Case Summary and Outcome

The Fifth Chamber of the European Court of Human Rights (ECtHR) unanimously found that the sanction imposed on the applicant, Mr. Denis Leroy, for publishing a cartoon about the September 11^th, 2001 terrorist attacks including a caption highlighting his satisfaction with the outcome of the terrorist attacks, did not unlawfully limit the applicant’s freedom of expression, and therefore did not constitute a violation of Articles 9 and 10 of the European Convention on Human Rights (ECHR). The impugned cartoon was published in Ekaitza, a local weekly publication based in the Basque region of France. The applicant was convicted by the Bayonne Criminal Court as an accomplice for condoning terrorism while Ekaitza’s director of publishing was found guilty of condoning terrorism, resulting in fines and an obligation to publish at their own cost the entirety of the Court’s judgment in various publications. After the applicant’s appeals before the Court of Appeals of Pau and the Court of Cassation in France were rejected, he submitted an application to the ECtHR, claiming that his conviction violated his freedom of expression and opinion guaranteed by Articles 9 and 10 of the ECHR, further alleging that he did not receive a fair trial in front of the Court of Cassation in violation of Article 6, Paragraph 1 of the ECHR.

The ECtHR rejected the applicant’s Articles 9 and 10 challenge, as it determined that the French Government’s interference with Leroy’s freedom of expression fell within the legal bounds of Article 10, Paragraph 2 of the ECHR. Central to the ECtHR’s conclusion that the French Government had lawfully restricted Leroy’s freedom of expression was the finding that Leroy’s cartoon went beyond the expression of mere criticism of American imperialism, and rather supported and glorified its violent destruction, as evidenced by the caption Leroy included below his cartoon. The ECtHR also considered the context of the publication, which in its opinion increased Leroy’s responsibility. However, the ECtHR found that the applicant’s right to a fair trial was violated according to Article 6, Paragraph 1 of the ECHR.

Facts

Denis Leroy is a cartoonist whose work is featured in various publications. On September 11^th, 2001, Leroy drew a cartoon depicting the terrorist attacks on the Twin Towers of Manhattan’s World Trade Center. The cartoon contained a caption translating roughly as “We all dreamt it . . . Hamas did it.” [para. 6] The caption drew from a well-known advertising slogan from Sony.

Leroy’s cartoon was published on September 13^th, 2001 in Ekaitza, a Basque weekly publication based in Bayonne, France. The cartoon provoked strong reactions among the publication’s readership, and the subsequent issue of Ekaitza included a message of support from the weekly management team for Leroy. The issue also included a message from Leroy, who indicated that his motivation to draw the cartoon in the hours that followed the attacks was to illustrate the fall of symbols and that he had not taken into account the human suffering underlying the day’s events, nor the potential repercussions of his cartoon. Leroy also underlined his anti-Americanism, highlighting his strong belief that the United States’s foreign policy destabilized parts of the world like Iraq.

The public prosecutor of Bayonne opened proceedings against Leroy and Ekaitza’s publishing director for complicity in condoning terrorism and condoning terrorism charges, respectively. On January 8^th, 2002, the Criminal Court of Bayonne convicted Leroy and the publishing director of the aforementioned charges. The Court fined each defendant €1,500, required them to publish the Court’s judgment in its entirety in Ekaitza and two other publications, and ordered them to pay costs. The Court noted in its judgment that the caption in the cartoon gave unequivocal praise to an act of violence. The Court expressed its desire to tailor its decision to the fact that “public order in the [Basque] region is particularly sensitive to terrorism.” [para 12]

Leroy appealed the Court’s decision before the Court of Appeals of Pau, which affirmed the Bayonne Criminal Court’s judgment. In a September 24^th, 2002 judgment, the Court of Appeals of Pau concluded that the cartoon did not benefit from Article 10 ECHR protection. Leroy once more appealed to the Court of Cassation, which rejected Leroy’s appeal arguing that the Court of Appeals of Pau had correctly considered the facts of that case and was equally correct in finding that Leroy had been complicit in condoning terrorism. Leroy lodged an application to the ECtHR on November 12^th, 2003, alleging that his conviction violated his freedom of expression and opinion as guaranteed by Articles 9 and 10 of the ECHR, and further alleging that he did not receive a fair trial in front of the Court of Cassation, which violated Article 6, Paragraph 1 of the ECHR.

Decision Overview

The Fifth Chamber of the European Court of Human Rights had to decide whether the criminal convictions issued by domestic courts against the applicant —after publishing a cartoon depicting the September 11^th, 2001 terrorist attacks with a caption highlighting his satisfaction with the outcome of the events— violated his freedom of expression.

The applicant argued that he merely aimed to criticize American capitalism and imperialism and that his opinion was protected by the right to freedom of expression as enshrined in Article 10 of the ECHR

According to the French Government, the sanction levied on Leroy fell within the legal bounds listed in Article 10, Paragraph 2 of the ECHR, which allows restrictions to the exercise of freedom of expression to the extent necessary to protect the viability of a democratic society. The French Government invoked Article 24 of France’s Law of July 29^th, 1881, which criminalizes the incitement or condoning of terrorist acts. For France, this law advanced the legitimate goal of protecting public safety and order and fostered crime prevention.

On the issue of Leroy’s sanction falling within Article 10, Paragraph 2 of the ECHR, the ECtHR’s analysis centered on whether France’s interference with the applicant’s freedom of expression was necessary in a democratic society to maintain public order and safety, and to foster crime prevention.

The ECtHR employed a balancing approach, weighing individual freedom of expression and a democratic society’s legitimate right to protect itself against terrorism, as enunciated in Zana v. Turkey, No 69/1996/688/880, § 55 (1997)—which explained the Court’s role in policing governmental intrusions with a person’s freedom of expression when in collision with a democratic society’s legitimate right to protect itself against terrorist threats. The ECtHR placed particular emphasis on the caption used to illustrate the drawing and the context under which the cartoon was published while accounting for the difficulties associated with fighting terrorism. The Court also recognized the language specific to caricatures, which are by definition a provocative form of artistic expression, as explained in Vereinigung Bildender Künstler v. Austria, No 68354/01, § 33 (2007).

In applying the above legal standards, the Court concluded that the Bayonne Criminal Court Judge could reasonably hold that the French Government’s interference with Leroy’s exercise of his freedom of speech was necessary in a democratic society as contemplated by Article 10, Paragraph 2 of the ECHR. The Court found that the caption used by Leroy expressed support and moral solidarity with the presumed architects of the September 11^th attacks. The Court also found that the timing of Leroy’s cartoon, drawn on the day of the attacks and published two days later, increased the applicant’s responsibility in his account of the September 11^th attacks. Furthering its contextual analysis, the Court considered the sensitive political climate in the Basque region and concluded that Leroy’s cartoon solicited public reaction “capable of fueling violence and demonstrating a plausible impact on public order in the region.” [para. 45]

As for Leroy’s Article 6, Paragraph 1 challenge, the applicant alleged that he received no explanatory notes from the Court of Cassation after it received his appeal on September 26^th, 2002. Leroy further alleged that he received no information about the date of his hearing before the Court of Cassation nor the possibility of consulting the reporting judge’s report.

The ECtHR considered that the Court of Cassation’s failure to provide Leroy with appropriate notices and communications violated his right to a fair trial under Article 6, Paragraph 1 of the ECHR (citing Bertin v. France, No 55917/00, § 26 (2006) and Ledru v. France, No 38615/02, § 15 (2007)). The Court, in support of this finding, noted that Leroy was not informed by letter of the date of the filing of the reporting judge’s report nor had the possibility of consulting it.

In sum, the ECtHR denied Leroy’s Article 10 challenge to his conviction—as an accomplice in condoning terrorism—but granted him relief based on his Article 6, Paragraph 1 challenge. In light of the Court’s findings regarding the right to a fair trial, the ECtHR ruled that the French Government must pay €1,000 to Leroy to cover fees and expenses.