Content Regulation / Censorship, Hate Speech, Political Expression
Gündüz v. Turkey
Closed Mixed Outcome
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The Chamber of the Fifth Section of the European Court of Human Rights (ECtHR/Court) found no violation of the right to freedom of expression in a case concerning the French Court’s decision to ban and penalize the book on the ground of provoking hatred and violence. The three Applicants, whose book ‘The Colonization of Europe: True Speech on Immigration and Islam,’ was declared an object of inciting discrimination, hatred, or violence based on origin, race, ethnicity, or religion under French law, claimed a violation of Article 10 under the European Convention of Human Rights (ECHR). The ECtHR concluded that there was no violation of Article 10 since various passages from the book portrayed the targeted communities negatively and depicted immigration as a disastrous phenomenon. The ECtHR affirmed that the reasons provided by the Court of Appeal for the Applicants’ conviction were relevant and sufficient, and the limits imposed did not exceed the domestic authorities’ margin of appreciation.
The case concerned three Applicants. The first Applicant, G. Soulas, was the Editor and Manager of SEDE, the second Applicant, Guillaume Faye, was a doctor of political science, journalist, and writer, and the third Applicant, SEDE, was the publication house [para. 5-6]. Together, the Applicants published a book titled The Colonisation of Europe, discussing immigration and Islam. Faye presented the argument in the book that Europe experienced a gradual takeover by Muslims, with certain territories (such as banlieues in Paris) already under their control. According to the author, the clashes between these groups and the authorities were viewed as the initial stages of a civil war, seen as a necessary step for Europeans to reclaim lost territories from Muslims. Faye advocated for an ethnic war as a required solution [para. 7].
Following the book’s publication, the public prosecutor summoned the Applicants for incitement to discrimination, hatred, or violence based on origin, race, ethnicity, or religion under French law. On December 14, 2000, the Paris Tribunal de Grande found the writer and the manager of the publishing house guilty, as the author and accomplice, respectively, for specific passages deemed incriminating under Articles 23 and 24 paragraph 6 of the French Law on Freedom of the press. They were acquitted of the remaining charges. However, they were individually fined 50,000 French francs (approx. 105 USD) and held jointly and severally liable for paying 1 FRF (approx. 0.16 USD) in damages to each civil party. The publishing company was also held civilly liable in the case [para. 8-9].
The Applicants filed an appeal, arguing that Article 24 Paragraph 6 of the French Law violated Articles 9(1), Article 10, and Article 14 of the ECHR. They contended that the provision discriminated by protecting membership in religion while excluding protection for secular ideologies, creating two unequal categories of opinions. They contended that this discrimination could lead to the exclusion of judges suspected of lacking impartiality due to their affiliation with a particular category. The Applicants also maintained that the offence had not been proven [para. 10].
On January 31, 2002, the Paris Court of Appeal issued a judgment, finding the writer and the manager of the publishing house guilty of incitement to hatred and violence against a specific group of people for all the passages in the book. The writer was convicted as the author, and the manager as an accomplice. They were each fined 7,500 EUR (approx. 8,030 USD). The Court of Appeal found that Article 24 Paragraph 6 of the French law was not in violation of Articles 9(1), Article 10, and Article 14 of the ECHR. The Court stated that the prohibition of incitement to discrimination applied to both individuals belonging to a religion and those who did not belong to any religion. It emphasized that the provision did not establish an unequal or discriminatory protection system favouring religious individuals over atheists, thus not infringing on the freedom of thought, conscience, and religion.
Regarding the specific passages in question, the Court of Appeal noted that the author referred to immigrants of North African origin and the Muslim faith, as well as immigrants from sub-tropical Africa, as groups of people targeted based on their origin and religion [para. 11-13]. The Court observed various offending passages that conveyed the author’s claims, such as the notion of a “creeping urban guerrilla” and the belief that delinquency among Afro-Maghrebs was a means of territorial conquest. The Applicant in the book contended, for the gradual seizure of political power by Islam in Europe and described an “ethnic civil war” as a necessary solution. The Court concluded that these passages aimed to provoke rejection and antagonism towards the mentioned communities and incited hatred and violence against them. Therefore, the Court of Appeal determined that the offensive remarks constituted the offence of incitement to hatred and violence against these communities, and the Applicants were found guilty of all the passages in the book [para. 14-15].
The Applicants appealed to the Court of Cassation on the same grounds. The Court of Cassation dismissed the appeal and ruled that the arguments presented in the appeal merely reiterated the reasoning already considered by the Court of Appeal, which had correctly dismissed them. Therefore, the Court of Cassation found no grounds to accommodate the appeal [para. 16-17].
The ECtHR delivered a unanimous judgment finding no 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 ban and penalize the book on the ground of provoking hatred and violence.
The Applicants contended that their freedom of expression was violated because the domestic Courts had failed to justify the interference with their rights under Article 10(2) and had failed to demonstrate that an offence had been committed. They contended that the trial judges should have looked beyond the selected passages highlighted by the prosecutor to fully understand the author’s speech. They contended that the judges had not adequately considered the ‘warning to the reader’ at the beginning of the book, which they viewed as an essential clarification. Furthermore, the judges allegedly had not provided enough evidence to support the charge of incitement to hatred and violence [para. 25].
The Applicants further contended that their conviction was unjustified under paragraph 2 of Article 10 of the ECHR. The Applicants emphasized that their application did not seek to condemn France for enforcing Article 24, paragraph 6. Instead, it questioned the merits, in light of the Convention, of assimilating certain intangible states of individuals, such as belonging to an ethnic group, nation, or race, to religion. They contended that religion should have been comparable to an ideological state and subject to criticism. They did not claim a right to racism but denounced the inability to conceptualize faith as a transcendent form of ‘conviction’ or ‘opinion.’ Their concern revolved around whether non-believers, such as atheists, agnostics, or free-thinkers, were equal in dignity and rights to believers. According to the Applicants, neither the government nor the Court of Cassation adequately addressed this question. They contended that anti-religious polemics or the fight against superstitions and fanaticism, whether rightly or wrongly perceived, should not have been considered racism under the Convention [para. 26].
The Government on the contrary contended that the interference was in accordance with the law, referring to Articles 23 and 24 paragraph 6 of the French Law on the freedom of the press. They asserted that the interference pursued a legitimate aim, namely the protection of the rights of people of foreign origin and the fight against racism. Subsequently, the interference was ‘necessary in a democratic society’ because the remarks made targeted a large group of people, went beyond acceptable criticism, and were not based on proven facts [para. 27].
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 in accordance with the law, pursued a legitimate aim as stated in paragraph 2, and was deemed necessary in a democratic society to achieve those aims [para. 28]. Applying the three-fold proportionality test, the ECtHR noted that the interference with freedom of expression satisfied the first two prongs of the test. Firstly, the interference was in accordance with the law as it was based on the relevant provisions of the French Law, specifically Articles 23 and 24 paragraph 6. Secondly, the Court acknowledged that the interference pursued legitimate aims, namely the prevention of disorder and the protection of the reputation and rights of others [para. 29-31].
On the determination of whether the interference was ‘necessary’ in a democratic society to achieve the legitimate aims pursued, the Court made reference to Lehideux and Isorni v. France, (1998) and Ekin Association v. France, (2001), and observed that the condition of ‘necessity in a democratic society’ requires evaluating whether the interference corresponded to a ‘pressing social need.’ While the Contracting States have a margin of appreciation in assessing this need, the Court exercises European control over both the law and its application, even when decisions come from an independent jurisdiction. [Perna v. Italy, (2003)] The Court has the jurisdiction to determine whether a restriction is compatible with the freedom of expression protected by Article 10. In reviewing the case, the Court does not replace domestic Courts but examines their decisions from the perspective of Article 10. The Court made reference to Fressoz and Roire v. France, (1999); News Verlags GmbH & CoKG v. Austria, (2000); & Chauvy and Others v. France, (2004) and observed that it must consider the interference in light of the overall context, including the content of the remarks and the circumstances in which they were made. It must assess whether the reasons provided by national authorities to justify the interference are relevant and sufficient and whether the measure taken is proportionate to the legitimate aims pursued [Zana v . Turkey, (1997)] [para. 32-33].
The ECtHR further referred to Handyside v. the United Kingdom, (1976) and emphasized that freedom of expression is crucial for a democratic society characterized by pluralism, tolerance, and openness. It has repeatedly stressed the significance of freedom of expression, which is a precondition for the proper functioning of democracy [Özgür Gündem v. Turkey (2000)]. The Court also highlighted that freedom of expression applies not only to favourable or harmless information or ideas but also extends to those that offend, shock, or worry. Exceptions to freedom of expression, as outlined in Article 10, must be interpreted narrowly, and any restriction must be convincingly justified [para. 34-35].
Furthermore, the Court noted that the disputed work addresses matters of general interest related to the settlement and integration of immigrants in European societies, particularly in France. The Applicant presents arguments concerning the perceived negative impact of immigration, focusing on individuals of non-European origin, especially Muslims. The Court acknowledges that several passages in the book portray targeted communities negatively and express catastrophism regarding the effects of immigration. While combating racial discrimination is essential, the Court reiterates that restrictions on freedom of expression must be proportionate and narrowly tailored. The Court affirms that the reasons provided by the Court of Appeal for the Applicants’ conviction were relevant and sufficient, and the limits imposed did not exceed the domestic authorities’ margin of appreciation.
Regarding the penalties imposed, the ECtHR referred to Surek v Turkey, (1999) and observed that the nature and severity of the penalties imposed are also factors to be taken into consideration when assessing the proportionality of the interference. [para 45] Although the sums charged to the Applicants might appear high in light of the circumstances, it is noteworthy that they initially faced potential prison sentences. [para 46] Taking all these factors into account, the Court concludes that the interference with the Applicants’ right to freedom of expression was necessary in a democratic society. The Court further determines that the impugned passages in the book do not warrant the application of Article 17 of the Convention, thus rejecting the Government’s objection and finding no violation of Article 10 [para. 48].
On the determination of whether the interference was ‘necessary’ in a democratic society to achieve the legitimate aims pursued, the ECtHR observed that the Applicants complained that Article 24 paragraph 6 of the relevant law was discriminatory and that the French Courts applied different treatment based on the profile of the prosecuted author. However, the ECtHR found that the comparison with foreign authors provided by the Applicants was not substantiated. Therefore, this complaint was dismissed as manifestly ill-founded [para. 49-51].
Regarding the alleged violation of Article 6(1) and Articles 9 read with Article 14 of the Convention, the Applicants claimed a lack of fairness in the proceedings and argued that the judgment delivered by the Court of Cassation was not sufficiently reasoned. The Applicant also contended that Article 24 paragraph 6 of the French Law discriminated in favour of ‘theology’ over ‘ideology.’ The ECtHR determined that the Court of Cassation did not fail in its obligation to state reasons given the specific nature of the cassation proceedings. Additionally, the ECtHR noted that it had already examined the Applicants’ conviction under Article 10 of the Convention, and the arguments made by the Applicants depended on popular action. Consequently, this part of the application was dismissed as manifestly ill-founded [para. 52-54].
In conclusion, the Court dismissed the Government’s objection under Article 17 of the ECHR; and held that there was no violation of Article 10 of the ECHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment does not alter or extend the scope of freedom of expression outlined in Article 10 of the European Convention on Human Rights. Rather, it introduces restrictions on the content of a book, attributing responsibility to those involved in its publication and distribution, while affording the State a considerable degree of discretion (wide margin of appreciation). Additionally, the ruling takes into account the book’s linguistic accessibility, enabling it to have a broad impact.
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Case significance refers to how influential the case is and how its significance changes over time.
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