Case Summary and Outcome

The European Court of Human Rights found no violation of a Mayor’s right to freedom of expression based on his conviction of incitement to discrimination. Willem, the Mayor of Seclin at the material time, announced that he intended to use his position to boycott Israeli products in the municipality. He was sentenced and fined 1,000 Euro on the grounds that he incited discrimination. The Fifth Section of the European Court of Human Rights, satisfied with the two pronged test under Article 10, further investigated whether the impugned measure was necessary in a democratic society. It found, by 6 votes to 1, that the restriction had been proportionate to the legitimate aim of preventing the incitement to discrimination. The Court argued, amongst other reasons, that the in his capacity as a mayor, the applicant had to maintain a certain neutrality and have a duty of reservation in actions. Emphasis was placed on the fact that the impugned measure was necessary in a democratic society while the penalty imposed was small and thus proportional to the aim pursued.

Facts

In 2002, during a town council meeting of Seclin, the applicant (mayor of the town) publicly informed his intention to  boycott Israeli products on the territory of his town, especially fruit juices. His remarks (made in front of journalists) were included in a newspaper as follows: “The Israeli people are not in question, it is a man, Sharon, who is guilty of atrocities, who does not respect any decision of the UN and continues to massacre”.  A complaint was lodged with the public prosecutor by an individual and the Israeli Culture Association in the North. The public prosecutor decided to initiate public action against the applicant, on the basis of “incitement to national, racial, religious discrimination by word, writing or means of audiovisual communication” under Articles 23 and 24 of the law on the press of July 29, 1881. The Lille Criminal Court acquitted the applicant on the grounds of freedom of expression. In 2003, the Attorney General appealed against the judgement. The Court of appeal found the applicant guilty of the offense of incitement to discrimination on the basis of the 1881 law and, in repression, sentenced him to a fine of EUR 1,000.

Decision Overview

The legal test that had to be assessed by the Court was that pertaining to Article 10 of the European Convention on Human Rights (freedom of expression). Quoting authorities such as Lingens v Austria, Fressoz and Roire v France, it noted that interferences with Article 10 must be “in accordance with the law”, directed towards a “legitimate aim” and “necessary in a democratic  society.” The Court was satisfied with the first two prongs of the test but had to further investigate whether the impugned measure was necessary in a democratic society, particularly “whether it was proportionate and whether the reasons provided by the national authorities to justify it were relevant and sufficient” [para. 30].

Referring to Roseiro Bento v. Portugal, the Court referred to the status of the applicant as a mayor, with freedom of expression being “precious for everyone” but “particularly so for an elected representative of the people” [para. 32]. Referring to Almeida Azevedo v Portugal, the Court also noted that the “free play of political debate” is “fundamental, in a democratic society” [para.33]. Moreover, the Court underlined that “in his capacity as mayor, the applicant had duties and responsibilities. He must, in particular, maintain a certain neutrality and have a duty of reservation in his actions when these engage the local authority that he represents as a whole. In this regard, a mayor manages the public funds of the municipality and must not encourage members to spend them according to a discriminatory logic” [para.37].  Also, the Court found that the applicant “was not convicted for his political opinions but for incitement to a discriminatory act” [para.35]. It also noted that without debate or vote on the matter the applicant “cannot claim to have favored free discussion on a subject of general interest” [para. 38].

As such and in line with the margin of appreciation, the Court found the impugned measure to be relevant and sufficient [para. 40] with the fine imposed being relative small and therefore proportional to the aim pursued [para. 41].

In his dissenting opinion, Judge Jungwiert argued that in his opinion, the case involved “public debate of general interest in the context of which it is permissible to resort to a certain amount of exaggeration, even of provocation.” He noted his firm belief that a “democratic society must tolerate and sometimes even encourage such a debate or a call to action.”