EHRM, 31-01-2006, nr. 64016/00

The applicant considered that his conviction for the publication of the impugned article amounted to an unlawful interference with his right to freedom of expression. He disagreed with the interpretation given to his article in the decisions of the domestic courts. In his view, the text criticised the attitude of the Catholic Church as the ‘self-proclaimed sole keeper of divine truth’. He had subsequently wished to demonstrate that the doctrine of supremacy expressed through the primacy given to the New Covenant, in that its consequence had been the belittling of the Old Covenant passed between God and the Jewish people, had heaped opprobrium on the latter group and had contained the seeds of the anti-Semitism without which Auschwitz could not have occurred. The impugned article did not claim that the Catholic Church's doctrine was intrinsically anti-Semitic, but that ‘scriptural anti-Judaism’ had led to anti-Semitism, a not insignificant nuance. Short of resorting to a caricatured and simplistic summary, the applicant could not therefore be accused of having imputed responsibility for the crimes committed at Auschwitz to the Catholic Church. He added that the domestic courts had systematically extrapolated his statements to Christianity as a whole, even though they had referred only to the Catholic Church.

The applicant further challenged the claim that, since the impugned article concerned a sensitive religious matter, his freedom of expression could be subjected to stricter control. He considered that the circumstances of his case were different to those analysed by the Court in its judgments in Wingrove v. the United Kingdom (judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V), and Otto-Preminger-Institut v. Austria (judgment of 20 September 1994, Series A no. 295-A, p. 18–19). In the instant case, the issue was not one of assessing the form of his article but only the idea, which had been set out in it without animosity or a desire to harm. He stated that, in his capacity as a historian and experienced journalist, he had sought only to contribute to the discussion on the origins of anti-Semitism and the extermination of the Jews, and thus to take part in a public debate. While he accepted that his point of view was not shared by all, including the AGRIF, he nonetheless considered that his article had contributed to an essential debate. While he was aware that his text could have offended or shocked some readers, he nevertheless considered that, having regard to the factors outlined above, he ought not to have been convicted, as this had not been ‘necessary in a democratic society’.

Finally, the matter of the pecuniary penalties was not the subject matter of these proceedings, which essentially concerned a dispute regarding the very principle of his conviction.

The Government did not deny that the applicant's conviction constituted an ‘interference’ in his exercise of his right of freedom of expression, and that that interference was ‘prescribed by law’, namely sections 29 and 32 of the Law of 29 July 1881.

Nonetheless, the Government considered that the complaint under Article 10 of the Convention was unfounded.

In the first place, the interference in question pursued one of the legitimate aims provided for in paragraph 2 of Article 10 of the Convention, namely the protection of the reputation or rights of others, in that the applicant's conviction was intended to protect Christians from defamation.

In particular, the Government submitted that the interference was ‘necessary in a democratic society’. The applicant's conviction satisfied the criteria of necessity and proportionality which emerged from the Court's case-law, having regard to the margin of appreciation which was to be allowed to the authorities in this matter.

In this connection, the Government considered, firstly, that the grounds on which the domestic courts had based their decisions had been ‘relevant and sufficient’, since the applicant's conviction had been pronounced following a thorough and careful analysis of the disputed statements.

As to the proportionality of the conviction in relation to the legitimate aim pursued, the Government submitted that the applicant's statements had been directed against a large group of people, namely the Christian community, through a national newspaper, and were of a particularly serious nature. In addition, although the Government recognised that, in principle, the States’ margin of appreciation was limited in cases concerning regard to freedom of expression with regard to political speech or matters of serious public concern, they nevertheless considered that this same margin of appreciation could prove wider in relation to attacks on religious convictions (they referred, in particular, to Wingrove, cited above). It followed that the applicant ought to have taken greater care in wording his article. This was all the more so in that the impugned passage did not constitute a value judgment but referred to a fact, the truth of which could be proved or disproved. The article clearly affirmed the responsibility of the Catholic Church, and therefore of its members, in the extermination of the Jews by the Nazi regime. Thus, the applicant had not expressed an opinion but had ‘laid a charge’ against the Christian community.

In the alternative, the Government considered that the applicant's statements, if they were to be construed as constituting a value judgment, had gone beyond the stage of participation, however controversial, in a historical debate, and represented a defamatory fusion, consisting in attributing to the Catholic Church responsibility in one of the most heinous crimes in history.

Finally, the Government emphasised the limited pecuniary nature of the penalty imposed on the applicant and concluded that the domestic courts had been careful to strike a fair balance between, on the one hand, freedom of expression and, on the other, respect for the rights of others.

It was common ground that the interference was ‘prescribed by law’, namely by sections 29 and 32 paragraph 2 of the Law of 29 July 1881, as worded at the material time (see paragraph 26 above). The Court is of the same opinion.

The Court notes that aim of this interference was to protect a group of persons from defamation on account of their membership of a specific religion, in this case the Christian community. This aim corresponds to that of the protection of ‘the reputation or rights of others’ within the meaning of paragraph 2 of Article 10 of the Convention. It is also fully consonant with the aim of the protections afforded by Article 9 to religious freedom (see, mutatis mutandis, Wingrove, cited above, § 48).

Whether or not there was a real need for protection for the Christian community, as asserted by the domestic courts and the Government, or whether, as the applicant argues, the impugned article is confined to criticism of the Catholic Church alone, and of the papal encyclical ‘The Splendour of the Truth’, requires an analysis of the grounds relied on by the domestic authorities to justify the interference and therefore of the requirement that it be ‘necessary in a democratic society’, examined below.

Consequently, the contested interference pursued a legitimate aim in the light of paragraph 2 of Article 10 of the Convention.

As the Court has stated on many occasions, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49). As paragraph 2 of Article 10 recognises, however, the exercise of that freedom carries with it duties and responsibilities. Amongst them — in the context of religious opinions and beliefs — may legitimately be included an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs (see, mutatis mutandis, the judgments in Otto-Preminger-Institut, cited above, § 49; Wingrove, cited above, § 52; and Gündüz v. Turkey, no. 35071/97, § 37, ECHR 2003-XI).

In examining whether restrictions on the rights and freedoms guaranteed by the Convention can be considered ‘necessary in a democratic society’, the Court has consistently held that the Contracting States enjoy a certain but not unlimited margin of appreciation (see Wingrove, cited above, § 53). The absence of a uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions broadens the Contracting States’ margin of appreciation when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or religion (see Otto-Preminger-Institut, cited above, § 50; Wingrove, cited above, § 58; and Murphy v. Ireland, no. 44179/98, § 67, ECHR 2003-IX). It is, in any event, for the European Court to give a final ruling on the restriction's compatibility with the Convention and it will do so by assessing in the circumstances of a particular case, inter alia, whether the interference corresponded to a ‘pressing social need’ and whether it was ‘proportionate to the legitimate aim pursued’ (see, mutatis mutandis, Wingrove, cited above, § 53).

In the instant case, the Court notes at the outset, like the Paris Court of Appeal, whose judgment was partially quashed, that the applicant's article essentially accuses the encyclical ‘The Splendour of the Truth’ of enshrining among theological principles the so-called doctrine of the ‘fulfilment’ of the Old Covenant in the New, and the superiority of the latter. According to the impugned article, this doctrine contains the seeds of the anti-Semitism which fostered the idea and implementation of the Holocaust.

According to the domestic courts, especially the Orleans Court of Appeal, whose judgment was upheld by the Court of Cassation, this amounts to accusing ‘Catholics and, more generally, Christians of being responsible for the Nazi massacres’. It followed, again according to the court of appeal, that Christians were therefore victims of the offence of defamation on account of their religious beliefs.

The Court cannot accept these arguments.

It notes, firstly, that the action for defamation brought against the applicant was lodged by an association, the ‘General Alliance against Racism and for Respect for the French and Christian Identity’. It is not for the Court to comment on whether this group is representative, nor on its task of defending the Catholic Church or Christianity in general. Nor is it the role of the Court, short of taking the place of the domestic courts, to evaluate whether the article in question directly undermined the complainant association or the interests which it seeks to defend.

The Court further observes that although the applicant's article criticised a papal encyclical and hence the Pope's position, the analysis it contained could not be extended to Christianity as a whole, which was made up of various strands, several of which rejected papal authority.

The Court considers, in particular, that the applicant sought primarily to develop an argument about the scope of a specific doctrine and its possible links with the origins of the Holocaust. In so doing he had made a contribution, which by definition was open to discussion, to a wide-ranging and ongoing debate (see paragraph 24 above), without sparking off any controversy that was gratuitous or detached from the reality of contemporary thought.

By considering the detrimental effects of a particular doctrine, the article in question contributed to discussion of the various possible reasons behind the extermination of the Jews in Europe, a question of indisputable public interest in a democratic society. In such matters, restrictions on freedom of expression were to be strictly construed. Although the issue raised in the present case concerns a doctrine upheld by the Catholic Church, and hence a religious matter, an analysis of the article in question shows that it does not contain attacks on religious beliefs as such, but a view which the applicant wishes to express as a journalist and historian. In that connection, the Court considers it essential in a democratic society that a debate on the causes of acts of particular gravity amounting to crimes against humanity should be able to take place freely (see, mutatis mutandis, Lehideux and Isorni v. France, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, §§ 54 and 55). Furthermore, it has already had occasion to note that ‘it is an integral part of freedom of expression to seek historical truth’, and that ‘it is not its role to arbitrate’ the underlying historical issues (see Chauvy and Others v. France, no. 64915/01, § 69).

While the published text, as the applicant himself acknowledges, contains conclusions and phrases which may offend, shock or disturb some people, the Court has reiterated that such views do not in themselves preclude the enjoyment of freedom of expression (see, in particular, De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports, § 46). Moreover, the article in question was not ‘gratuitously offensive’ (see Otto-Preminger-Institut, cited above, § 49) or insulting (see, a contrario, the judgment in İ.A. v. Turkey, no. 42571/98, § 29, ECHR 2005-…), and does not incite to disrespect or hatred. Nor does it cast doubt in any way on clearly established historical facts (see, a contrario, Garaudy v. France, (dec.), no. 65831/01, ECHR 2003-IX).

In those circumstances, the reasons given by the French courts in support of the applicant's conviction cannot be regarded as sufficient to convince the Court that the interference in the exercise of the applicant's right to freedom of expression was ‘necessary in a democratic society’; in particular, his conviction on a charge of public defamation towards the Christian community did not meet a ‘pressing social need’.

As to the proportionality of the interference in issue to the legitimate aim pursued, the Court reiterates that the nature and severity of the penalties imposed are also factors to be taken into account (see, for example, Pedersen and Baadsgaard v. Denmark[GC], no. 49017/99, § 93, ECHR 2004-XI). The Court must also exercise caution when the measures taken or penalties imposed by the national authority are such as to dissuade the press from taking part in the discussion of matters of legitimate public interest (see, mutatis mutandis, Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, pp. 25–26, § 35).

In the instant case, the applicant was acquitted in the criminal proceedings. In the civil action, he was ordered to pay FRF 1 in damages to the complainant association and, in particular, to publish a notice of the ruling in a national newspaper at his own expense. While the publication of such a notice does not in principle appear to constitute an excessive restriction on freedom of expression (see Chauvy and Others, cited above, § 78), in the instant case the fact that it mentioned the criminal offence of defamation undoubtedly had a deterrent effect and the sanction thus imposed appears disproportionate in view of the importance and interest of the debate in which the applicant legitimately sought to take part (see paragraphs 50 and 51 supra).

Consequently, there has been a violation of Article 10 of the Convention.