Legal summary
April 2024
Allouche v. France - 81249/17
Judgment 11.4.2024 [Section V]
Article 8
Positive obligations
Article 8-1
Respect for private life
Authorities failed to take into account the antisemitic aspect of the case, compromising their ability to provide effective and adequate criminal-law protection from discriminatory remarks: violation
Article 14
Discrimination
Authorities failed to take into account the antisemitic aspect of the case, compromising their ability to provide effective and adequate criminal-law protection from discriminatory remarks: violation
Facts – Criminal proceedings were conducted following a complaint lodged by the applicant concerning antisemitic insults and threats she had received by email from B. The applicant considered that by refusing to characterise the offender’s statements as antisemitic, the authorities had not adequately protected her from the verbal attacks that had caused her acute suffering and had had a profound impact on her private life.
Law – Article 8 in conjunction with Article 14:
The applicant’s complaint concerned the fact that the authorities, which had failed to take into account the antisemitic aspect of the offender’s remarks, had failed to provide her with effective protection against antisemitic acts of violence, threats and insults. Some of B.’s statements had been extremely violent, had contained direct threats and had been directed at the applicant as a member of the Jewish community.
The Court reiterated that the national authorities had a duty to implement an appropriate legal framework to protect against discriminatory acts and to take all reasonable steps to determine whether there had been any racist or, more broadly, discriminatory motive for the impugned acts. Where acts that constituted serious offences were directed against a person’s physical or mental integrity, only efficient criminal-law mechanisms could ensure adequate protection and serve as a deterrent. Violent incidents with allegedly discriminatory motives, in particular racist motives, should not be treated on an equal footing with offences lacking such motives.
French criminal law provided for a mechanism for punishing threats to commit an offence, where such threats were made on account of the victim’s ethnicity, religion or race, and that mechanism had been applied at the initial stage, when the criminal complaint was filed. Yet despite insults and written threats of death, rape and acts of violence – the antisemitic character of which could hardly be contested –, and despite the fact that the investigation had initially been oriented in that direction, the public prosecutor had decided to bring charges against B. for repeated death threats, under the “immediate summary trial” procedure, while disregarding the aspect of those threats which related to the victim’s real or presumed membership of the Jewish community. B. had been put on trial only for “ordinary” death threats. The Court, however, was certain that under French criminal law the public prosecutor could have taken into account the antisemitic component of the relevant acts in the charges on which B. had been committed for trial.
While the Court could not as such criticise the public prosecutor’s decision as to which charges to bring or the legal characterisation of the offences, it nonetheless noted the following. Firstly, the criminal court had not in any way addressed the applicant’s repeated grievances as to the antisemitic character of the offences perpetrated against her. Secondly, in the reasoning of its judgment, the appellate court had duly characterised B.’s messages as antisemitic threats, in keeping with the applicant’s request. It had not, however, employed any legal options for the purpose of providing an appropriate criminal-law response to the antisemitic aspect of the offences while ensuring the rights of the defence. It had therefore not granted, as it could have done under domestic law, the applicant’s request for reclassification of the charges.
It followed that the Court of Appeal had failed to draw any legal conclusions from its own findings – an omission that had not been remedied on appeal to the Court of Cassation. Indeed, that court had declared the applicant’s appeal on points of law inadmissible. Thus, the applicant’s suffering, trauma and the numerous negative repercussions for her personal and professional life had been aggravated by the domestic courts’ refusal to acknowledge her status as a “Jewish victim” and to draw all the legal conclusions such a status entailed.
In sum, at no time had the criminal courts in question ever taken into account – whether at the charging stage, at the stage when reclassification had been requested and denied or, consequently, at the time of conviction – the antisemitic character of the offences.
In the light of the above considerations, the domestic authorities had disregarded their positive obligations under Articles 8 and 14 of the Convention, which had consisted in providing the applicant with effective and adequate criminal-law protection against the statements made by the offender. The authorities’ failure to take into account the antisemitic component of the present case had undermined their ability to provide an appropriate response.
Conclusion: violation (unanimously).
Article 41: EUR 15,000 in respect of non-pecuniary damage.
(See also R.B. v. Hungary, 64602/12, 12 April 2016, Legal Summary; Sabalić v. Croatia, 50231/13, 14 January 2021, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
To access legal summaries in English or French click here.
For non-official translations into other languages click here.