Content Regulation / Censorship, Hate Speech, Political Expression
Gündüz v. Turkey
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The Chamber of the Fifth Section of the European Court of Human Rights (ECtHR/Court) found a violation of Article 10 (freedom of expression) of the European Convention on Human Rights in a case concerning the publication of a newspaper article containing a critical analysis of the particular doctrine of the Catholic Church and its conceivable connections with the origins of the Holocaust. This led to a criminal complaint against the Applicant, the newspaper, and its Publishing Director, alleging racially defamatory statements against the Christian community. The National Court found the Applicant guilty of defamation towards a religious group and directed them to pay damages and ordered the publication of their decision at his expense. The ECtHR found that the article contributed to a legitimate public debate on the causes of the Jewish extermination during the Holocaust. They emphasized the importance of freedom of expression and the need for a democratic society to allow discussions on such grave matters. The Court noted that the article did not attack religious beliefs but expressed the author’s perspective as a journalist and historian. It determined that the article was not gratuitously offensive, did not incite disrespect or hatred, and did not question established historical facts.
In January 1994, the Applicant, Paul Giniewski, a journalist, sociologist, and historian wrote an article titled “The obscurity of error” for the newspaper Le Quotidien de Paris, discussing the papal encyclical “The Splendour of Truth” (Veritatis Splendor). The article contained a critical analysis of the doctrine of the ‘fulfillment’ of the Old Covenant and its possible links with the origins of the Holocaust. Following its publication, on March 18, 1994, the association General Alliance against Racism and for Respect for the French and Christian Identity (AGRIF) filed a lawsuit against Mr. P. Tesson, the Publishing Director of the newspaper, the Applicant, and the newspaper itself.
AGRIF alleged that the article contained racially defamatory statements against the Christian community, which violated the Freedom of the Press Act of 1881. The lawsuit referred to specific passages in the article, such as the Catholic Church positioning itself as the sole keeper of divine truth, proclaiming the superiority of the New Covenant over the Old Covenant, and suggesting a link between scriptural anti-Judaism, the doctrine of the “fulfillment” of the Old Covenant in the New, and the rise of anti-Semitism that ultimately contributed to Auschwitz.
On October 4, 1994, the Criminal Court dismissed the objections of invalidity raised by the Applicant and allowed the case to proceed to trial. On March 8, 1995, the Criminal Court found the Publishing Director and the Applicant guilty of publicly defaming the Christian community based on their religion. They were each fined 6,000 French francs (approx. 984 USD). The Court also ruled in favor of AGRIF’s civil application, ordering the publishing director and the Applicant to pay the association one franc in damages and 7,000 French francs (approx. 1147 USD) as per Article 475-1 of the French’s Code of Criminal Procedure. Additionally, the Court mandated that the decision be published in a national newspaper at the defendants’ expense, up to 10,000 French francs (approx. 1640 USD).
The Applicant appealed against the Criminal Court before the Paris Court of Appeal. On November 9, 1995, the Court of Appeal in its ruling, upheld the previous judgment from October 4, 1994, concerning the Applicant’s case, but overturned the judgment from March 8, 1995. Consequently, the Court of Appeal acquitted the Applicant and dismissed the civil claims against him. In its ruling, the Court of Appeal acknowledged that Giniewski’s statements asserted a connection between certain Catholic principles and anti-Semitism, attributing a role in the Holocaust. However, the Court concluded that Giniewski’s strong critique of the encyclical initiated a theological and historical discussion regarding the implications of religious principles and the origins of the Holocaust. As this discussion centered on matters of doctrine, the Court determined that Giniewski’s argument did not constitute a specific factual statement that could be considered defamatory.
AGRIF appealed the case, and on April 28, 1998, the Court of Cassation overturned the Paris Court of Appeal’s civil action judgment while upholding other provisions. The case was then referred to the Orléans Court of Appeal. The Court of Cassation criticized the lack of legal basis in the Paris Court of Appeal’s decision, which had attributed incitement to anti-Semitism and responsibility for the Auschwitz massacres to the Catholic community. On December 14, 1998, the Orléans Court of Appeal ruled on the civil claims, following the analysis of the Court of Cassation. It upheld the previous judgments from October 4, 1994, and March 8, 1995, regarding the Applicant. The Court of Appeal awarded an additional sum of 10,000 French francs to AGRIF under Article 475-1 of the Code of Criminal Procedure. Furthermore, the Court ordered the defendant to publish a statement, at their expense, in a national newspaper chosen by the civil party.
The Court of Appeal acknowledged that the defendant wrongly denied accusing Catholics and Christians of responsibility for the Nazi massacres. Although the responsibility was attributed to Catholics in a long-term context, the Court clarified that the Pope and the Church of France did not directly hold them accountable for Auschwitz. However, Christians were deemed victims of defamation due to their religious affiliation. The Court highlighted the article’s intense tone, the connection made between the “doctrine of fulfillment” and Auschwitz, and the use of the word “Auschwitz” itself, which evoked genocide and the extermination of Nazi regime opponents. Consequently, the Court concluded that the author lacked good faith.
The Applicant appealed the decision but was unsuccessful in challenging it before the French Supreme Court.
The ECtHR delivered a unanimous judgment finding a violation of Article 10 of ECHR. The primary issue for the ECtHR’s determination was whether the Applicants’ freedom of expression was violated by the French Court’s decision to convict him based on the publication of a newspaper article.
The Applicant contended that his conviction for publishing the article violated his freedom of expression. The Applicant disregarded the interpretation given by the domestic courts and asserts that his article criticized the Catholic Church’s attitude as the self-proclaimed “sole keeper of divine truth.” The Applicant asserted that he intended to demonstrate that the doctrine of supremacy, expressed through the primacy given to the New Covenant, belittled the Old Covenant between God and the Jewish people, leading to anti-Semitism and Auschwitz. The Applicant clarified that his article did not attribute intrinsic anti-Semitism to the Catholic Church but rather highlighted the connection between “scriptural anti-Judaism” and anti-Semitism. The Applicant contended that the courts erroneously extrapolated his statements to Christianity as a whole, despite his specific reference to the Catholic Church. [para. 27]
Furthermore, the Applicant contended that the case differs from previous judgments and emphasizes that the issue lies in assessing the idea expressed in the article, rather than its form. As a historian and experienced journalist, he sought to contribute to the discussion on the origins of anti-Semitism and the extermination of the Jews, participating in a public debate. [para. 28] Despite the possibility of offending or shocking readers, he maintains that his conviction was not necessary in a democratic society, considering the factors outlined. Lastly, the Applicant highlighted that the proceedings primarily revolve around the principle of his conviction, not the pecuniary penalties. [para. 29]
The Government acknowledged that the Applicant’s conviction constituted an interference with his freedom of expression under the law. [para. 31] However, they contended that the complaint under Article 10 of the Convention was unfounded. [para 31] The Government asserted that the interference aimed to protect the reputation or rights of others, specifically Christians, which was a legitimate aim under Article 10(2). [para. 32] The Government contended that the interference was necessary in a democratic society, meeting the criteria of necessity and proportionality established by the Court’s case law and considering the margin of appreciation granted to national authorities. [para 33] The Government defended the domestic courts’ decisions, stating that the grounds on which the courts based their judgments were relevant and sufficient, as they conducted a thorough analysis of the disputed statements. [para. 34]
Regarding proportionality, the Government contended that the Applicant’s statements were directed against a large group, the Christian community, through a national newspaper, and had serious implications. [para. 35] They acknowledged that the margin of appreciation was limited in cases involving freedom of expression on political or serious public concerns but argued that a wider margin could be applied when it came to attacks on religious convictions. Alternatively, the Government asserted that if the Applicant’s statements were interpreted as value judgments, they went beyond participating in a historical debate and amounted to defamatory confusion by attributing part of the responsibility for a heinous crime to the Catholic Church. [para. 36] Lastly, the Government highlighted the limited pecuniary penalty imposed on the Applicant and asserted that the domestic courts had struck a fair balance between freedom of expression and respect for the rights of others. [para. 37]
The ECtHR acknowledged that the conviction constituted an interference with the freedom of expression of the individuals involved. Such interference would be a violation of Article 10 unless it was following the law, pursued a legitimate aim as stated in paragraph 2, and was deemed necessary in a democratic society to achieve those aims. [para. 49] Applying the three-fold proportionality test, the ECtHR found that the interference with freedom of expression met the first two prongs of the test. Firstly, the Court determined that the interference was prescribed by law, specifically Sections 29 and 32, of the Freedom of the Press Act of 1881, as acknowledged by the national Courts. [para. 50] Secondly, the Court acknowledged that the legitimate aim of the interference was to protect the Christian community from defamation based on their religious affiliation. This objective aligns with the Convention’s goal of protecting the reputation and rights of individuals (Article 10(2)), as well as the objective of upholding religious freedom. [Article 9]
On the determination of whether the interference was “necessary” in a democratic society to achieve the legitimate aims pursued, the Court referred Handyside v The United Kingdom, (1976) and observed that the exercise of freedom of expression carries responsibilities, including avoiding gratuitously offensive expressions that infringe upon the rights of others. [Wingrove v. the United Kingdom, (1996); Otto-Preminger Institute v Austria, (1994) and Gündüz v Turkey, (2003)] These obligations apply particularly to religious opinions and beliefs, aiming to foster productive public debate. [para. 43] The Court acknowledged the margin of appreciation enjoyed by the Contracting States in determining necessary restrictions on rights and freedoms, especially concerning matters that may offend personal religious convictions. [para. 44] The Court noted that the Applicant’s article accused the encyclical “The Splendour of Truth” of promoting a doctrine allegedly linked to anti-Semitism and the Holocaust. [para. 45] However, the Court rejected the Domestic Courts’ rationale that this accusation implicated Catholics and Christians as responsible for Nazi massacres, resulting in defamation based on religious beliefs. [paras. 46-47] The Court noted that, firstly, the defamation claim was brought by an association, and the Domestic Court refrained from commenting on its representativeness or evaluating its interests. [para. 48] Moreover, the Applicant’s criticism was specific to a doctrine and did not extend to Christianity as a whole, given the existence of diverse strands within the faith [para. 49] The Court considered the article as contributing to an ongoing and broad debate without unnecessary controversy. [para. 50]
Furthermore, the Court observed that the article in question contributed to the ongoing debate about the reasons behind the Holocaust, which is a matter of indisputable public interest in a democratic society. The Court emphasized the importance of allowing free debate on the causes of such grave crimes against humanity and recognized the role of freedom of expression in seeking historical truth. [para. 51] [Lehideux and Isorni v. France, (1998) and Chauvy and Others v. France, (2004)] Although the published article may contain offensive or disturbing views, the Court reiterated that the expression of such views does not automatically infringe upon freedom of expression. The article in question was not gratuitously offensive, insulting, or inciting disrespect or hatred, nor did it cast doubt on established historical facts. [para. 52] [De Haes and Gijsels v. Belgium, (1997); İ.A. v. Turkey, (2005); and Garaudy v. France, (2003)] The Court held that considering the above reasoning, the rationale provided by the French Courts to justify the Applicant’s conviction was insufficient to demonstrate that the interference with the Applicant’s freedom of expression was necessary for a democratic society. The conviction for public defamation towards the Christian community did not meet a pressing social need. [para. 53]
On the subject of proportionality of the interference in issue to the legitimate aim pursued, the Court refers to Pedersen and Baadsgaard v. Denmark, (2004) & Jersild v. Denmark, (1994), and reiterates that the severity of the penalties imposed and their potential to discourage press participation in discussions of legitimate public interest were taken into account. While publishing a notice of the ruling in a national newspaper and paying minimal damages may not inherently constitute an excessive restriction on freedom of expression, the mention of the criminal offense of defamation had a deterrent effect, and the sanction appeared disproportionate given the importance and interest of the debate. [paras 54-55]
Therefore, the Court concluded that there was a violation of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Judgment expands the principle of freedom of expression by emphasizing the importance of open and unrestricted debates on matters of public interest, including the causes and consequences of historical events such as the Holocaust. It highlights that restrictions on freedom of expression should be strictly construed and that individuals have the right to express views and opinions, even if they may offend or disturb others. The Court’s ruling reaffirms the value of robust public discourse and protects individuals’ right to express controversial or unpopular ideas without fear of disproportionate penalties or censorship.
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