CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 17 juillet 2001

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .sEDF00F56 { margin-left:18pt; text-indent:-18pt; text-align:justify; font-family:serif; list-style-position:inside } .s90404E59 { width:6.48pt; font:7pt 'Times New Roman'; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s76CF415B { page-break-before:always; clear:both } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s19E53254 { width:2.39pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS     533   17.7.2001   Press release issued by the Registrar   JUDGMENT IN THE CASE OF ASSOCIATION EKIN v. FRANCE   In a judgment notified today [1] in writing in the case of Association Ekin v. France (no.   39288/98), the European Court of Human Rights held unanimously that:       there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights;     no separate issue arose under Article 10 taken together with Article 14 (prohibition of discrimination) of the Convention;     there had been a violation of Article 6 § 1 (right to a fair hearing);     that it was unnecessary to examine the complaint under Article 13 (right to an effective remedy).   Under Article 41 (just satisfaction), the Court awarded the applicant 250,000 French francs (FRF) for pecuniary damage, FRF 50,000 for non-pecuniary damage and FRF 58,500 for legal costs and expenses.   1.     Principal facts   The case concerns an association called Ekin, based in Bayonne (France), which was set up to protect Basque culture and the Basque way of life.   In 1987, the applicants published a book entitled “Euskadi at war” in various languages and in various European countries. It was an account of the historical, cultural, linguistic and socio-political aspects of the Basque conflict.   On 29 April 1988 a ministerial decree was issued under section 14 of the Law of 29 July 1881, as amended by a decree of 6 May 1939, banning the circulation, distribution and sale of the book in France on the ground that it promoted separatism, vindicated recourse to violent action and, accordingly, represented a potential danger for public order.   The applicant lodged an appeal with the ministry, but it was deemed to have been rejected. It then lodged an appeal with the Pau Administrative Court, which held that it had no jurisdiction and referred the case to the Conseil d’État . The Conseil d’État in turn remitted the case to the Pau Administrative Court, which dismissed the appeal on the ground that the book was of foreign origin and represented a potential danger for public order.   The applicant appealed to the Conseil d’État , which quashed the impugned judgment and the ministerial decree on the ground that in the absence of any statutory provision defining the basis on which a ban could be imposed under section 14 of the Law of 29 July 1881 and having regard to the interests which the minister was responsible for protecting, in particular public safety and public order, the content of the book did not justify in law an interference with press freedom as serious as a ban. On the other hand, the Conseil d’État held that section   14 of the Law of 1881, as amended, was not contrary to Article 10 of the European Convention on Human Rights taken together with Article 14 of the Convention.     2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 3 January 1998. It has been before the Court since 1 November 1998.   Judgment was given by a Chamber of seven judges, composed as follows:   Willi Fuhrmann (Austrian), President , Loukis Loucaides (Cypriot), Françoise Tulkens (Belgian), Karel Jungwiert (Czech), Nicolas Bratza (British), Kristaq Traja (Albanian), judges , Guy Braibant , ad hoc judge ,   and also Sally Dollé , Section Registrar .     3.     Summary of the judgment [2]   Complaints   Relying on Article 10 of the Convention, the applicant complained that section 14 of the Law of 1881, as amended, was too unclear for a legal rule and that it did not meet the requirement to be accessible and foreseeable in its effects. Nor was the interference permitted under the rule necessary in a democratic society. Furthermore, the provision gave rise to a distinction in freedom of expression cases on the statutory basis of language or national origin and consequently, was contrary to Article 14 taken together with Article 10. The applicant also relied on Article 6 § 1 (right to a determination of civil within a reasonable time) and Article 13.   Decision of the Court   Article 10 taken alone and together with Article 14   Section 14 of the law of 1881, as amended, was couched in very wide terms and conferred wide-ranging powers on the Minister of the Interior to issue administrative bans on the dissemination of publications of foreign origin or written in a foreign language. Such pre-emptive restrictions were not, a priori , incompatible with the Convention. Nevertheless, a legal framework was required that ensured both tight control over the scope of bans and effective judicial review to prevent any abuse of power.   With regard to the scope of the rules applicable to foreign publications, the Court noted that section 14 of the Law of 1881, as amended, established an exception to the general law by giving the Minister of the Interior power to impose a general and absolute ban covering the entire French territory on the circulation, distribution or sale of any document drafted in a foreign language or of any document regarded as being of foreign origin even if drafted in French. The Court noted that the provision did not state the circumstances in which the power could be used. In particular, there was no definition of the concept of “foreign origin” and no indication of the grounds on which a publication deemed to be foreign could be banned. Admittedly, those gaps had been progressively filled by the administrative courts’ case law. Nonetheless, as the applicant had said, the application of those rules had, in certain cases, produced results that were at best surprising and in some cases verged on the arbitrary, depending on the language of publication or the place of origin.   As regards the way in which administrative bans were imposed and the extent of judicial review of such bans, the Court noted that the latter took place ex post facto . In addition, judicial review was not automatic since it could only take place on application by the publisher to the courts. As to the extent and effectiveness of judicial review, the Court observed that up until the judgment delivered by the Conseil d’État in the case before the Court, the administrative courts had only carried out a limited review of decisions taken under section 14 of the Law of 1881, as amended. The Conseil d’État had not extended its powers of review to a full review of the grounds for the decision until its judgment of 9   July 1997 in the Ekin case. That being said, the applicant had had to wait more than nine years before obtaining a final judicial decision. Clearly, the length of the proceedings had substantially undermined the effectiveness of the judicial review, whereas the case should have been dealt with expeditiously in view of its subject matter. An aggravating factor, which was not disputed by the Government, was that, under the statutory provision applicable in the case before the Court, stays of execution were granted only if the requesting party was able to show that a ban would cause damage for which it would be difficult to make reparation. That was to say the least a difficult condition to prove. Lastly, Article 8 of the Decree of 28 November 1983 laid down that if the authorities certified that a ban was urgently required, the publisher was not entitled to submit oral or written observations before the decree issuing the ban was adopted, which was what had happened in the case before the Court. In conclusion, the Court held that the judicial-review procedures in place in cases concerning administrative bans on publications provided insufficient guarantees against abuse.   That legislation appeared to be in direct conflict with the actual wording of paragraph 1 of Article 10 of the Convention, which provides that the rights recognised in that Article subsist “regardless of frontiers”.   The Government had argued that the existence of legislation specifically governing publications of foreign origin was justified among other things by the fact that it was impossible to institute proceedings against the authors or publishers guilty of prohibited conduct when they were based overseas. The Court did not find that a persuasive argument. Although the exceptional circumstances in 1939 just before the Second World War could justify control over foreign publications being reinforced, the argument that a system that discriminated against publications of that sort should continue to remain in force appeared untenable. The Court noted too that the head office of the applicant association, which was the publisher of the banned work, was in France.   In the case before it, the Court, like the Conseil d’État , held that the content of the book did not justify, in particular as regards the issues of public safety and public order, so serious an interference with the applicant’s freedom of expression as that constituted by the ban imposed by the Minister of the Interior. Ultimately, the Court considered that the ban did not meet a pressing social need and was not proportionate to the legitimate aim pursued.   In the light of those considerations and its analysis of the impugned legislation, the Court concluded that the interference constituted by section 14 of the Law of 1881, as amended, could not be regarded as “necessary in a democratic society”. There had, therefore, been a violation of Article 10.   Having regard to that conclusion, the Court considered it unnecessary to examine the complaint under Article 10 taken together with Article 14 separately.   Article 6 § 1   The Court noted that the proceedings had taken more than nine years before two levels of jurisdiction and that the applicant had not been guilty of dilatory conduct.   The Court reiterated that it was for the Contracting States to organise their legal systems in such a way that their courts could guarantee to everyone the right to a final decision within a reasonable time in the determination of his or her civil rights and obligations. It considered that the total length of the proceedings, more than nine years, could not be considered “reasonable”, even when what was at stake in the litigation was of particular importance. Consequently, there had been a violation of Article 6 § 1.   Article 13   The Court did not consider it necessary to examine the complaint raised under Article 13 separately.   Article 41   The Court could not speculate on what the likely sales of the work published by the applicant association would have been. Having said that, it considered that owing to the nature of the restriction and the unreasonable length of the proceedings, the association had sustained actual pecuniary damage which, however, could not be assessed with precision. In those circumstances, the Court awarded the association FRF 250,000 for pecuniary damage.   The Court considered that the association had sustained actual non-pecuniary damage owing to the nature of the restriction and the unreasonable length of the proceedings and awarded it FRF 50,000 under that head. The Court awarded the association a total of FRF 58,500 for costs and expenses.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contact:   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court.   In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer the case to the Grand Chamber. [2] .     This summary by the Registry does not bind the Court.