Orban and others v. France

Information Note on the Court’s case-law No. 115

January 2009

Orban and others v. France - 20985/05

Judgment 15.1.2009 [Section V]

Article 10

Article 10-1

Freedom of expression

Conviction of book publishers on charge of condoning war crimes: violation

Article 17

Publication of book describing torture and summary executions in the Algerian War: article 17 did not come into play

Facts: The first and second applicants were the chairman and managing director of the applicant company. In 2001 the company published a book entitled Services Spéciaux Algérie 1955-1957, in which the author, General Aussaresses, a former member of the special services, described torture and summary executions carried out during the war in Algeria. The back cover described the author as a “Free French veteran” who had been “dispatched by General de Gaulle on the most sensitive secret missions” and “was considered a living legend”. The author’s account was preceded by a “publisher’s foreword”. The public prosecutor summoned the first and second applicants and the author to appear before a criminal court to answer charges of publicly defending war crimes in the case of the first applicant, and of aiding and abetting that offence in the cases of the second applicant and the author. The criminal court found the defendants guilty and imposed fines of EUR 15,000 on each of the applicants and of EUR 7,500 on the author. It also found that the applicant company had incurred civil liability. The criminal court’s judgment was upheld by a court of appeal and the Court of Cassation dismissed an appeal on points law by the applicants.

Law: Article 17 – There was no doubt that statements unequivocally seeking to justify war crimes such as torture or summary executions were characteristic of an attempt to divert Article 10 from its intended purpose. However, without expressing any view on whether the offence of defending war crimes as defined by the Law of 29 July 1881 was made out in the instant case, the Court could not find that the work published by the applicants had been directed at such an aim. The content of the book indicated that its author, who had served as an intelligence officer in Algeria between the end of 1954 and the autumn of 1957, had sought to contribute to what the applicants referred to as an “historic debate” and to offer direct testimony on a subject – the use of torture and summary executions by the French authorities during the war in Algeria – which, though sensitive and controversial, was without doubt a matter of public interest. In these circumstances, it could not be said that, by publishing Services Spéciaux Algérie 1955-1957, the applicants had used their right to freedom of expression for purposes that were contrary to the letter and spirit of the Convention or in order to divert Article 10 from its intended purpose. Article 17 could not, therefore, come into play.

Article 10 – The applicants’ conviction had interfered with their right to freedom of expression. That interference pursued the legitimate aims of preventing disorder or crime and was prescribed by law. It had been “reasonably foreseeable” to the applicants as professional publishers that the publication of such a work would expose them to a risk of prosecution. The legal basis for their prosecution and subsequent conviction was to be found in clear and accessible provisions which, inter alia, made it an offence to defend war crimes in a written work intended for sale. Although that concept was not defined by domestic law, it had been foreseeable that the domestic courts would refer to international law for the interpretation of the aforementioned provisions of the criminal law and would accordingly find them applicable to the defence of torture or summary executions in “armed conflict”.

On the question whether the interference had been “necessary in a democratic society”, the Court observed that the authorities had had only a limited margin of appreciation, which was circumscribed by the interest of a democratic society in enabling the press to impart information and ideas on all matters of public interest and guaranteeing the public’s right to receive them. Those principles also applied to the publication of books in so far as they concerned matters of public interest.

The Court regarded the book above all as a witness account by a former special services officer who had served in Algeria and who had been directly involved in practices such as torture and summary execution in the course of his duties. The publication of a witness account of this kind unquestionably formed part of a debate on a matter of public concern which was of singular importance for the collective memory. The fact that the author had not taken a critical stance with regard to these horrifying practices and that, instead of expressing regret, had claimed to have been acting in accordance with the mission entrusted to him, formed an integral part of that witness account. Accordingly, there had been no justification for the court of appeal’s criticism of the applicants, in their capacity as publishers, for not distancing themselves from the general’s account.

Further, it had not been shown in what sense the back cover had tended to glorify the author so as to justify finding the applicants guilty of a criminal offence.

The Court also observed that although the author’s statements had not lost their capacity to bring back memories of past suffering, the lapse of time meant that it was not appropriate to judge them with the same degree of severity that might have been justified 10 or 20 years earlier. Penalising a publisher for having assisted in the dissemination of a witness account written by a third party concerning events which formed part of a country’s history would seriously hamper contribution to the discussion of matters of public interest and should not be envisaged without particularly good reason.

Lastly, the nature and severity of the penalties imposed also had to be taken into consideration in assessing whether the interference had been proportionate. The first and second applicants had each been ordered to pay a fine that was, to say the least, high in the circumstances, and which was twice as much as the fine imposed on the author of the statements at issue.

In the light of the foregoing and, in particular, of the singularly important public debate to which the publication of Services Spéciaux Algérie 1955-1957 had contributed, the Court concluded that the reasons given by the domestic courts were not sufficient to persuade it that the applicants’ conviction had been “necessary in a democratic society”.

Conclusion: violation (unanimously).

Article 41 – EUR 33,041 in respect of pecuniary damage.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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