article 4: “Some States have maintained that in their legal order it is inappropriate to declare illegal an organization before its members have promoted or incited racial discrimination. The Committee is of the opinion that article 4 (b) places a greater burden upon such States to be vigilant in proceeding against such organizations at the earliest moment. These organizations, as well as organized and other propaganda activities, have to be declared illegal and prohibited. Participation in these organizations is, of itself, to be punished”.
In conclusion, binding human rights treaties not only make it possible but in fact require our States to ban racist organizations. All that seems to be missing in States that have not yet banned neo-Nazi organizations seems to be the political will to do so. I truly hope that States this time in history will act before it’s too late.
As for Sweden, the results of the above–mentioned government inquiry are expected in February 2021. What the outcome will be, and whether there will be a ban of NRM in Sweden will be followed closely in other countries where NRM directly or indirectly promotes its hateful ideas.
The views on this blog are always the authors’ and they do not necessarily reflect Equinet’s position.