Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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The European Court of Human Rights (“ECtHR”) held, by six votes to one, that the criminal conviction of a French political activist for publicly waving a placard bearing a satirical phrase previously uttered by the President was violative of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). Following prosecution for the offence of insulting the President, the French judicial authorities held that given the deliberate and public use of a phrase which was undoubtedly insulting to the President and which had not yet passed into general usage, against the backdrop of the bitterness experienced by the applicant over a political failure, the applicant could not reasonably maintain that he had no intention of causing offence. Having established the actus reus and mens rea as requisite for the offence, the domestic authorities imposed a modest suspended penalty on the applicant. The ECtHR held that the interference with the applicant’s right to freedom of expression by the domestic authorities was unnecessary in a democratic society as it was disproportionate to the legitimate aim of protecting the reputation of others. The ECtHR, upon considering the case as a whole, in its context, and against the backdrop of the applicant’s position, held that the phrase had been employed as a form of political criticism against a public figure in respect of whom the limits of acceptable criticism were wider. Pertinently, the Court held that the imposition of criminal penalties for exercising freedom of expression through the medium of satire needed to be cautioned against due to the capacity of such forms of expression to contribute to matters of public interest. The Court, in finding a violation of Article 10, held that such finding in itself constituted just satisfaction in the present matter.
The applicant is Mr. Hervé Eon (“the applicant”), a French national who resides in Laval. On August 28, 2008, when the President of France was on a visit to Laval and his party was about to pass by, the applicant waved a placard which read “Casse toi pov’con” (“Get lost, you sad prick”). On doing so, he was stopped by the police and taken to the police station. He was prosecuted under Section 26 of the Freedom of the Press Act of July 29, 1881 (“Act of 1881”), for the offence of insulting the President and was issued a summons to appear before the criminal court. It bears attention that the phrase employed by the applicant was a repetition of a much-publicized phrase uttered by the President to a farmer who had refused to shake his hand on February 23, 2008, at the International Agricultural Show. The phrase had been extensively covered in media and commented upon in the aftermath of the incident of February 23, 2008, as well as used as a slogan during demonstrations.
The Laval tribunal de grande instance, in its judgment of November 6, 2008, found the applicant guilty of the charges levelled against him. The court reasoned that the manner in which Eon had employed the phrase “Casse toi pov’con”, adopting it ‘strictly as his own’ [para 9], indicated that he had intended to cause offence. As per the court, if he had intended instead to deliver a “lesson in manners” [para 9], he would have preceded the phrase with words such as “you shouldn’t say” [para 9]. The court went on to hold that the purpose of the provision under which Eon had been charged was to protect the office of the President, and that ordinary citizens such as the applicant could not claim a right to be treated equally under it. The court found the appropriate penalty to be a warning in the form of a suspended fine of 30 euros (EUR), imposed on him by the judges as a “matter of principle” [para 9].
An appeal against this decision was filed by the applicant as well as the public prosecutor. The Angers Court of Appeal, in its judgment dated March 24, 2009, upheld the judgment of the lower court in entirety. The court reasoned that the description of the President as a “sad prick” (“pauvre con”) was undoubtedly insulting to him, and that the use of a placard for it was a means of conveying the message publicly, as recognized by Section 23 of the Act of 1881. As per the court, the actus reus of the offence of “insult” was thus made out given that it was well-accepted that the actus reus of the offence is “any insulting or disparaging expression or any defamatory insinuation that is liable to undermine the President’s honour, dignity or reputation, either in the performance of his official duties or in his private life” [para 11], and the phrase on the placard waved by the applicant had such an effect on the President’s honour, dignity, or reputation. On the mens rea of the offence, the court agreed with the Laval tribunal de grande instance that Eon could not reasonably maintain that he had no intention of causing offence given the insulting nature of the phrase employed by him which had not yet become part of general usage, his premeditation in using the phrase, and his bitterness over a personal political failure. Having established the applicant’s actus reus as well as the mens rea as requisite for the charge to be proved, and noting the applicant’s refusal to apologize as well as his previous conviction, the Court of Appeal upheld the penalty imposed by the court of first instance as appropriate given the applicant’s offence and character.
An appeal on certain points of law was filed by the applicant before the Court of Cassation. Due to inadequate resources, he also filed for legal aid to the Court of Cassation’s Legal Aid Board. His application was refused by the Board on May 14, 2009, on a finding to the effect that while his resources were below the statutory limit, no arguable grounds of appeal could be ascertained from his application. The applicant appealed the decision of the Board to the Judge delegated by the President of the Court of Cassation. In his submission, the applicant identified the fundamental principle of the freedom of expression and the concept of “insulting” the head of the State as the legal questions on which his appeal was premised. On June 15, 2009, the President of the Court of Cassation upheld the Board’s refusal to grant the applicant legal aid due to an absence of arguable grounds of appeal. Undeterred, the applicant pursued his appeal on the points of law identified by him. On September 15, 2009, the law firm representing the applicant sent a letter to the Court of Cassation, stating that it did not intend to file any further pleadings. Before the Court of Cassation, the Government put forth the contents of this letter as well as the failure on the part of the applicant to file any pleadings himself. The applicant contended that the law firm had not filed any pleadings on his behalf due to his inability to pay the fees charged by them. On October 27, 2009, the Court of Cassation declared the applicant’s appeal inadmissible, finding there to be no grounds in the appeal which warranted an examination.
On April 12, 2010, the applicant lodged an application with the ECtHR against the French Republic (“the respondent”), alleging a breach of his right to freedom of expression under Article 10 of the Convention.
The decision of the ECtHR (Fifth Section) was delivered on June 14, 2013.
The ECtHR declared, by six votes to one, that the applicant’s complaint under Article 10 of the Convention was admissible. Unanimously, the Court also held that the remainder of the applicant’s complaint was inadmissible.
With respect to the admissibility of the application, the Government contended that the courts had given their decision keeping in mind his financial status, and any payment of fine would not have a considerable impact on his status. Further, the safeguard clauses contained in Article 35 § 3 (b) of the Convention were inapplicable to the present case. In this regard, the Government submitted that respect for human rights did not necessarily require the Court to examine an application on merits. By relying on Janowski v. Poland [ECHR] (1999) 25716/94, the Government contended that the imposition of a minor penalty on an individual making abusive comments which made no contribution to political debate was not a disproportionate interference with the freedom of expression. The Government’s submission stated that the penalty of a suspended fine of the amount of 30 euros (EUR) imposed on Eon would not significantly disadvantage him, as his financial position had been accounted for in determining the penalty. The Government also argued that the case had already been sufficiently examined by the domestic courts situated in France, and that the inadmissibility of the applicant’s appeal before the Court of Cassation was as a result of his own failure to tender pleadings before the court despite having the opportunity to do so. The Government thus submitted that the declaration of the applicant’s appeal as inadmissible by the Court of Cassation was not a denial of justice, but rather a result of “shortcomings on his own part” [para. 31], and did not preclude the application of the admissibility criterion in Article 35 § 3 (b). The applicant did not make any submissions on this issue.
The Court’s Findings
The Court reiterated that applications put forth before it can be rejected on the basis of the admissibility criterion postulated in Article 35 § 3 (b) of the Convention as amended by Protocol No. 14. On whether the applicant would suffer a significant disadvantage, the Court observed that modest as the sum of the penalty imposed on him may be, the seriousness of a violation was to be assessed on the basis of both – the applicant’s subjective perceptions and that which is objectively at stake – in each case [para. 34]. In the present matter, as per the Court, the issue at hand was clearly of subjective importance to the applicant as he had pursued proceedings despite being denied legal aid. Objectively at stake in the present matter, according to the Court, was the question of whether insulting the head of the State should remain a criminal offence. The Court further held that the question raised by the application was of importance at the domestic as well as the regional level, and it was on this metric that the decision of whether respect for human rights required an assessment of the application on merits must be made. The Court thus held that the requirement of the lack of significant disadvantage for the applicant as per Article 35 § 3 (b) had not been satisfied, due to which the Government’s objection to the admissibility of the application had to be dismissed.
The ECtHR held, by six votes to one, that the applicant’s right to freedom of expression under Article 10 of the Convention had been violated.
The applicant’s submission before the ECtHR identified his challenge to be to the principle on the basis of which he had been convicted and denied his freedom of expression rather than to the modest penalty imposed on him. By relying on Colombani and Others v. France [ECHR] (2002) 51279/99, the applicant asserted that the offence of insulting a foreign Head of State as formulated in Section 36 of the Act of 1881 had been abolished due to the inability to rely on a defence of justification in cases charged under the said provision vis-à-vis under the law of defamation. As per the Court, denying applicants from tendering a justification was an excessive measure to protect the reputation and rights of a person, including of the Head of the State. The applicant, thus, urged the Court to conclude that the offence of insulting the President was a breach of the Convention due to the relevant procedural rules mirroring those formulated in the repealed Section 36 of the Act of 1881. In his submissions, the applicant suggested to the Court that the President should instead be one of the authorities enumerated in Section 31 of the Act of 1881, which contained a list of persons who were covered by special rules which protected them from abuses of freedom of expression by way of increased penalties where the charges were proved, but also provided the accused with an opportunity to defend himself [para. 39]. The applicant also argued that by portraying his political involvement and his activities as that of a “militant socialist”, the Court of Appeal ruled out good faith on his part by making a subjective assessment of the facts of the case [para. 38].
On the other hand, the Government’s submission questioned whether the phrase employed by the applicant as a private individual outside of the context of a debate on an issue of public interest and devoid of markers of it being an expression of opinion could be covered within Article 10(1) of the Convention. The Government further asserted that even if the expression itself could be covered by Article 10(1), the applicant’s conviction for it was prescribed by law and was necessitated in a democratic society in order to prevent disorder. The Government argued that in democratic societies, institutional representatives who are embodiments of State authorities must be protected from physical and verbal attacks which have the capacity to undermine State institutions themselves, and that the protection conferred by the law on the President met a pressing social need [paras. 41 and 42]. The Government observed that since the phrase employed in the present matter could not be considered to contribute to a public debate, had been uttered on a public highway and not at a political event, and that the applicant was not a representative of the press or the people, the State enjoyed a wide margin of appreciation with respect to the offending expression. The Government distinguished the facts of the present matter from those in Colombani by arguing that the purpose with which the phrase was employed by the applicant in the present matter was to insult the President, rather than to convey verifiable information to the public on a debate of general interest. It was also submitted that while the Government was cognizant of the wider limits of permissible criticism with regards to public figures such as politicians, the principle was qualified when the criticism took the form of insulting comments, such as in the present matter [para. 45]. By relying on Castells v. Spain [ECHR] (1992) 11798/85, the Government lastly contended that the domestic courts had displayed restraint while convicting the applicant and had imposed a modest penalty on him, thus ensuring that the conviction was proportionate.
The Court’s findings
The ECtHR noted that the applicant’s conviction for waving a placard with the phrase “Casse toi pov’con” was equivalent to an interference with his right to freedom of expression by a public authority. Therefore, the contentions put forth by the Government had to be analysed by the Court from the framework of the restrictions stipulated in Article 10(2) of the Convention. As per the Court, the conviction would infringe the Convention unless it was prescribed by law, in pursuit of one or more of the legitimate aims detailed in Article 10(2), and necessary in a democratic society to achieve the said aim(s). With respect to whether the interference was prescribed by law, the Court’s examination revealed that since the decisions of the French domestic courts had been made by reference to the Act of 1881, Sections 23 and 26 in particular, the interference was prescribed by law. With respect to whether the interference pursued legitimate aim(s), the Court noted that though the Government had contended that the aim was to prevent disorder, the arguments put forth pointed towards the purpose being that of protecting the reputation of others.
The Court’s determination of whether the applicant’s conviction was violative of his right to freedom of expression under Article 10 of the Convention was thus dependent on the finding of the Court on the question of whether the interference was “necessary” in a democratic society in order to achieve the legitimate aim pursued. The Court reiterated certain general principles before applying them to the facts of the present matter which bear repetition in this case analysis. The Court noted, firstly, that the role of the ECtHR is supervisory rather than substitutive of the national authorities, and that this supervision entails examining the interference in “light of the case as a whole, including the content of the comments held against the applicants and the context in which they made them” [para 51] as held in News Verlags GmbH & Co. KG v. Austria [ECHR] (2000) 31457/96 aside from ascertaining whether States are exercising their discretion reasonably and carefully. The Court observed, secondly, that its determination of whether an interference is “necessary” entails an assessment of whether the reasons offered by the domestic authorities are “relevant and sufficient” and whether the measures imposed are “proportionate” to the aims pursued [para 52]. During the assessment, the Court is required to satisfy itself that the standards applied by the domestic authorities conform to the principles embodied in Article 10 of the Convention and are resultant of an acceptable assessment of the relevant facts of the matter [para 52].
In the present matter, the Court noted that while the phrase “Casse toi pov’con” as written on a placard and waved by the applicant was insulting to the President in literal terms, it had to be examined in light of the case as a whole, its form and context of being a repetition of a previous statement as well as with respect to the status of the individual towards whom it was directed and the applicant’s own position [para. 53]. The Court framed its assessment as dependent on the answer to the question of whether the restriction imposed could be weighed against the interests of open discussions on matters of public interest [para. 56]. The Court reasoned that the repetition of a phrase previously employed by the President could not be concluded to merely be a gratuitous personal attack against him or to have targeted his private life or honour [para. 57]. Rather, as per the ECtHR, the applicant’s intention seemed to be that of levelling criticism of a political nature at the President. This examination was in fact, as per the ECtHR, made more robust when viewed in the context of the applicant’s background of having been an activist and an elected representative who had been at the helm of a campaign to support a Turkish family residing unlawfully in France.
Though the campaign had ended in failure as the family had been deported, unlike the Court of Appeal who found the applicant to have insulted the President due to his bitterness, the ECtHR drew a link between his political involvement and the nature of the phrase used by him to hold that the usage of the phrase indicated criticism of a political nature. The Court, in making such an observation, anchored the narrative of the decision in the context of the scant scope under Article 10(2) of the Convention for States to restrict the freedom of expression in the areas of political speech or debate or in matters of public interest due to the immense importance of the freedom in such areas [para. 59]. The Court added that the limits of acceptable criticism were wider with respect to public figures such as politicians vis-à-vis private individuals due to the former exposing themselves to scrutiny, not only from the press but also from the public at large. Thus, such figures have to display a greater degree of tolerance, as per the Court.
Pertinently, the Court further held that by repeating a much-publicized phrase uttered previously by the President, which had been commented upon widely in the media in a largely humorous tone, the applicant had expressed his criticism through the “medium of irreverent satire” [para 60]. The Court, relying on decisions delivered by it in Vereinigung Bildender Künstler v. Austria [ECHR] (2007) 8354/01, Alves da Silva v. Portugal [ECHR] (2009) 41665/07, and Tuşalp v. Turkey [ECHR] (2012) 32131/08 and 41617/08, reiterated that “satire is a form of artistic expression and social commentary which, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate” [para. 60] and that any interference with the use of satire as a means of expression should be examined with particular care. According to the Court, the imposition of criminal penalties for conduct like that of the applicant’s in the present matter is likely to “have a chilling effect on satirical forms of expression relating to topical issues” [para. 61], which would be detrimental in democratic societies given the important role such forms of expression can play in matters of public interest.
The Court, prior to delving into the issues discussed above, stated that there was no need for it to ascertain whether the categorization of the applicant’s acts as criminal was compatible with the Convention as the categorization had not conferred a privileged status on the President vis-à-vis the right for information and opinions to be conveyed about him. The Court noted that several factors had aided arrival at this conclusion. The first was that the interference with the applicant’s freedom was unconnected with the interests of the press, and consequently, the case could not be appropriately examined in light of Colombani and Others v. France [ECHR] (2002) 51279/99. The second was that in the present matter the prosecution had been initiated by the office of the public prosecutor and not the President, as prescribed by law. The third was that given that the applicant had not claimed that the President had spoken or acted offensively towards him, or used the phrase as an allegation, he could not claim provocation or justification as a defence. While “good faith” could have served as a justification, the domestic courts had eliminated it as a possibility due to his background as a political activist and the nature of the phrase.
The Court, thus, on the basis of the foregoing, concluded that the interference by the domestic authorities with the applicant’s freedom of expression was not necessary in a democratic society as the recourse to a criminal penalty was disproportionate to the legitimate aim pursued. Accordingly, a violation of the applicant’s right pursuant to Article 10 of the Convention was pronounced, by six votes to one. By five votes to two, the Court held that given the circumstances of the case, the finding of a violation was sufficient just satisfaction in itself in this matter, and refused to grant the applicant 5,000 euros (EUR) claimed by him from the Respondent State in respect of non-pecuniary damages.
Partly Dissenting Opinion of Judge Power-Forde and Declaration by Judge Yudkivska
Despite agreeing with the majority’s finding that the applicant’s right to freedom of expression as recognized by Article 10 of the Convention had been violated by the actions of the Respondent State, Judge Power-Forde disagreed with the majority that the finding in itself constituted just satisfaction in this judgment. Judge Power-Forde opined that modest as the penalty imposed on the applicant may have been, being subjected to a criminal trial and being convicted for exercising his freedom of expression must have resulted in “anxiety, apprehension, and distress” [Partly Dissenting Opinion of Judge Power-Forde, pp. 16]. Consequently, as per Judge Power-Forde, the majority should have awarded the applicant the compensation of 5,000 euros (EUR) sought by him in alignment with the Court’s usual practice in cases pertaining to Article 10 as he was entitled to “something more than a mere moral victory or the satisfaction of having contributed to enriching the Court’s case-law” [Partly Dissenting Opinion of Judge Power-Forde citing Kingsley v. the United Kingdom [ECHR] (2002) 35605/97, pp. 16].
Judge Power-Forde, in her partly Dissenting Opinion, also departed from the rationale proposed by the majority for distinguishing between the applicant in the present matter and those in Colombani. She opined that the majority should have affirmed the applicability of the principles laid down by the Court in Colombani, that is, criminal offences for insulting the Heads of State do confer a special legal status on them which “shields them from criticism solely on account of their function or status, irrespective of whether the criticism is warranted” and which, by their very existence, “inhibit and undermine freedom of expression without meeting any “pressing social need” that was capable of justifying such a restriction” [Partly Dissenting Opinion of Judge Power-Forde citing Colombani and Others v. France [ECHR] (2002) 51279/99, pp. 16]. She also reiterated that such a privilege is irreconcilable with practices and conceptions in modern political societies as the privilege exceeds the limits of what is necessary for the objective of maintaining friendly relations with Heads of other States to be attained. Judge Yudkivska issued a declaration explaining that she too disagreed with the majority on their decision to hold the finding of a violation as just satisfaction in the present matter for the same reasons as those expressed by Judge Power-Forde in her partly Dissenting Opinion.
Partly Dissenting Opinion of Judge Pejchal
As per the partly Dissenting Opinion of Judge Pejchal, the complaint lodged by the applicant should have been declared inadmissible due to the absence of significant disadvantage. He stated that as per paragraph 80 of the Explanatory Report to Protocol No. 14 of the Convention, there are two important elements constituting the new admissibility criterion – “a significant disadvantage suffered” (main element) and “its openness to interpretation” (additional element). He added that while all considerations made by the Court must take account of the significant disadvantage suffered by the applicant, and that any considerations made by the Court are tantamount to interpretation of the Convention, the interpretation must operationalize within the limits of international law. According to him, though generally the facts of the present matter may be adjudicated as being a violation of Article 10 of the Convention, it was not for the Court to indulge in a “philosophical disputation” [Partly Dissenting Opinion of Judge Pejchal, pp. 18] about whether a right has been violated. The role of the Court, as per Judge Pejchal, was to render an individual decision on an alleged violation, which was inclusive of an individual decision on whether the applicant has suffered a significant disadvantage. Judge Pejchal concluded that the suspended fine of 30 euros (EUR) could not be considered to be a “significant disadvantage” as per the “ordinary meaning” of the term, and that in his opinion, Eon had suffered no significant disadvantage for the complaint to be admissible.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The finding of the ECtHR state that the applicant’s criminal conviction for waving a satirical placard constitutes an unnecessary interference with his freedom of expression under Article 10 of the Convention due to its disproportionality to the legitimate aim of protecting the reputation of others expands expression. In particular, the Court’s exercise of situating the phrase in the context of it being a repetition of a much-publicized and humorously commented upon statement previously uttered by the President and against the backdrop of the applicant’s political involvement allowed the Court to draw out markers of it being a political criticism expressed through the medium of satire as opposed to a gratuitous personal attack against the President or as targeting his private life or honour. By analysing the facts in such a manner, the Court delivered an emphatic warning to States against interfering with satirical expressions given their capacity to provide a social commentary through provocation, agitation, or exaggeration as well as tethered its judicial reasoning within the need for domestic authorities to assess the context in which such expressions emerge. The Court’s decision, despite not explicitly making a general determination on the appropriateness of the imposition of criminal sanctions for the offense of causing insult, also conveyed the immense importance of freely expressing political criticism in democratic societies and the unlikelihood of criminal sanctions being justifiable to curb it. Interestingly, though considered in scant cases before the EctHR, the assessment by the majority of the determination of a “significant disadvantage” as not being premised solely on the objective seriousness of the quantum of the penalty, but also on the subjective importance of the issue to the applicant, also expands expression by recognizing the non-monetary dimensions of the curtailment of freedom of expression.
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s. 23, 26 and 31
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