Information Note on the Court’s case-law 54
June 2003
Garaudy v. France (dec.) - 65831/01
Decision 24.6.2003 [Section IV]
Article 17
Destruction of rights and freedoms
Conviction of writer for contesting crimes against humanity: inadmissible
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Refusal to join five parallel sets of proceedings before the same court: inadmissible
Article 10
Article 10-1
Freedom of expression
Conviction of writer for contesting crimes against humanity: inadmissible
The applicant is a philosopher and writer and was a politician. Following the publication of his work entitled Les myths fondateurs de la politique israélienne (The myths at the root of Israeli politics), a number of complaints, together with applications for civil damages, were lodged by a series of associations alleging crimes against humanity, racial public defamation and provocation of hatred or violence on grounds of race or religion. These complaints led to four judicial investigations being opened. A fifth investigation was opened by the State Prosecutor into the offence of denying crimes against humanity. The applicant was committed before the Paris Regional Court in five separate criminal proceedings involving two different editions of and a number of different passages from his work. The applicant sought to have the five proceedings joined but his application was rejected on the grounds that, although they concerned the same author, the proceedings related to two different editions of the same work and the separate files were the consequence of the various actions commenced either by the State Prosecutor or by different civil parties, each of whom had cited passages from the work which were different or of different scope. Following those proceedings, which were based on the Law of 29 July 1881 on press freedom, the applicant was found guilty of the less serious offences of denying crimes against humanity, public defamation of a group of persons, in this instance the Jewish community, and provocation of racial discrimination and hatred. He was given suspended prison sentences and fined and also ordered to pay compensation to the civil parties. The Court of Cassation dismissed the applicant’s appeals on points of law. The five suspended prison sentences were combined. The amounts of the fines were added together (a total of 170,000 FRF), as were the amounts that the applicant was to pay to the associations which had joined the proceedings as civil parties (a total of 220,021 FRF).
Inadmissible under Article 10: The objection of inadmissibility raised by the Government is dismissed: the sole fact that the grounds of the appeal on a point of law submitted by the applicant in two of the five proceedings include arguments based less than the others on Article 10 is not sufficient to support a conclusion that the applicant failed to exhaust all domestic remedies. At least one ground relating to Article 10 of the Convention was submitted to the Court of Cassation in the context of each of the five criminal proceedings.
As regards the merits, there are limits to freedom of expression: the justification of a pro-Nazi policy cannot enjoy the protection of Article 10 and the denial or revision of clearly established historical facts – such as the Holocaust – are removed by Article 17 from the protection of Article 10. As regards the applicant’s convictions for denying crimes against humanity, the Court refers to Article 17: in his book, the applicant calls in question the reality, degree and gravity of historical facts relating to the Second World War which are clearly established, such as the persecution of Jews by the Nazi regime, the Holocaust and the Nuremberg trials. Denying crimes against humanity is one of the most acute forms of racial defamation towards the Jews and of incitement to hatred of them. The denial or revision of historical facts of this type call in question the values underpinning the fight against racism and anti-Semitism and are capable of seriously disturbing public order. Such acts adversely affect the rights of others and are incompatible with democracy and human rights; those responsible indisputably have in mind objectives of the type prohibited by Article 17. The Court considers that the greatest part of the content and the general tone of the applicant’s work, and therefore its purpose, are markedly negationist in nature and therefore run counter to the fundamental values of the Convention, as expressed in the Preamble thereto, namely justice and peace. The Court considers that the applicant is attempting to divert Article 10 of the Convention from its purpose by using his right to freedom of expression for ends contrary to the letter and the spirit of the Convention. If such ends were admitted, they would contribute to the destruction of the rights and freedoms guaranteed by the Convention. Accordingly, under Article 17 of the Convention, the applicant cannot rely on Article 10 as regards the items relating to the denial of crimes against humanity: incompatible ratione materiae.
Next, the complaint is examined under Article 10 as regards the aspects of the work which criticise the conduct of the State of Israel and the Jewish community, in respect of which the applicant was convicted, inter alia, of racial defamation and incitement to racial hatred. However, the Court has serious doubts as to whether, having regard to the overall negationist tone of the work, the expression of such opinions may be protected by Article 10 of the Convention. In any event, the interferences, which were prescribed by law, pursued at least two of the legitimate aims provided for in the Convention: “the prevention of disorder or crime” and “the protection of the reputation or rights of others” and, having regard to the tenor of the applicant’s writing, the grounds on which the national courts convicted him were relevant and sufficient. The interferences were also “necessary in a democratic society": manifestly ill founded.
Inadmissible under Article 6 § 1 (fair trial): The reason for the refusal to join the five criminal proceedings was based on considerations connected with the proper functioning of justice and, in the circumstances of the case, the authorities’ conduct was compatible with the just balance which is to be struck between the various aspects of that fundamental requirement, for a number of reasons. First, the case presented problems from the aspect of the significant number of civil parties, who had initiated different actions, on different dates, concerning different passages from two editions of the applicant’s work; the applicant was prosecuted for a number of offences, which differed as between them and were of a particular nature; furthermore, offences connected with publishing are governed by specific procedural rules. Next, the courts established a close relation between the five proceedings: the cases were heard and transferred on the same day before the three levels of jurisdiction, and all the records of the hearings, and all the previous measures taken during the judicial investigations, were placed in each file, so that the opportunities for the applicant to present his defence during the five proceedings were not limited. Last, the quantum of the penalties which were added together did not exceed the statutory limit of the longest prison sentence available had the five cases been joined; as regards the fines, although they were not ordered to be paid together, the total amount of the fines imposed in the five cases is far below the statutory maximum of the highest fine: manifestly ill founded.
Inadmissible under Articles 6 § 1 (impartiality of the Court of Appeal and impact of the media campaign on the trial) and 6 § 3 (d).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy