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Publication:1998-VII, no. 92
Title:Lehideux and Isorni v. France
Application No:24662/94
Referred by:Commission; Respondent State
Date of reference by Commission:28-05-1997
Date of reference by State:08-08-1997
Date of Judgment:23-09-1998
Conclusion:Violation of article 10
Not appropriate to apply article 17
Compensation awarded for costs and expenses

The case concerned the conviction for 'public defence of war crimes or the crimes of collaboration' following the appearance in a national daily newspaper of an advertisement presenting a positive light on certain acts of Philippe Pétain. The Government considered that the publication in issue infringed the very spirit of the Convention and the essential values of democracy, and argued that the application of Mr. Lehideux and Mr. Isorni was accordingly barred by Article 17. The Court decided to rule on the application of Article 17 in the light of all the circumstances of the case and accordingly to begin by considering the question of compliance with Article 10, whose requirements it would however assess in the light of Article 17.

The Court considered that the conviction in issue amounted to 'interference' with the applicants' exercise of their right to freedom of expression, that it was 'prescribed by law' and that it pursued several of the legitimate aims set forth in Article 10(2), namely protection of the reputation or rights of others and the prevention of disorder or crime. It therefore remained for the Court to determine whether the interference had been 'necessary in a democratic society' for the achievement of those aims. The Court further noted that the applicants had not acted in their personal capacities, as the only names which appeared at the foot of the text in issue were those of the Association for the Defence of the Memory of Marshal Pétain and the National Pétain-Verdun Association, to which readers were invited to write. Since these associations were legally constituted and sought to promote the rehabilitation of Philippe Pétain, it was scarcely surprising to find them supporting, in a publication which they had paid for, one of the rival historical theories, the one which was most favourable to the man whose memory they sought to defend. The Court noted that the Paris Court of Appeal's judgment convicting the applicants was mainly based on the fact that the authors of the text had not distanced themselves from or criticised certain aspects of Philippe Pétain's conduct, and especially the fact that they had put nothing in the text about other events, particularly the signing 'on 3 October 1940, [of] the so-called Act relating to aliens of Jewish race, who were later to be interned in camps set up in France for that purpose, in order to facilitate their conveyance to the Nazi concentration camps which were their intended destination'.

The Court accordingly had to consider whether these criticisms could justify the interference complained of. There was no doubt that, like any other remark directed against the Convention's underlying values, the justification of a pro-Nazi policy could not be allowed to enjoy the protection afforded by Article 10. In the present case, however, the applicants had explicitly stated their disapproval of 'Nazi atrocities and persecutions' and of 'German omnipotence and barbarism'. Thus they had not so much praised a policy as a man, and had done so for a purpose - namely securing revision of Philippe Pétain's conviction - whose pertinence and legitimacy at least, if not the means employed to achieve it, had been recognised by the Court of Appeal. As to the omissions for which the authors of the text had been criticised, the Court did not intend to rule on them in the abstract. These were not omissions about facts of no consequence but about events directly linked with the Holocaust. Admittedly, the authors of the text had referred to 'Nazi barbarism', but without indicating that Philippe Pétain had knowingly contributed to it, particularly through his responsibility for the persecution and deportation to the death camps of tens of thousands of Jews in France. The gravity of these facts, which constituted crimes against humanity, increased the gravity of any attempt to draw a veil over them. Although it was morally reprehensible, however, the fact that the text made no mention of them had to be assessed in the light of a number of other circumstances of the case. These included the fact that the prosecution, whose role it was to represent all the sensibilities which make up the general interest and to assess the rights of others, first decided not to proceed with the case against the applicants in the Criminal Court, then refrained from appealing against the acquittal pronounced by that court and from appealing to the Court of Cassation against the Paris Court of Appeal's judgment of 8 July 1987.

The Court further noted that the events referred to in the publication in issue had occurred more than forty years before. Even though remarks like those the applicants made were always likely to reopen the controversy and bring back memories of past sufferings, the lapse of time made it inappropriate to deal with such remarks, forty years on, with the same severity as ten or twenty years previously. That formed part of the efforts that every country had to make to debate its own history openly and dispassionately. Furthermore, the publication in issue corresponded directly to the object of the associations which had produced it, the Association for the Defence of the Memory of Marshal Pétain and the National Pétain Verdun Association. These associations were legally constituted and no proceedings had been brought against them, either before or after 1984, for pursuing their objects. Lastly, the Court noted the seriousness of a criminal conviction for publicly defending the crimes of collaboration, having regard to the existence of other means of intervention and rebuttal, particularly through civil remedies. In short, the Court considered the applicants' criminal conviction disproportionate and, as such, unnecessary in a democratic society. There had therefore been a breach of Article 10. Having reached that conclusion, the Court considered that it was not appropriate to apply Article 17. The Court considered that the non-pecuniary damage suffered by the applicants was sufficiently made good by the finding of a breach of Article 10. It assessed costs and expenses on an equitable basis.

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Last Modified: 13-01-2014 16:18:19 (Documentation SIM)