CEDH · CASELAW;CLIN;ENG — 12 novembre 2015

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France - 52363/11 Judgment 12.11.2015 [Section V] Article 10 Article 10-1 Freedom of expression Prohibition, throughout period of applicant’s release on licence, on disseminating works concerning terrorist offence of which he had been convicted: no violation Facts – The applicant is the former leader of a Basque separatist organisation. He received a number of convictions, in particular for conspiracy in preparation of a terrorist attack, premeditated murder in connection with terrorist activity, armed robbery, murder in a terrorism context, and complicity in attempted murder and in murder and armed robbery. In 2007 he was granted release on licence. A few months later he participated in a peaceful demonstration in front of a prison in support of Basque prisoners being held there. This was reported on by the media. Subsequently, he was ordered by the Sentence Execution Judge to “refrain from disseminating any work or audiovisual production authored or co-authored by him concerning, in whole or in part, the offence of which he had been convicted, and from speaking publicly about that offence”. The judge noted that the applicant had previously been described by a court as a “calm and respectful person, who spent most of his time writing his mémoire ”. He inferred therefrom that “even though it was not known what was meant by the term mémoire , it was not to be excluded that [the applicant] might be tempted to publish his memoirs and to make statements about the acts for which he was convicted”. The judgment contained no other reasoning on that point. Law – Article 10: The new obligation imposed on the applicant, in the context of his release on licence, had clearly constituted a restriction of his freedom of expression. It was prescribed by law. The release of the applicant, the former leader of a Basque separatist organisation, who had been sentenced to life imprisonment, in particular for three murders in a terrorism context, had aroused ill-feeling among the victims’ relatives and more generally within the local population. In addition, the obligation in question had been imposed a few months after his release on licence, when he had taken part in a peaceful demonstration to support Basque prisoners. In that context the judicial authorities had been entitled to fear that the applicant was putting himself in a situation that might lead to his reoffending. Having regard to the situation in the Basque country, the impugned restriction could thus fulfil such legitimate aims as the prevention of disorder or crime. The basic principles as to the necessity in a democratic society of an interference with freedom of expression also applied to measures taken by national authorities to combat terrorism. The Court was thus concerned by the fact that, when he imposed that restriction, the Sentence Execution Judge had based his decision on hypothetical rather than actual remarks or writings. It also found it regrettable that the domestic judge had not weighed up the interests at stake and had not fully established the existence of the risk to public order. That being said, the decision to impose that type of restriction was a judicial decision, not an administrative one, because it was taken by the Sentence Execution Judge, and the convicted person thus had the right to appeal against it, including on points of law. The applicant had availed himself of that possibility as he had appealed against the judgment imposing the impugned obligation to the Court of Appeal. That court had, in particular, emphasised that the obligation merely consisted in refraining from making any comments on or justifying the offences committed, that it was not disproportionate to the necessary protection of public order and that he was not prohibited from expressing his political opinions. He had subsequently appealed on points of law. The applicant had therefore been able to have the measure reviewed by the courts and had enjoyed genuine guarantees against abuse – a point to which the Court attached considerable weight. In addition, the measures available to the judge in that context were limited in three respects. They were limited in respect of the individuals on whom they could be imposed, as they concerned only persons convicted of certain specific major offences (intentional homicide, sexual assault or abuse). The measures were also limited in time (until the end of the period of release on licence) and in terms of subject matter (only affecting freedom to talk about the offences committed). The applicant had thus still been able to express his views on the Basque question, as long as he did not mention the offences of which he had been convicted. Lastly, the Court could not ignore the context in which the restriction on the applicant’s freedom of expression had been imposed, namely the early release of an important and well-known figure of a terrorist organisation, who in particular had been sentenced to life imprisonment for murders committed in a terrorist context, and that his early release had caused much ill-feeling among the victims’ relatives and within the local population. Therefore, in imposing the impugned measure on the applicant the domestic courts had not overstepped their margin of appreciation. Conclusion : no violation (unanimously).   © 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