CEDH · CASELAW;CLIN;ENG — 2 octobre 2008

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France - 36109/03 Judgment 2.10.2008 [Section V] Article 10 Article 10-1 Freedom of expression Conviction for complicity in condoning terrorism following publication of a caricature and accompanying caption: no violation   Article 17 Destruction of rights and freedoms Conviction for complicity in condoning terrorism following publication of a caricature and accompanying caption: no violation   Facts : On 11 September 2001, the day of the attack on the twin towers of the World Trade Centre, the applicant, a cartoonist, submitted to the editorial team of a Basque weekly a drawing representing the attack with a caption which parodied the advertising slogan of a famous brand: “We have all dreamt of it... Hamas did it”. He said that his aim had been to represent the destruction of the American empire on the day of the attack on New York. The drawing was published in the newspaper on 13 September 2001. Following a complaint by the prefect, the public prosecutor brought proceedings in the criminal court against the applicant and the newspaper’s publishing director under section 24 of the Law of 29 July 1881 on charges of condoning terrorism and complicity. A full page in the next issue of the newspaper was devoted to extracts from letters and e-mails that had been received in reaction to the drawing and to support for the publishing director, who explained his reasons for publishing the drawing. The criminal court convicted the applicant and the publishing director of the charges and ordered them to pay a fine of EUR 1,500 each. It found that by explicitly showing the tragic and violent destruction of the twin towers on 11 September 2001 and adding a caption referring to a dream, thereby glamorising an act of death, the newspaper had condoned terrorism. It also considered that the sentence should reflect the damage that had been done to public order in a region that was particularly sensitive to the issue of terrorism. An appeal by the applicant was dismissed and the Court of Cassation dismissed the main part of his further appeal on points of law. Law: Article 10– preliminary objection ( jurisdiction ratione materiae) dismissed : The Government had argued that the application was inadmissible pursuant to Article 17 of the Convention as the condoning of acts of terrorism did not fall within its scope. However, the Court considered that the impugned form of expression did not come within the category of publications which Article 17 excluded from the protection of Article 10. Firstly, the underlying message the applicants had sought to convey was not the negation of fundamental rights and could not be equated with racist, anti-Semitic or Islamophobic remarks that struck directly against the values underpinning the Convention. Secondly, although the drawing and accompanying caption had been found by the domestic courts to condone terrorism, they could not be seen as an unequivocal attempt to justify terrorist acts. Lastly, the offence caused to the memory of the victims of the attacks had to be examined in the light of the right protected by Article 10, which was not an absolute right. Consequently, the freedom of expression to which the applicant claimed to be entitled had to be covered by that provision: admissible . See Ivanov v. Russia (no.3522/04, 20 February 2007), Information Note no. 94. Article 10 – The applicant’s conviction amounted to an interference with freedom of expression. That interference was prescribed by law and pursued several legitimate aims which, in view of the sensitive nature of the fight against terrorism and the need for the authorities to be alert to the risk of heightened violence, were public safety, the prevention of disorder and the prevention of crime. As to whether the interference had been “necessary in a democratic society”, the events of 11   September 2001 had given rise to global chaos and the issues that had been raised on that occasion were part of a debate of general interest. The drawing was itself a good indicator of the applicant’s intention. However, when viewed together with the accompanying text it could be seen not merely to criticise American imperialism, but to support and glorify its violent destruction. By publishing the drawing, the applicant had expressed his moral support for and solidarity with those whom he presumed to be the perpetrators of the attacks, demonstrated approval of the violence and undermined the dignity of the victims. His underlying intentions were not relevant to the proceedings brought by the public prosecutor. Indeed, they had not been expressed until after the event and could not, given the context, undo the harm caused by his positive reaction to the consequences of the criminal act. Provocation did not necessarily need to cause a reaction to constitute an offence. While in the applicant’s case it had taken the form of satire, a form of artistic device and social commentary whose natural aim, though its intrinsic characteristics of exaggeration and distortion of the truth, was to provoke and cause agitation, anyone relying on freedom of expression undertook duties and responsibilities. The drawing had assumed special significance in the circumstances of the case, as the applicant must have realised. It was published two days after of the attacks, with no precautions as to language, at a time when the entire world was still in a state of shock at the news. The timing of the publication could only increase the applicant’s responsibility. In addition, the impact of such a message in a politically sensitive region was not to be overlooked; the publication of the drawing had provoked a reaction that could have stirred up violence and suggested that it may well have affected public order in the region. The applicant’s conviction had thus been based on relevant and sufficient grounds and only a modest fine had been imposed. In the circumstances, regard being had in particular to the context in which the caricature had been published, the measure imposed on the applicant had not been disproportionate to the legitimate aim pursued. Conclusion : no violation (unanimously). The Court also found a violation of Article 6 § 1 of the Convention. Article 41 – The finding of a violation of Article 6 § 1 constituted in itself sufficient just satisfaction for any damage sustained by the applicant.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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