Case Summary and Outcome

The Fifth Chamber of the European Court of Human Rights (ECtHR), in a unanimous decision, dismissed a journalist’s application—deemed to be manifestly ill-founded— in a case where he was criminally convicted by the French courts for racial insults and calling into question crimes against humanity in a cartoon titled “Chutzpah Hebdo”, which appeared to doubt the existence of the Holocaust in parodying a weekly issue of Charlie Hebdo. The journalist was the president of the political association “Égalité et Réconciliation” (“Equality and Reconciliation”), which had published the cartoon. A first instance French court convicted the journalist, Alain Bonnet, for the offenses of proffering a public racial insult and questioning the existence of a crime against humanity in the cartoon, including through the cartoon’s caption, “Shoah, where are you?” He was sentenced to three months’ imprisonment and ordered to pay damages to the civil parties, reimburse their costs, and delete the cartoon, with a contingent fine of EUR 300 per day of non-compliance. The French second instance court upheld the journalist’s conviction but reduced his sentence by lifting the term of imprisonment and imposing 100 day-fines at EUR 100, equaling a total of EUR 10,000. The Court of Cassation dismissed the journalist’s appeals on points of law, and he submitted a complaint to the ECtHR. 

The Court concluded that the domestic courts had provided relevant and satisfactory reasons to rule that the journalist’s cartoon directly targeted the Jewish Community. Accordingly, the cartoon benefitted from a lower degree of protection under the right to freedom of expression and was judged as not contributing to any debate in the public interest. The Court noted that even if the journalist’s right to freedom of expression outweighed the public interest under Article 10 of the European Convention on Human Rights (ECHR), interference with the journalist’s freedom of expression had been necessary in a democratic society such that the journalist’s complaint was manifestly ill-founded.

Facts

Alain Bonnet, known by the name Alain Soral, is a French journalist. On April 3, 2016, a cartoon was published on the website of the political association “Égalité et Réconciliation” (“Equality and Reconciliation”), of which Soral is the founder and president. The cartoon featured a parody of the March 30, 2016 issue of the weekly Charlie Hebdo. That week’s issue of Charlie Hebdo, released shortly after the Brussels terrorist attacks of March 22, 2016, depicts floating severed limbs surrounding Stromae, a Belgian singer of Rwandan origin and author of the song “Papaoutai” (“Dad, where are you”). The cartoon published on the “Equality and Reconciliation” website changed the Charlie Hebdo headline to read “Chutzpah Hebdo,” accompanied by a drawing of Charlie Chaplin’s face in front of a Star of David asking the question, “Shoah, where are you?” Scattered across the cartoon are answers to that question in speech bubbles coming from drawings of soap, a lampshade, a shoe without laces, and a wig, saying, “here,” “over here,” and “here too.” The cartoon also has the sub-headings “Attacks [:] Zionists at work,” “Report [:] how Mossad creates Molenbeeks,” and the caption, “Historians all at sea.” 

On May 9, 2016, the Organisation Juive Européenne reported “Equality and Reconciliation” to the Paris Public Prosecutor for the offenses of proffering a public racial insult and questioning the existence of a crime against humanity. The offenses involved violations of the Law of July 29, 1881 on the Freedom of the Press, Law No. 82-652 of July 29, 1982 on audiovisual communications, and Article 132-10 of the Penal Code. 

In communications with police services on September 8, 2016, Soral stated he did not wish to answer questions relating to his capacity as president of the political association or regarding the identity of the cartoon’s author. Accordingly, the Paris Criminal Court recognized Soral as the defendant in his capacity as publication director. The Paris Criminal Court issued a judgment on March 14, 2017, finding Soral guilty of the offenses of proffering a public racial insult and of questioning the existence of a crime against humanity, sentencing him to three months’ imprisonment, and ordering him to pay damages of EUR 1 to three civil parties and a sum of EUR 1,000 to four civil parties. Based on French rules of criminal procedure, Soral was also ordered to reimburse all civil parties a sum of EUR 1,000 for the costs and expenses of the proceedings. The court lastly ordered the removal of the cartoon from the website, with a penalty of EUR 300 per day of delay. 

The court reasoned that the parody, in misappropriating the March 30, 2016 issue of Charlie Hebdo, racially targeted the Jewish community by ridiculing and grossly underplaying the genocide of which its people had been victims, and by reducing the Jewish people to objects with prosaic and morbid symbolism. With regard to the offense of questioning the existence of a crime against humanity, the court found that the question, “Shoah, where are you?” and the caption “historians all at sea,” clearly questioned the existence of the Holocaust, while also denigrating the Rwandan genocide, of which the father of “Papaoutai” singer, Stromae, had been a victim.

Soral appealed both of his convictions, arguing that the cartoon targeted historians of the Second World War rather than the Jewish community and that the cartoon was protected because it falls within the permissive registers of art, humor, and politics. The Paris Court of Appeal issued a judgment on January 18, 2018, upholding Soral’s convictions, but reducing his sentence by removing the term of imprisonment and imposing 100 day-fines at EUR 100, for a cumulative amount of EUR 10,000. Soral’s appeal to the Court of Cassation was dismissed on March 26, 2019, on the grounds that he could show no inaccurate assessments by the Court of Appeal on the laws on freedom of the press. Soral then lodged a complaint with the ECtHR on June 28, 2019, arguing violations of Article 10 of the ECHR (freedom of expression).

Decision Overview

The main issue the Fifth Section of European Court of Human Rights examined was whether the domestic courts erred in their exercise of discretion in balancing the right to freedom of expression under Article 10 of the ECHR and the protection of the rights of others under the ECHR, in a case where the applicant was found criminally liable for publishing a discriminatory cartoon. The primary right of others considered by the Court, in this case, was protection from discrimination, as secured in the prohibition of discrimination under Article 14 of the ECHR. 

Soral did not reargue his previous appeal that the publication fell within the permissive registers of art, humor, and music, but instead narrowed his appeal to the domestic courts’ conclusion that the publication targeted the Jewish community and insinuated the non-existence of the Holocaust. Soral asserted before the Court that the cartoon targeted historians of the Second World War and did not cast doubt on the existence of the Holocaust.

Recalling the Court’s ruling in Ayoub and Others v. France, No. 77400/14 , § 101 (2020), the Court noted that it has previously declared various cases involving Holocaust denial —in which applicants appealed to Article 10 and/or Article 17 of the ECHR—, as inadmissible or manifestly ill-founded (see Williamson v. Germany, No. 64496/17 (2019)). In determining the admissibility of Soral’s case, the Court noted that the criminal convictions constituted an interference with Soral’s exercise of his right to freedom of expression, which required a three-pronged review under Article 10 of the ECHR. That is, where such an interference potentially infringes Article 10 of the ECHR, the interference must be “in accordance with the law”, directed towards the protection of one or more of the “legitimate aims” listed in paragraph 2 of Article 10 and “necessary in a democratic society.”  

On the first and second elements, the Court determined that the penal laws in question had been analyzed by the Court in prior cases (citing Brasilier v. France, No. 71343/01, § 28 (2006), De Lesquen du Plessis Casso v. France, No. 54216/09, § 33 (2012), Morice v. France [GC], No. 29369/10, § 142 (2015), Le Pen v. France, No. 18788/09 (2010) and Lacroix v. France, No. 41519/12, § 36 (2017)) and that freedom of expression may be constrained in the interest of protecting the rights of others (citing Perinçek v. Switzerland [GC], No. 27510/08, §§ 155-157 (2015) and Le Pen). Among the rights of others meriting protection in this case were the public interest in protection against hatred, violence, xenophobia, and other forms of intolerance, as well as protection against all forms of racial discrimination. Heightened protection, the Court said, should be awarded to the rights of the immigrant community, following the precedent laid out in Féret v. Belgium, No. 15615/07, § 78, (2009). 

With regard to the third element, the Court recalled the general principles in Handyside for interferences “necessary in a democratic society”, and provided a fact-specific application to the case. The ECtHR considered that the domestic courts gave relevant and sufficient reasons in finding that the cartoon targeted the Jewish community and cast doubt on the Holocaust’s existence. Regarding the first offense, the ECtHR indicated that the use of symbols evocative of the Holocaust demonstrated that the cartoon was aimed at the Jewish community. Regarding the second offense, the ECtHR focused particularly on the phrase, “Shoah, where are you?”, which in a literal sense insinuated a questioning of the Holocaust’s existence. Thus, the Court concluded that the publication’s message could not be viewed as contributing to any debate of public interest, and that, as a cartoon, it was in a category for which Article 10 provides reduced protections and a greater margin of appreciation for the State (citing Perinçek, §§ 229 et 230 and Z.B. v. France, No. 46883/15, § 57 (2021).

Finally, the Court recalled the significance of the medium used for publication and the context of the dissemination in light of public order and social cohesion. The Court found that in challenging “clearly established historical facts”, to which French authorities had already responded in previous cases of Holocaust denial, the cartoon was not adding to the public discourse (citing, notably, Lehideux et Isorni v. France, No. 24662/94 (1998)). Accordingly, notwithstanding the fact that satire and humor were forms of expression requiring close review (citing Eon v. France, No. 26118/10, § 60 (2013) and Z.B.), the domestic courts had conducted a sufficiently detailed and balanced examination of the interests at stake.

The Court observed that the maximum penalty for each of the two offenses under French law was a one-year imprisonment term and a fine of EUR 45,000. Noting that Soral’s conclusive penalty of EUR 10,000, in the domestic courts, was significant, the Court stated that it would nonetheless uphold the sentence, as it was less severe than the first instance sentence involving imprisonment. 

For these reasons, the Court dismissed the plaintiff’s application considering that the interference was necessary in a democratic society, rendering Soral’s complaint manifestly ill-founded. The Court therefore rejected Soral’s complaint.