Garaudy v France

Rosalind English

Garaudy v France, Admissibility Decision (Application No.65831/01)

Fourth Section, June 24 2003 (French)

ABSTRACT

Holocaust denial is a form of speech which has no protection under Article 10 of the Convention

SUMMARY

The applicant wrote a book called "The Founding Myths of Modern Israel", which was distributed through non-commercial outlets in 1995 and subsequently republished at the applicant's own expense in 1996. In this publication the applicant challenged certain historical orthodoxies about the Holocaust and the existence of Hitler's "final solution".

Several criminal complaints, coupled with applications to be joined to the proceedings as civil parties, were lodged against the applicant by associations of former resistance members, deportees and human-rights organisations. They alleged a number of offences: disputing the existence of crimes against humanity, racial defamation in public and incitement to racial hatred. As a result of the complaints, five separate sets of criminal proceedings were brought  and in 1998 the Paris Court of Appeal found Mr Garaudy guilty of disputing the existence of crimes against humanity, public defamation of a group of people (the Jewish community) and incitement to discrimination and racial hatred. It found his works to be revisionist and imposed suspended sentences of imprisonment, the longest being for six months, and fines.  The fines totalled in excess of 25,900 euros and compensation of more than 33,500 euros was awarded to the civil parties.

Invoking Article 10, the applicant contended that his right to freedom of expression had been unjustifiably infringed. Among other points he made, he argued that his book was a political work written with a view to combating Zionism and criticising Israeli policy and had no racist or anti-Semitic content. He argued that, since he could not be regarded as a revisionist, he should have been afforded unlimited freedom of expression. He also complained that the proceedings in the domestic courts were unfair, in breach of Article 6 (right to a fair trial), taken alone or together with Article 4 of Protocol No 7 (right not to be tried or punished twice). Lastly, he alleged violations of Articles 9 (freedom of thought, conscience and religion) and 14 (prohibition of discrimination).

Held:

Application declared inadmissible as manifestly-ill founded.

With regard to Mr Garaudy's convictions for disputing the existence of crimes against humanity, the Court referred to Article 17 (prohibition of abuse of rights), which was intended to prevent people from inferring from the Convention any right to engage in activities or perform acts aimed at the destruction of any of the rights and freedoms set forth in the Convention. Thus, no one could rely on the Convention as a basis for engaging in any act that was contrary to its provisions. Having analysed the book concerned, the Court found that, as the domestic courts had shown, the applicant had adopted revisionist theories and systematically disputed the existence of the crimes against humanity which the Nazis had committed against the Jewish community. There could be no doubt that disputing the existence of clearly established historical events, such as the Holocaust, did not constitute historical research akin to a quest for the truth. The real purpose of such a work was to rehabilitate the National-Socialist regime and, as a consequence, to accuse the victims of the Holocaust of falsifying history. Disputing the existence of crimes against humanity was, therefore, one of the most severe forms of racial defamation and of incitement to hatred of Jews. The denial or rewriting of this type of historical fact undermined the values on which the fight against racism and anti-Semitism was based and constituted a serious threat to public order. It was incompatible with democracy and human rights and its proponents indisputably had designs that fell into the category of prohibited aims under Article 17 of the Convention. The Court found that, since the applicant's book, taken as a whole, displayed a marked tendency to revisionism, it ran counter to the fundamental values of the Convention, namely justice and peace. The applicant had sought to deflect Article 10 of the Convention from its intended purpose by using his right to freedom of expression to fulfil ends that were contrary to the Convention. Consequently, the Court held that he could not rely on Article 10 and declared his complaint incompatible with the Convention.

As regards Mr Garaudy's convictions for racial defamation and incitement to racial hatred, the Court found that they could constitute an interference with his right to freedom of expression. However, the interference was prescribed by the relevant legislation and had at least two legitimate aims: "the prevention of disorder or crime" and "the protection of the reputation or rights of others". For the same reasons as those set out above and in view of the overall revisionist tone of the work, the Court had serious doubts as to whether the passages on which his convictions were based could qualify for protection under Article 10. While criticism of State policy, whether of Israel or any other State, indisputably came within that Article, the Court noted that the applicant had not confined himself to such criticism: his writings had a clear racist objective. However, the Court did not consider it necessary to decide that issue, as it found that the reasons given by the domestic courts for convicting the applicant were relevant and sufficient and the interference with his right to respect for his freedom of expression was "necessary in a democratic society", in accordance with Article 10 (2) of the Convention. Accordingly, the Court declared this complaint ill-founded.

The court also rejected the complaints under Article 6, taken together with Article 4 of Protocol No. 7, since it concluded that there was nothing to suggest that the applicant had not had a fair trial.

In particular, with regard to Mr Garaudy's allegation that he had been the victim of a smear campaign and trial by the press, the Court noted that his book had been controversial from the outset and that the fierce debate provoked by his trial had been predictable. In its view, the applicant had failed to show that he had been the subject of a virulent media campaign that had or might have influenced the judge's opinions or the verdict. Consequently, the Court found this complaint to be ill-founded.

The Court declared the complaints under Articles 9 and 14 inadmissible for failure to exhaust domestic remedies.

COMMENT (September 2003)

Holocaust Denial and Freedom of Speech

At the heart of this case is the most difficult and sensitive issue in the debate about freedom of expression: where does genuine opinion end and truly racist invective begin.

It is interesting that the Court dealt with the complaint about freedom of expression on the basis that Article 10 did not even extend its protection to the applicant's book, rather than finding, as is normal with free speech cases, that the interference was justified. It took this approach under the auspices of Article 17, but in reality this admissibility decision is a ringing endorsement of content-based restrictions on free expression that should cause some concern to free speech campaigners, if not more generally. The term "content based restriction" is derived from American jurisprudence under the First Amendment . Feldman has commented in his chapter on the the subject that "one should always treat with suspicion controls on speech which are not neutral as to content" (Content Neutrality, Importing the First Amendment Ed. Loveland, Hart Publishing, 1998 p 139), and the content of the applicant's publication in this case should be no exception. However unpalatable the applicant's views, his publication contained ideas,  and as such should pass the threshold test for protection under Article 10 - as opposed to mere "fighting words" which may not have come under that umbrella. (The "fighting words" exclusion is also derived from First Amendment jurisprudence).

It would then have been quite straightforward for the court to find that the restriction was justifiable under Article 10(2). The difficulty with the court's approach here is that it creates an unacceptable distinction between categories of fully protected and unprotected speech. The Court's reliance on Article 17 to see this petition off was surely not justified in the light of the wide reach of Article 10(2), which has frequently been called in aid of state restriction on racist expressions, since the Court endorsed such an approach in Jersild v Denmark (1994) Series A No 298.

Article 17 has received some consideration by the court in a similar case against France in the case of  (1) Marie-Francois Lehideux (2) Jacques Isorni v France (1998) 5 BHRC 540. The applicants were prosecuted for writing and publishing an advertisement in Le Monde in support of the memory of Marshal Petain, convicted and executed for collaboration in 1945. They were convicted of making public defence of the crimes of collaboration. In response to the applicants' claim that their convictions had breached their rights under Article 10, the government argued that the publication in issue infringed the very spirit of the Convention and the essential values of democracy, and therefore claimed that the applicants were barred from relying on Article 10. The Court did not accept this argument. There was nothing in the applicants' advertisement that was specifically directed against the Convention's underlying values; they were praising a man, not a policy. The convictions were therefore held to be a disproportionate interference with Article 10. The Court did not deal expressly with Article 17 but in a concurring opinion Judge Jambreck stated that, in order for that Article to apply, the aim of the offending action should be to spread violence or hatred, to resort to illegal or undemocratic methods, to encourage the use of violence, to undermine democracy or to pursue racist objectives.

This admissibility decision appears to contradict the principle set out in Lehideux, that Article 17 should not itself be used to cut down the scope of the rights in the main body of the Convention.

Racist speech, and anti-semitic opinions in particular, provoke such controversy that the total exclusion of such speech from the Convention ironically protects it from proper debate and scrutiny. As  a result, the boundaries between truly racist speech inciting violence, and the expression of genuine if controversial opinion, are never properly explored or established. As Judith Butler has recently commented in her article about criticism of Israel, there is a tendency now to assume that such criticism has a malicious intent.

"The criticism is thus given a hidden meaning, one that is at odds with its explicit claim. The criticism of Israel is nothing more than a cloak for that hatred, or a cover for a call for discriminatory action against Jews. In other words, the only way to understand effective anti-semitism is to presuppose intentional anti-semitism; the effective anti-semitism of any criticism turns out to reside in the intention of the speaker as retrospectively attributed by the listener." ("No, it's not Anti-Semitic", London Review of Books, Vol.25,  21 August 2003).

Whilst it may not be appropriate to apply Butler's argument to the historical element of the applicant's book, it is certainly relevant to his criticisms of Zionism; even if one believed that such opinions as set out in the applicant's book are by and large heard as anti-semitic (by Jews, anti-semites, or people who could be described as neither), it should become the responsibility of all of us to change the conditions of reception so that the public might begin to distinguish between such statements of opinion and a hatred of Jews.

"The latter is a political debate, and if we say that the case of Israel is different, that any criticism of it is considered as an attack on Israelis, or Jews in general, then we have singled out this political allegiance from all other allegiances that are open to public debate. We have engaged in the most outrageous form of 'effective' censorship"..."What is needed is a public space in which such issues might be thoughtfully debated, and to prevent that space being defined by certain kinds of exclusion and censorship".

An important constituent of that public space which Butler calls for is provided by the courts. It would therefore be unfortunate  to see Article 17 being used to screen such a thoughtful debate.

Rosalind English, 1 Crown Office Row
 

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