FIFTH SECTION

CASE OF BALDASSI AND OTHERS v. FRANCE

(Applications no. 15271/16 and 6 others)

JUDGMENT

Art. 10 • Freedom of expression • Action in favour of boycott of Israeli products entailing criminal sanction for discrimination, without relevant and sufficient reasons • Call to boycott protected by Article 10 as means of expression of opinion by way of protest • Differences from Willem v. France • Influence of applicants, ordinary citizens, incomparable to that of a mayor • Action triggering or stimulating debate on subject of general interest • Lack of racist or antisemitic language or speech inciting hatred, violence or intolerance • Lack of violence or material damage

Art. 7 • Nullum crimen sine lege • Existence of precedent making criminal conviction foreseeable

STRASBOURG

11 June 2020

FINAL

11/09/2020

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Baldassi and Others v. France,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Síofra O’Leary, President, Gabriele Kucsko-Stadlmayer, Ganna Yudkivska, André Potocki, Mārtiņš Mits, Lado Chanturia, Anja Seibert-Fohr, judges , and Victor Soloveytchik, Deputy Section Registrar ,

Having regard to:

the seven applications against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the following eleven individuals (“the applicants”): Mr Jean-Michel Baldassi (application no. 15271/16), Mr Henri Eichholtzer (application no. 15280/16), Ms Aline Parmentier (application no. 15282/16) and Ms Sylviane Mure (application no. 15286/16), who lodged their applications on 16 March 2016; Mr Nohammad Akbar (application no. 15842/16) and Mr Maxime Roll (application no. 16207/16), who lodged their applications on 21 March 2016; and Ms Laila Assakali, Mr Yahya Assakali, Mr Jacques Ballouey, Ms Habiba El Jarroudi and Ms Farida Sarr-Trichine (application no. 15724/16), who lodged their application on 18 March 2016; the applicants all being French nationals except for Mr Nohammad Akbar and Ms Habiba El Jarroudi, who are respectively of Afghan and Moroccan nationality;

the decision of 7 April 2017 to give notice of the applications to the French Government (“the Government”);

the observations submitted by the Government and those submitted by the applicants in reply;

the observations of the International Federation for Human Rights (Fédération internationale des ligues des droits de l’Homme (FIDH)) and the Ligue des droits de l’homme, which had been given leave to submit written comments (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court);

Having deliberated in private on 28 April 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The cases concern the criminal conviction of activists for the Palestinian cause, for inciting economic discrimination on the basis of section 24, eighth paragraph, of the Law of 29 July 1881 on freedom of the press, on account of their participation in actions calling for the boycott of products imported from Israel. The applicants complained of a violation of Articles 7 and 10 of the Convention.

THE FACTS

2. Mr Henri Eichholtzer and Ms Aline Parmentier live in Habsheim and Zillisheim, respectively. Mr Jacques Ballouey lived in Mulhouse, as did the other applicants.

3. Ms Laila Assakali, Mr Yahya Assakali, Mr Jacques Ballouey, Ms Habiba El Jarroudi and Ms Farida Sarr-Trichine are represented by Mr Grégory Thuan dit Dieudonné, a lawyer practising in Strasbourg. The other applicants are represented by Mr Antoine Comte, a lawyer practising in Paris.

4. The Government are represented by their agent, Mr F. Alabrune, Directeur of Legal Affairs at the Ministry of Foreign Affairs.

5. The applicants belong to “Collectif Palestine 68”, which acts as a local relay for the international campaign “Boycott, Disinvestment and Sanctions” (BDS). This campaign was launched on 9 July 2005 by an appeal from Palestinian non-governmental organisations, one year after the advisory opinion of the International Court of Justice, which found that “[t]he construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated regime, [were] contrary to international law”. The “Call for Boycott, Divestment and Sanctions against Israel Until it Complies with International Law and Universal Principles of Human Rights” reads as follows (original English):

“... Inspired by the struggle of South Africans against apartheid and in the spirit of international solidarity, moral consistency and resistance to injustice and oppression;

We, representatives of Palestinian civil society , call upon international civil society organizations and people of conscience all over the world to impose broad boycotts and implement divestment initiatives against Israel similar to those applied to South Africa in the apartheid era. We appeal to you to pressure your respective states to impose embargoes and sanctions against Israel. We also invite conscientious Israelis to support this Call, for the sake of justice and genuine peace.

These non-violent punitive measures should be maintained until Israel meets its obligation to recognize the Palestinian people’s inalienable right to self-determination and fully complies with the precepts of international law by:

1. Ending its occupation and colonization of all Arab lands and dismantling the Wall;

2. Recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality; and

3. Respecting, protecting and promoting the rights of Palestinian refugees to return to their homes and properties as stipulated in UN resolution 194.”

6. On 26 September 2009, the applicants Henri Eichholtzer, Aline Parmentier, Jacques Ballouey, Farida Sarr-Trichine and Mohamed Akbar took part in an action organised by “Collectif Palestine 68” inside the C. hypermarket in Illzach, calling for the boycott of Israeli products. They exhibited products that they claimed to be of Israeli origin in three trolleys placed so that customers could see them and handed out leaflets with the following wording (translation):

“You can force Israel to respect human rights. Boycott products imported from Israel.

‘If apartheid (in South Africa) ended, so can the occupation, but the moral force and international pressure will have to be just as determined. The current divestment effort is the first move in that direction’, Archbishop Desmond Tutu, Nobel Peace Prize winner, October 2002.

To buy products imported from Israel is to legitimise the crimes in Gaza, to endorse the policies of Israeli governments.

Some products imported from Israel sold in supermarkets in the Mulhouse area: [list of brands or product names].

Campaign supported by: association France-Palestine Solidarité Haut-Rhin (AFPS 68), association REDA (from the Muslim dynamic presence), Justice for Palestine (JPLP), French Communist Party (PCF-68), Les Verts ... For more information on the boycott... : [indication of Internet links].”

7. A similar event was organised by “Collectif Palestine 68” on 22 May 2010 in the same hypermarket. The applicants Jean-Michel Baldassi, Sylviane Mure, Laila Assakali, Yahya Assakali, Habiba El Jarroubi, Farida Sarr-Trichine, Mohamed Akbar and Maxime Roll took part. The participants also presented a petition to be signed by the customers calling for the hypermarket to stop selling products imported from Israel.

8. No violence or damage was caused.

9. The public prosecutor of Colmar summoned the applicants (and one other person, in relation to the events of 22 May 2010) to appear before the Mulhouse Criminal Court on the following charges:

“... [for having] by means of a written or printed text, drawing, engraving, painting, emblem, image, exhibited in a public place or assembly, namely the premises of the shopping centre [C.], incited discrimination, hatred, or violence, directed against a group of people on account of their origin or the fact of belonging to a given ethnicity, race, religion, or nation; namely by distributing tracts with the following wording: ‘Boycott products imported from Israel, if you buy Israeli products you legitimise crimes in Gaza, you approve of the Israeli government’s policies; a few products imported from Israel on sale in supermarkets in the Mulhouse region [list], and by using the following language: ‘Israel murderers, [C.] accomplice’; offences provided for by section 24, eighth paragraph, section 23, first paragraph [and] section 42 of the Law of 29 July 1881, section 93-3 of Law no. 82-652 of 29 July 1982, sanctions for which are prescribed by section 24, eighth, tenth, eleventh and twelfth paragraphs, of the Law of 29 July 1881, [and] Article 131-26 §§ 2 and 3 of the Criminal Code.”

10. With the exception of Ms Sylviane Mure, Ms Habiba El Jarroudi and Ms Farida Sarr-Trichine, the applicants were also summoned to appear for wearing clothing bearing the inscription “Long live Palestine” and “Boycott Israel”.

11. The hypermarket in question did not apply to join the proceedings as a civil party.

12. In two judgments of 15 December 2011, containing essentially the same reasoning, the Mulhouse Criminal Court acquitted the applicants. It found in particular as follows (extract from the judgment on the events of 22 May 2010):

“ ... The present case has been brought under section 24, eighth paragraph, of the 1881 Law, which authoritatively circumscribes the subject matter pursuant to section 53 of that Law. According to settled case-law, the court must assess the offence in relation to the said characterisation, as stated in the summons, and in accordance with the section of the 1881 Law which is cited therein ...

... The conduct referred to in the summons stems from the expressions ‘Long Live Palestine’, ‘Boycott products imported from Israel’, ‘if you buy Israeli products you legitimise crimes in Gaza, you approve of the Israeli government’s policies’. The language thus used seeks only to incite consumers, in support of the defendants’ action, not to buy Israeli products.

Section 24, eighth paragraph, as referred to in the indictment, is not directed against incitement to economic discrimination, which is defined by Article 225-2 of the Criminal Code as the obstruction of the normal exercise of an economic activity.

The basis for the prosecution is all the more inappropriate since the conduct in question is likely to fall under a specific text, namely sub-section 9 of the same text introduced by the 2004 Act and which refers to acts of economic discrimination provided for and defined by Article 225-2 of the Criminal Code. There is no ambiguity as to the choice of section 24, eighth paragraph, since no reference to Article 225-2 of the Criminal Code, mentioned expressly in section 24, ninth paragraph, is made in the summons served on the defendants.

Some of the civil parties argued that the use of the slogan ‘Israel murderers [C.] accomplice!’ in fact demonstrated the character of incitement to racial hatred of this action in accordance with the provisions of section 24, eighth paragraph.

This slogan, attributed to only some of the defendants, who acknowledged having used it, was also contested by quite a number of other participants, who denied that it had been used, as far as they were concerned, finding the language excessive and not in keeping with the meaning of their action. Most of the defendants, without denying their participation, emphasised, on the contrary, that their demonstration had no religious or antisemitic aims.

The said slogan, which was not expressed in a concerted manner, could not in itself give the impugned statements and acts the character of incitement to racial hatred as provided for by section 124 [ sic ], eighth paragraph. The character of economic discrimination with regard to certain products can clearly be seen from the established acts and statements that have been admitted in evidence.

Moreover, the court below was persuaded that there had been no incitement to racial, or even antisemitic hatred, in view of the nature of the members of ‘Collectif 68’, who were members of associations or political movements not known for racist or antisemitic stances, and also having heard the supportive testimony of Mr [M.], a senator and mayor, and that of Mgr [G.], a bishop, who was known for speaking out in favour of minorities.

Having regard to the legislation referred to in the indictment, namely section 24, eighth paragraph, of the Law of 29 July 1881, the defendants must be acquitted.”

13. In two judgments of 27 November 2013, the Court of Appeal of Colmar overturned the first-instance judgments in so far as they had acquitted the applicants. It found as follows:

“ ... It is of scant relevance that incitement to economic discrimination, as defined in Article 225-2 of the Criminal Code, is characterised as a criminal offence under section 24, ninth paragraph, of the Law of 29 July 1881, in so far as the Criminal Court, when determining the charge as stated, must examine whether the facts referred to it can be attributed the classification provided for in the summons, namely that of section 24, eighth paragraph, without the possibility, in the context of this type of offence, of reclassifying the charge.

It can be seen from the content of the leaflet distributed and from the statements made by the defendants that they, through their action, were causing discrimination against products imported from Israel, inciting the customers of the shop in question not to buy such goods on account of the origin of the producers or suppliers who, constituting a group of persons, belong to a specific nation, in this case Israel, thus constituting a nation within the meaning of the provision characterising the criminal offence and of international law.

Incitement to discrimination cannot be encompassed within the right to freedom of opinion and expression since it constitutes a positive act of rejection, manifested by incitement to bring about a difference in treatment, with regard to a category of persons, in this case the producers of goods based in Israel.

The mere fact that the defendants incited others to discriminate between producers and/or suppliers, in order to reject those from Israel, is sufficient to characterise the material element of the offence in question without it being necessary to show that the products referred to in the distributed leaflet were genuinely of Israeli origin.

Under the head of necessity, it is alleged that there is a disproportion between [ sic ] the fact that consumers were misled about the origin of goods labelled as coming from Israel whereas they could in fact have been produced in the territories occupied by the State of Israel.

Even if it were to transpire that the products at issue were the subject of a false declaration of origin, which has not been proven but is a mere allegation, this fact clearly does not constitute any imminent danger for the defendants or third parties; consequently the provisions of Article 122-7 of the Criminal Code cannot be applied in this case.

The same applies to the provisions of Article 122-4 of the said Code, since although freedom of expression is guaranteed both by the fundamental laws of the Republic and by the conventions recognised by the latter, it must once again be recalled that respect for this right does not authorise its holder, under the guise of this freedom, to commit an offence punishable by law, such as, in the present case, incitement to discrimination.

Consequently, the judgment of the court below is reversed and the defendants are found guilty of the offence as charged; they are each sentenced to a suspended fine of one thousand euros ...”

14. As to the events of 26 September 2009, the Court of Appeal sentenced each of the five defendants to pay a suspended fine of 1,000 euros (EUR). It also ordered them to pay jointly, to each of the four admissible civil parties (the International League Against Racism and Anti-Semitism, the association Avocats sans frontières, the association Alliance France-Israël and the Bureau national de vigilance contre l’antisémitisme), EUR 1,000 for non-pecuniary damage, and EUR 3,000 under Article 475-1 of the Code of Criminal Procedure (expenses incurred by the civil parties and not paid by the State).

15. As to the events of 22 May 2010, the Court of Appeal sentenced each of the nine defendants to a suspended fine of EUR 1,000. In addition it ordered them to pay jointly to three of the civil parties (the International League Against Racism and Anti-Semitism, the association Avocats sans frontières and the association Alliance France-Israël) EUR 1,000 for non-pecuniary damage and EUR 3,000 under Article 475-1 of the Code of Criminal Procedure (expenses incurred by the civil parties and not paid by the State).

16. In two judgments of 20 October 2015 the Criminal Division of the Court of Cassation dismissed the appeals on points of law lodged by the applicants, who claimed in particular that there had been a violation of Articles 7 and 10 of the Convention.

17. It found inter alia that the Court of Appeal had given justification for its judgment since it had rightly noted that the elements of the offence provided for in section 24, eighth paragraph, of the Law of 29 July 1881 were made out, and that the exercise of freedom of expression, as enshrined in Article 10 of the Convention, could be, pursuant to the second paragraph thereof, subjected to restrictions or sanctions constituting, as in the present cases, measures that were necessary in a democratic society for the prevention of disorder and the protection of the rights of others.

RELEVANT DOMESTIC LAW AND PRACTICE

18. At the relevant time, sections 23 and 24 of the Freedom of the Press Act (Law of 29 July 1881) read as follows (as amended by Law no. 2004-1486 of 30 December 2004):

Section 23

“Anyone who, by uttering speeches, cries or threats in a public place or assembly, or by means of a written or printed text, drawing, engraving, painting, emblem, image, or any other written, spoken or pictorial item sold or distributed, offered for sale or exhibited in a public place or assembly, or by means of a placard or notice exhibited in a place where it can be seen by the public, or by any electronic means of communication to the public, has directly incited the perpetrator or perpetrators to commit a serious crime ( crime ) or other major offence ( délit ), and if the incitement has been acted upon, shall be punished as an accomplice in the said offence. ...”

Section 24

“...

[eighth paragraph] Anyone who, by one of the means referred to in section 23, has incited discrimination, hatred or violence against a person or group on account of their origin or the fact of belonging, or not belonging, to a given ethnicity, nation, race or religion, shall be liable to a one-year prison term and a fine of 45,000 euros, or only one of those two sanctions.

[ninth paragraph] Anyone who, by the above means, has incited hatred or violence against a person or group on account of their gender, sexual orientation or disability, or incites against those same persons any of the forms of discrimination provided for in Articles 225-2 and 432-7 of the Criminal Code, shall be liable to the sanctions prescribed by the previous paragraph.

...”

19. At the material time, Articles 122-4, 225-1 and 225-2 of the Criminal Code read as follows:

Article 122-4

“Anyone who performs an act that is prescribed or authorised by legislative or regulatory provisions shall not be criminally liable.

Anyone who performs an act that is ordered by a lawful authority, unless the act is manifestly unlawful, shall not be criminally liable.”

Article 225-1

“Discrimination shall be constituted by any distinction made between individuals on account of their origin, sex, family situation, physical appearance, surname, place of abode, state of health, handicap, genetic traits, morality, sexual orientation, gender identity, age, political opinions, union activities, or the fact of belonging or not belonging, whether this is established or presumed, to a given ethnic group, nation, race or religion.

Discrimination shall also be constituted by any distinction made between legal persons on account of the origin, gender, family situation, physical appearance, surname, place of abode, state of health, handicap, genetic characteristics, morality, sexual orientation, gender identity, age, political opinions, union activities, or the fact of belonging or not belonging, whether this is established or presumed, to a given ethnic group, nation, race or religion, of one or more members of such legal entities.”

Article 225-2

“Discrimination as defined by Article 225-1, when committed against an individual or legal entity, shall be punishable by three years’ imprisonment and a fine of EUR 45,000 where it consists:

1 o in refusing to supply goods or services;

2 o in obstructing the normal exercise of any given economic activity;

3 o in refusing to recruit, sanction or dismiss a person;

4 o in subjecting the supply of goods or services to a condition based on one of the factors referred to in Article 225-1;

5 o in subjecting an offer of employment, an application for a course or a training period to a condition based on one of the factors referred to in Article 225-1;

6 o in refusing to accept a person onto one of the courses referred to in 2 o of Article L.412-8 of the Social Security Code.

Where the discriminatory refusal referred to under point 1 o is committed in a public place or in order to bar access to such place, the maximum sanctions shall be increased to five years’ imprisonment and a fine of EUR 75,000.”

20. On 12 February 2010 the head of the Department of Criminal Affairs and Pardons sent the following Circular to the Principal Public Prosecutors of the Courts of Appeal:

“Since March 2009 the Department of Criminal Affairs and Pardons has been informed of a number of prosecutions concerning calls for a boycott of Israeli products on the basis of public incitement to discrimination as provided for and punished by section 24, eighth paragraph, of the Law of 29 July 1881.

These actions usually take the form of gatherings in shopping centres where calls for a boycott are made. Some of these demonstrations are then broadcast on websites.

In a judgment of 10 February 2010, the Bordeaux Criminal Court convicted an individual on the above-mentioned charge for acts of this kind.

It would seem imperative to ensure that the public prosecutor’s office provides a coherent and firm response to these acts. To this end, and with a view to possibly grouping the prosecutions together for the proper administration of justice, I should like to ask you to inform the Department of Criminal Affairs and Pardons of all the acts of this kind that have been referred to the public prosecutors within the jurisdictions of your courts. If certain proceedings have already been discontinued, I would be grateful if you could describe the facts in detail and indicate the reasoning which led to the relevant decisions. ...”

EXTRACT FROM THE REPORT OF THE SPECIAL RAPPORTEUR ON FREEDOM OF RELIGION OR BELIEF TO THE UN General Assembly, 20 SEPTEMBER 2019

21. In an activity report addressed to the United Nations (UN) General Assembly (UN, official documents, 20 September 2019, A/74/358), the Special Rapporteur on freedom of religion or belief observed as follows:

“18. ... He recalls that international law recognizes boycotts as legitimate forms of political expression and that non-violent expressions of support for boycotts are, as a general matter, legitimate speech that should be protected. However, he also stresses that expression that draws on antisemitic tropes or stereotypes, rejects the right of Israel to exist or advocates discrimination against Jewish individuals because of their religion, should be condemned.”

THE LAW

22. On 15 May 2018 the representative of Mr Jacques Ballouey informed the Court that his client had died. The wife of Mr Jacques Ballouey, Ms Marine Robert, and their son, Mr Bruno Ballouey, indicated that they wished to pursue the proceedings in his stead.

23. The Court observes that it normally permits the next of kin to pursue an application, provided he or she has a legitimate interest, where the original applicant has died after lodging the application (see, among many other authorities, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII, and Murray v. the Netherlands [GC], no. 10511/10, § 79, 26 April 2016). Having regard to the subject matter of the application and the material before it, the Court takes the view that in the present case Ms Marine Robert and Mr Bruno Ballouey have a legitimate interest in pursuing the application in the name of their deceased husband and father and, as a result, have locus standi under Article 34 of the Convention. For practical reasons the Court will continue to refer to the late Mr Jacques Ballouey as one of the “applicants”.

24. In view of the similarity between the applications as regards the facts and the substantive questions that they all raise, the Court considers it appropriate to join them in accordance with Rule 42 § 1 of the Rules of Court.

25. The applicants, relying on Article 7 of the Convention, complained about their conviction under section 24, eighth paragraph, of the Freedom of the Press Act (Law of 29 July 1881) for the offence of incitement to economic discrimination, whereas the said provision did not refer to economic discrimination. They relied on Article 7 of the Convention, which reads as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

26. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

(a) The applicants

27. The applicants pointed out that they had been convicted for incitement to “economic discrimination” under section 24, eighth paragraph, of the Freedom of the Press Act, which made it an offence to incite discrimination, hatred or violence against a person or group on account of their origin or their belonging or not belonging to a particular ethnicity, nation, race or religion, and therefore did not cover economic discrimination, which fell under a different provision (the ninth paragraph of that section), enacted in 2004. They observed that, in the drafting of that legislation, Mr Pascal Clément, then Chair of the Committee on Constitutional Laws, Legislation and the General Administration of the Republic and later Minister of Justice, stated before the National Assembly that the 2004 Law was intended to punish the forms of incitement provided for in the eighth paragraph of section 24 of the Freedom of the Press Act with regard to new categories of people who were victims of economic discrimination, adding that this precision did not exist in the case of incitement to racial, religious or ethnic discrimination.

28. They further argued that their conviction had stemmed from a distortion of the facts, since they had merely expressed criticism of the State – the call for a boycott merely being a means to that end – and such expression was not punishable under French law since the Freedom of the Press Act protected individuals alone.

29. They also stressed that the general nature of the words “incitement to discrimination” contained in the legislative provision was incompatible with Article 7 since it was a broad term applied to a concept, discrimination, which was ambivalent. They further criticised the Court of Appeal and the Court of Cassation for finding that by inciting discrimination against products from Israel, they had encouraged the customers of the shop in question not to buy these goods on account of the origin of the producers or suppliers, who constituted a “group of persons belonging to a particular nation”. In so doing, the courts had established the “Israeli producers” as the group discriminated against on the basis that they belonged to the nation of Israel, but this was at odds with the case-law of the Court of Cassation (they referred to the judgments of the Criminal Division of 3 February 2009 and 1 March 2011).

30. The applicants submitted that many domestic courts had refused to apply section 24, eighth paragraph, of the Freedom of the Press Act to circumstances such as those in their case and that legal commentators had been highly critical of the decisions handed down against them. They further noted that under French criminal law there were no sanctions in respect of calls to boycott certain goods and explained this by two factors. First, such boycotts were part of a long history of non-violent civil protest or opposition, with the aim of informing consumers about the political, economic and ethical significance of their purchases. Secondly, the emergence of consumer rights, including the freedom to choose which goods to buy, for reasons relating to many different considerations, including very personal ones, came into play. The applicants noted that, in examining the impact of oil companies on the environment, parliamentarians had observed that “a call for a boycott as the ultimate weapon of responsible consumption [had to] be regarded as lawful where it [had] been established by credible reports from international organisations and trustworthy non-governmental organisations that a multinational company [was] deliberately and seriously violating international law” (information report on the role of oil companies, National Assembly no. 1859, p. 134). In the present case, therefore, the deliberate and serious violation of international law was attested, in their view, not only by credible reports from international organisations and trustworthy NGOs, but also by the opinion of the International Court of Justice as to the illegality of the Israeli wall of separation, thus unquestionably rendering the call for a boycott lawful.

(b) The Government

31. The Government stated that they did not dispute that the sanction imposed on the applicants had constituted a penalty within the meaning of Article 7 of the Convention. They took the view, however, that the sentence handed down against them had met the requirements of that provision and that it had not therefore been breached.

32. They observed in that connection that the “law” on which the conviction had been based was accessible, since it consisted of sections 23 and 24 of the Freedom of the Press Act (Law of 29 July 1881) together with reported case-law. They submitted that it was also foreseeable. The text of section 24 was clear and precise, and the generic nature of its wording “incitement to discrimination” reflected the legislature’s intention to encompass all forms of discrimination, including economic discrimination. Referring to the judgments of the Criminal Division of the Court of Cassation of 28 September 2004 (no. 03-87.450; concerning the case of Willem v. France , no. 10883/05, 16 July 2009) and 16 April 2013 (no. 13-90.008), the Government added that the Court of Cassation’s position that economic discrimination, particularly in the form of calls for boycotts, fell within the scope of the eighth paragraph of section 24 was long-standing and consistent.

33. This interpretation, in their view, was moreover in line with the text of the law. They observed that the eighth paragraph of section 24 concerned incitement to discriminate against a person or group on account of their origin or their belonging or not belonging to a particular ethnicity, nation, race or religion, whereas the ninth paragraph, inserted by the Law of 30 December 2004, concerned incitement to one of the forms of discrimination defined in Articles 225-2 and 432-7 of the Criminal Code, with regard to a person or group on grounds of gender, sexual orientation or disability, and that the features of such discrimination were more restricted and were listed exhaustively by means of a reference to the said Articles of the Criminal Code. The eighth paragraph, on account of its generic wording, using as it did the term “discrimination”, covered all forms of discrimination, including those falling within the economic field. This was also apparent from the parliamentary debates. As to the ninth paragraph, it had not been intended to introduce economic discrimination into the law, but to punish incitement to hatred, violence or discrimination, not only on account of a person’s origin, but also on the basis of his or her gender, sexual orientation or disability; it therefore sought to restrict the new offence of incitement to discrimination on grounds of gender, sexual orientation or disability to certain forms of discrimination. The Government concluded from this that the Court of Cassation had not reasoned by analogy in holding that the eighth paragraph applied to incitement to economic discrimination, but had confined itself to defining the scope of its application by applying the principle that there was no need to distinguish where the text itself made no distinction.

34. As to the applicants’ contention that the courts had broadened the scope of the offence by extending it from “persons” to “goods”, the Government pointed out that “persons” included legal persons and that, as the advocate-general of the Court of Cassation had stated in the present case, goods could not be artificially dissociated entirely from those who produced, manufactured and supplied them. They pointed out that Article 7 of the Convention did not prohibit judicial interpretations, even extensive ones, provided that they were consistent with the substance of the offence and reasonably foreseeable.

35. The Court would refer to the general principles on Article 7 as set out in particular in its judgment in Vasiliauskas v. Lithuania [GC] (no. 35343/05, §§ 153-157 and 160, ECHR 2015). The main points are as follows. Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. It follows from these principles that an offence must be clearly defined in the law, be it national or international. This requirement is satisfied where the individual can know from the wording of the relevant provision – and, if need be, with the assistance of the courts’ interpretation of it and with informed legal advice – what acts and omissions will make him or her criminally liable. The Court has thus indicated that when speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written as well as unwritten law and implies qualitative requirements, notably those of accessibility and foreseeability.

36. In the present case the applicants were convicted on the basis of the eighth paragraph of section 24 of the Law of 29 July 1881, under which:

“Anyone who, by one of the means referred to in section 23, has incited discrimination, hatred or violence against a person or group on account of their origin or the fact of belonging, or not belonging, to a given ethnicity, nation, race or religion, shall be liable to a one-year prison term and a fine of 45,000 euros, or only one of those two sanctions.”

37. The applicants had been acquitted at first instance, in particular on the grounds that the conduct with which they were charged had sought only to incite consumers not to buy Israeli products, whilst section 24, eighth paragraph, of the Law of 29 July 1881 did not concern “economic” discrimination, this only being contemplated specifically by the ninth paragraph of that Article, which referred to economic discrimination as provided for and defined by Article 225-2 of the Criminal Code. The Colmar Court of Appeal, however, set aside that judgment, finding that the applicants had “incited discrimination against goods from Israel”, by encouraging customers not to buy such goods on account of the origin of the producers, who constituted a “group’” belonging to a given “nation”, namely Israel.

38. The Court observes that, admittedly, the text of section 24, eighth paragraph, of the Law of 29 July 1881 does not expressly refer to incitement to economic discrimination. As to the ninth paragraph, it does expressly concern this form of incitement to discrimination but only on grounds of gender, sexual orientation or disability, and not on account of origin or the fact of belonging to a nation.

39. The Court, however, agrees with the Government that prior to the events in the present case, the Court of Cassation had ruled in favour of applying section 24, eighth paragraph, of the Law of 29 July 1881 in the case of a call to boycott imports from Israel. In the context of the Willem case, cited above, in responding to an argument alleging a failure to adhere to the principle of strict interpretation of the criminal law, the Court of Cassation thus endorsed, by a judgment of 28 September 2004, a judgment of the Douai Court of Appeal of 11 September 2003, which had found as follows:

“[S]ections 23 and 24 of the Law of 29 July 1881 make it a criminal offence to incite ... discrimination by obstructing the normal exercise of any economic activity ... these provisions refer[ring] to Articles 225 ‑ 1 and 225 ‑ 2 of the Criminal Code ...”

The Court of Cassation noted that the judgment appealed against had stated in particular that the defendant in that case, by announcing his intention as mayor to ask the municipality’s catering services to stop buying goods imported from the State of Israel, had incited those services to take account of the origin of the goods and, consequently, to obstruct the economic activity of Israeli producers, the boycott thus being connected with the fact that they belonged to the Israeli “nation”. It found that, in view of the foregoing, and since the dissemination on the municipality’s website of the mayor’s decision to boycott Israeli goods, accompanied by partisan remarks, was capable of inciting discriminatory conduct, as a result of the wide audience of that message, the Court of Appeal had given due justification for its decision.

40. Therefore, as the case-law stood at the time of the relevant events in the present case, the applicants could have known that they were likely to be convicted on the basis of section 24, eighth paragraph, of the Law of 29 July 1881 on account of their call to boycott goods imported from Israel.

42. The applicants complained about their criminal conviction for participating, in the context of the BDS campaign, in actions calling for the boycott of products imported from Israel. They relied on Article 10 of the Convention, which reads:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

43. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

(a) The applicants

44. The applicants recounted that on 9 July 2005, one year after the advisory opinion of the International Court of Justice of 9 July 2004 on the legal consequences of the construction of a wall in the Occupied Palestinian Territory – which had remained a “dead letter” – 170 Palestinian parties, organisations and unions had launched a “Call for Boycott, Divestment and Sanctions against Israel Until it Complies with International Law and Universal Principles of Human Rights”.

45. They stressed that it had been a non-violent international campaign targeting the “Israeli colonial policy of occupation” and its supporters, to draw the attention of ordinary citizens, seen as social and political actors, and of consumers, who were asked to distinguish between products on legitimate and reasonable political grounds. It had been a response to the inertia of the dominant powers in failing to enforce their own resolutions and to Israel’s refusal to abide by international law. They added that this call for a boycott of Israeli products was part of a noble and longstanding tradition of non-violent citizen action for a political goal (they referred in particular to the peaceful movements against apartheid and against discrimination in the United States), and was consistent with the more recent movement of the “consumer-actor” (“ consom-acteur ”) boycott, whose aim had been to encourage everyone to bring their consumption practices into line with their beliefs. Furthermore, in the name of freedom of expression, the BDS campaign enjoyed the majority support of the international community. In this regard, they referred to statements by the relevant United Nations bodies, representatives of the executive or legislature of many European States, the United States of America, the European Parliament, the European Commission, European regions and cities, leading legal academics, political parties, major influential non-governmental organisations and representatives of Palestinian and Israeli civil society.

46. They emphasised that they were ordinary citizen activists with no prerogatives of public authority – unlike the applicant J.-C. Willem (see Willem , cited above) – and that their freedom of expression (as manifested in their call for a boycott) on a highly political issue of general interest had been infringed by their conviction, even though they had called upon consumers and the management of a supermarket, publicly and without violence or any other form of coercion, not to buy products made in Israel and thus to exercise a form of conscientious objection, on account of the governmental policy pursued by that State in flagrant and acknowledged violation of general public international law, international humanitarian law and human rights law. They emphasised that their appeal had been devoid of any racist or antisemitic connotations, and that it was not directed at any identified person or group, but only at products imported from Israel, regardless of the nationality of the suppliers or producers. They inferred that the substance of their expression had been artificially and arbitrarily depoliticised in order to remove it from the protected category of political speech.

47. The applicants then referred to the principles emerging from the Court’s case-law under Article 10: freedom of expression included the freedom to shock, offend or disturb, not extending to hate speech; speech of a political or partisan nature enjoyed enhanced protection, the margin of appreciation of States being narrow in such cases; restrictions on freedom of expression had to be interpreted strictly; the assessment by domestic courts of the individual’s good faith and of the facts had to be acceptable; the interference had to be based on relevant and sufficient reasons and on a compelling social need.

48. They stressed that their call for a boycott amounted to political and partisan expression on a geopolitical issue of major general interest: the resolution of the Israel-Palestine question through the effective application of public international law and the international responsibility of commercial companies in respect of the violation of human rights in the occupied Palestinian territories. In their view this was a case where Article 10 of the Convention required a high degree of protection of freedom of expression and where the State’s margin of appreciation was particularly narrow. More broadly, they emphasised that calls for a boycott of products from Israel did not incite hatred or violence, since they contained no element of defamation or insult, racist or antisemitic statements, encouragement to commit an offence or the glorification of international crimes. Nor did they incite discrimination based on the origin of a person or group or the fact of their belonging to a given ethnicity, race or religion, since those calls were aimed only at products which were not necessarily made by Israeli nationals. They further argued that their case had to be distinguished from that examined by the Court in Willem (cited above). Their status, capacity and position were not the same, as in that case the Court had attached weight to the fact that J.-C. Willem had been acting in his capacity as mayor; his power to influence had been greater than theirs and the Court had found fault with a mayor who, in that capacity, had certain responsibilities vis-à-vis the inhabitants of his municipality, had to maintain a degree of neutrality, had used his powers to order his services not to buy products from a given country and had taken that decision without allowing free debate on the matter.

49. Referring back to their argument under Article 7 of the Convention, the applicants further contended that the penalising of their boycott had no legal basis. Nor did it pursue any of the legitimate aims listed in Article 10 § 2. In this connection they observed that the domestic courts had not specified how their call for a boycott could be prejudicial to the “rights of others” or to “public order” (in other words, as stated in Perinçek v. Switzerland ([GC], no. 27510/08, §§ 146-154, ECHR 2015 (extracts)), how it could have involved a risk of public disorder such as rioting). Lastly, they considered that the sanction was not necessary in a democratic society.

50. On that latter point, the applicants criticised the domestic courts for not having considered the interference in question in the light of the case as a whole, and in particular for not having taken into account the content of the impugned remarks, the context in which they were made or the status of the authors, against whom there was no suspicion of antisemitism. In their view, the reasoning of the domestic decisions had been based on a truncated interpretation of the facts and an excessively broad interpretation of the exceptions to the right to freedom of expression. The domestic court had interpreted their objectives as it saw fit, taking the view that they had been seeking, without distinction, to discriminate against persons of Israeli nationality, by placing a form of collective responsibility on them, whereas their clearly stated, assumed and repeated objective had been to encourage consumers to exercise their freedom of conscience, by distinguishing between consumer products on the basis of political, humanist and legal criteria. The applicants further argued that the domestic courts had not taken into account the type of action underlying the call for a boycott – being non-violent, civic and peaceful – and had not examined the question of the justification for the discrimination, which had a reasonable and objective basis. The courts had neither established the existence of a compelling social need nor justified the conviction on relevant and sufficient grounds. Lastly, they stressed that the quantum of the sentence was high: they had each been given a suspended fine of EUR 1,000 (suspended), and had been ordered to pay each civil party EUR 1,000 in damages and EUR 3,000 in costs, making a total of EUR 14,000 in fines, by way of criminal sentence (suspended), and EUR 33,320 by way of civil awards.

(b) The Government

51. The Government rejected the applicants’ argument. They maintained, first, that the interference at issue had been prescribed by law, namely by sections 23 and 24, eighth paragraph, of the Law of 29 July 1881. Referring to their observations on Article 7 of the Convention, they added that the domestic law as it stood satisfied the criteria of clarity, accessibility and foreseeability. They further pointed to the Court’s previous finding in the cases of Willem (cited above, § 29) and Soulas and Others v. France (no. 15948/03, § 29, 10 July 2008) that a conviction handed down under those provisions constituted an interference prescribed by law within the meaning of Article 10. Referring again to the Willem judgment, they further contended that the interference pursued a legitimate aim: the protection of “the rights of others”, namely the right of Israeli producers and suppliers to access a market. They also argued that it was necessary in a democratic society.

52. On the latter point, the Government submitted that the applicants’ actions were not the manifestation of a political or partisan opinion forming part of a debate in the public interest and therefore enjoying a heightened level of protection, but fell within the category of statements calling for hatred, violence, discrimination or intolerance. They referred to the finding of the Colmar Court of Appeal that “it [could] be seen from the content of the leaflet distributed and from the statements made by the [applicants] that they, through their action, were causing discrimination against products imported from Israel, inciting the customers of the shop in question not to buy those goods on account of the origin of the producers or suppliers”. They further argued that the Court had made such a distinction in the Willem case (cited above, §§ 35 and 38), which had concerned similar circumstances, and that the Perinçek judgment (cited above) was not relevant to the present case, as the applicant D. Perinçek had not been prosecuted for incitement to hatred. They concluded that France should be afforded a wide margin of appreciation in the present case.

53. The Government further stated that, having regard to the form of their action, the remarks they had made and the objectives pursued, the applicants’ conviction had been based on relevant and sufficient reasons. They noted that the applicants had, by their actions, encouraged the rejection of Israeli producers and suppliers and that some of them had made violent remarks, by shouting “Israel is a murderer, [C.] is an accomplice”, statements which were likely to arouse in customers a feeling of hatred against and rejection of the Israeli population in a tense international context. They further drew attention to the wording of the leaflets where it was stated that to buy Israeli products was tantamount to “legitimising the crimes committed in Gaza”, thereby implicitly suggesting, as the advocate-general of the Court of Cassation had noted, that all Israeli producers were criminals. As the advocate-general had also pointed out, the applicants’ discourse had been directed at all Israeli producers rather than specifically at those located in the occupied territories, and their action had had the effect of penalising all Israeli producers and suppliers, irrespective of the geographical origin of their products, in the name of their government’s policy, thereby attributing a form of collective responsibility to them. Referring to the Willem judgment (cited above, § 22), they added that the boycott had no existence or legitimacy under international law.

54. The Government also took the view that the applicants’ conviction had not been disproportionate for a number of reasons. First, as the Colmar Court of Appeal had found, any incitement to discrimination was by nature reprehensible. Secondly, it could be seen from the grounds of the domestic decisions that the conviction had met a compelling social need. Referring to the judgment in Willem (ibid., § 41), they added that the sentence had not been disproportionate as to quantum, the Court of Appeal in its two judgments having sentenced each applicant to a suspended fine, and the five applicants concerned by the events of 26 September 2009 had additionally been ordered jointly to pay EUR 1,000 in damages and EUR 3,000 in costs to each of the civil parties (i.e. EUR 2,800 per applicant), the same awards having been made against the eight applicants concerned by the events of 22 May 2010 for the benefit of the four civil parties (i.e. EUR 2,000 per applicant).

55. The two third-party interveners emphasised that they had both publicly defended the right to participate peacefully in the “call for boycott, divestment and sanctions”, in the name of freedom of expression and freedom of assembly, in particular to protest against the Israeli government’s policies of occupation and discrimination, while refusing to allow antisemitic speech to be uttered under this guise. They considered it essential to protect this peaceful form of political expression. They further observed that the present case was distinct from the above-mentioned Willem case, which concerned a position taken by an elected politician who had engaged the public authorities by his actions, adding that Willem should be re-examined in the light of the above-mentioned Perinçek judgment. They urged the Court to reaffirm strongly that the protection of freedom of expression was the principle under the Convention, while its limitation was only the exception, and to note that, in order to resolve the Convention dilemma where that freedom conflicted with the fight against hate speech, the margin of appreciation of the respondent State should not be overly relied upon.

56. The third-party interveners then asked the Court to draw a clear distinction between, on the one hand, speech advocating or justifying violence, hatred, xenophobia or other forms of intolerance – speech which ought to be strongly opposed – and, on the other, speech and actions which merely sought to denounce a government policy perceived to be contrary to rights and freedoms in the context of a debate of general interest, which deserved to be given strong protection in the name of the fundamental principles of a democratic society. They observed that, in order to distinguish between the two, the Court had focussed in Willem (cited above) on the subject-matter of the impugned remarks, while disregarding their purpose, but that subsequently, in Perinçek (cited above), it had examined whether it was established, having regard in particular to the context in which the remarks had been made, that they had amounted to incitement to hatred or intolerance. They urged the Court to take the latter approach in the present case, and to adopt a presumption of enhanced Convention protection for politically motivated boycotts – such as those of the BDS campaign – which could be rebutted where it was shown that the speech or action in question was tainted by racism or antisemitism. In short, the third-party interveners invited the Court to go beyond the eminently simplistic finding that the call for a boycott was unlawful solely on the ground that it entailed a difference in treatment on the basis of nationality, and to focus on the political purpose of the speech, which would thus enjoy strong treaty protection.

57. Lastly, the third-party interveners called on the Court to affirm that political or partisan speech – however sharp in tone – deserved special protection under Article 10 as long as it was part of a peaceful action and was primarily targeted at government policy. They contended that it was important to explicitly recognise the Convention right to peaceful criticism of government policy, even through calls for boycotts of certain products as a means of economic pressure. In their view, the present case was crucial, as the position taken by the Court would have a resounding impact.

58. It is not in dispute between the parties that the applicants’ criminal conviction and sentence constituted an interference with their right to freedom of expression. Such interference will be in breach of Article 10 unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in the second paragraph of that Article and was “necessary in a democratic society” in order to fulfil such aim or aims.

(a) Prescribed by law

(b) Legitimate aim

60. It can be seen from the reasoning of the Colmar Court of Appeal in its judgments of 27 November 2013 that the applicants were convicted for inciting discrimination against the producers or suppliers of products imported from Israel (see paragraph 13 above). Their conviction thus had the purpose of protecting the commercial rights of those actors. The Court acknowledges that, as argued by the Government in referring to the rights of the producers and suppliers to access a market, the aim of the impugned interference was to protect the “rights of others” within the meaning of the second paragraph of Article 10.

(c) Necessary in a democratic society

(i) General principles

61. The general principles concerning the question whether an interference with the right to freedom of expression is “necessary in a democratic society” are well established in the Court’s case-law. They were summed up as follows in the Perinçek judgment (cited above, § 196):

“(i) Freedom of expression is one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10 § 2, it applies not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, but these must be construed strictly, and the need for any restrictions must be established convincingly.

(ii) The adjective ‘necessary’ in Article 10 § 2 implies the existence of a pressing social need. The High Contracting Parties have a margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the law and the decisions that apply it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ can be reconciled with freedom of expression.

(iii) The Court’s task is not to take the place of the competent national authorities but to review the decisions that they made under Article 10. This does not mean that the Court’s supervision is limited to ascertaining whether these authorities exercised their discretion reasonably, carefully and in good faith. The Court must rather examine the interference in the light of the case as a whole and determine whether it was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities to justify it were relevant and sufficient. In doing so, the Court has to satisfy itself that these authorities applied standards which were in conformity with the principles embodied in Article 10 and relied on an acceptable assessment of the relevant facts.”

62. Moreover, Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see, for example, Lehideux and Isorni v. France , 23 September 1998, § 52, Reports of Judgments and Decisions 1998 ‑ VII; Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 53, ECHR 2011; Gillberg v. Sweden [GC], no. 41723/06, § 82, 3 April 2012; and Bédat v. Switzerland [GC], no. 56925/08, § 58, 29 March 2016, and the references indicated therein).

(ii) Considerations on boycotts

64. A call for a boycott is, however, a particular form of the exercise of freedom of expression in that it combines the expression of protest opinion with differential treatment such that, depending on the circumstances which characterise the boycott, it may constitute a call to discriminate against others. While a call to discriminate is on a par with a call for intolerance which, together with a call for violence or hatred, is one of the boundaries that must never be crossed in exercising freedom of expression (see, for example, Perinçek , cited above, § 240), merely inciting a difference in treatment does not necessarily amount to inciting discrimination.

(iii) The Willem v. France judgment

65. The Court shares the view of the applicants and third-party interveners that the present case must be distinguished from that of Willem (cited above).

66. That case was about a mayor who, in 2002, during a meeting of the town council at which journalists were present, and later on via the town’s website, announced that he had asked the municipal catering service to boycott Israeli food products to protest against anti-Palestinian policies of the Israeli Prime Minister. The applicant was convicted of inciting discrimination under sections 23 and 24 of the Law of 29 July 1881 and sentenced to a suspended fine of EUR 1,000.

67. The applicant, J. ‑ C. Willem, complained of a violation of Article 10. In examining the necessity of the interference, the Court emphasised the particular importance of freedom of expression for elected representatives of the people. It concluded that particular scrutiny had to be applied in such cases, adding that political speech could not be restricted without compelling reasons (ibid., §§ 32 ‑ 33).

68. The Court took the view, however, that having regard to the domestic decisions, the applicant had not been convicted because of his political opinions, but rather for inciting an act of discrimination, also noting that he had not merely denounced the policy of the Israeli Prime Minister but had gone further by announcing a boycott of Israeli food products. The Court further noted as follows:

“In his capacity as mayor the applicant had duties and responsibilities. He [was] obliged in particular to maintain a degree of neutrality and [had] a duty of discretion when committing the local community, which he represented in its entirety, to a course of action. In that connection, a mayor handles the public funds of the municipality and must not encourage it to spend them on a discriminatory basis.”

The Court further stated that, while it appreciated that the applicant’s intention had been to denounce the Israeli Prime Minister’s policy, it considered that the reasons for the boycott which had been given at the meeting of the town council and on its website “amounted to a discriminatory and therefore reprehensible proposition”. Going beyond his political opinions, for which he had not been prosecuted or convicted, the applicant had:

“called on the municipal services to commit a positive act of discrimination, [by an] express and partisan refusal to engage in commercial relations with producers who were Israeli nationals. In so doing, by means of a statement at a municipal council meeting, with no debate or vote on the matter, and on the town’s website, the applicant [could] not claim to have been encouraging free discussion on a subject of general interest.”

It also noted the prosecutor’s submission to the domestic court that the mayor was not entitled to take the place of the governmental authorities by declaring an embargo on products imported from a foreign country. In addition, the fine imposed on the applicant had been “relatively moderate” and the Court concluded that there had been no violation of Article 10 in that case (ibid . , §§ 34 ‑ 42).

69. The Court’s conclusion in that case was largely based on the following factors: the fact that in announcing his decision to ask the municipal catering services to boycott Israeli products J. ‑ C. Willem had been acting in his capacity as mayor and had exercised the powers of that office in disregard of his corresponding duty of neutrality and discretion; and the fact that he had done so at a municipal council meeting without calling for a debate or vote on the matter and could not therefore claim to have been encouraging free discussion on a subject of general interest.

(iv) The present case

70. In contrast to the circumstances of the Willem case (cited above), firstly, the present applicants are ordinary citizens who are not subject to the duties and responsibilities attached to the office of mayor and whose influence on consumers is not comparable to that of a mayor vis-à-vis the services of his or her municipality. Secondly, it was clearly in order to provoke or stimulate debate among supermarket customers that the applicants engaged in the boycott campaign which led to the proceedings of which they have complained before the Court. It cannot therefore be accepted that the conclusion reached by the Court in Willem is applicable in the present case.

71. The Court further observes that the applicants were not convicted for making racist or antisemitic statements or for inciting hatred or violence. Nor were they convicted for behaving violently or for causing damage during the events of 26 September 2009 and 22 May 2010. It is also very clear from the record that there was no violence or damage. Moreover, the hypermarket in which the applicants carried out their actions did not seek to join the domestic proceedings as a civil party.

72. As stated above, the applicants were convicted on account of their call for a boycott of products imported from Israel, for having “incited discrimination” within the meaning of section 24, eighth paragraph, of the Freedom of the Press Act (Law of 29 July 1881).

73. In convicting the applicants, the Colmar Court of Appeal (see paragraph 13 above) found that by calling on the hypermarket’s customers not to buy products from Israel, the applicants had incited them to discriminate against the producers or suppliers of those products on account of their origin. It emphasised that incitement to discrimination did not fall within the scope of the right to freedom of opinion and expression since it constituted a positive act of rejection against a category of persons, as shown by the incitement to apply a difference in treatment. In that court’s view, the fact that the defendants had incited others to discriminate between producers or suppliers in order to reject those from Israel was sufficient to constitute the material element of the offence of incitement to discrimination, hatred or violence provided for in section 24 of the Freedom of the Press Act (Law of 29 July 1881), eighth paragraph. Responding to a ground of appeal based on Article 122-4 of the Criminal Code (see paragraph 19 above), it added that freedom of expression did not authorise the holder of that right, under cover of such freedom, to commit an offence punishable by law.

74. The Court will not call into question the interpretation of section 24 of the Law of 29 July 1881 on which the applicants’ conviction was based, according to which they had, within the meaning of that provision, caused discrimination on grounds of origin against the producers or suppliers of products from Israel by calling for a boycott of those products. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. The Court’s role is limited to verifying whether the interference which resulted from the applicants’ conviction for that offence can be regarded as “necessary in a democratic society” (see, for example, Lehideux and Isorni , cited above, § 50), that is to say, in particular, whether the reasons given to justify it are relevant and sufficient (see paragraph 61 above).

75. The Court would note, however, that, as interpreted and applied in the present case, French law prohibits any call for a boycott of products on account of their geographical origin, regardless of the substance, grounds or circumstances of such an initiative.

76. It further finds that, ruling on that legal basis, the Colmar Court of Appeal did not analyse the acts and statements in question in the light of those factors. It concluded generally that the call for a boycott constituted incitement to discrimination within the meaning of section 24, eighth paragraph, of the Law of 29 July 1881, on the basis of which the applicants had been prosecuted, and that the action “could not fall within the right to freedom of expression”.

77. In other words, the domestic court did not establish that, in the circumstances of the case, the applicants’ conviction on account of their call for a boycott of products from Israel was necessary, in a democratic society, to achieve the legitimate aim pursued, namely the protection of the rights of others, within the meaning of the second paragraph of Article 10.

78. The need for detailed reasoning was, however, all the more essential in the present case because it involved a situation in which Article 10 of the Convention required a high level of protection of the right to freedom of expression. On the one hand, the actions and remarks complained of concerned a subject of general interest, namely the State of Israel’s compliance with public international law and the human rights situation in the occupied Palestinian territories, and were part of a contemporary debate which was ongoing in France and throughout the international community. On the other hand, these actions and statements were a form of political and “militant” expression (see, for example, Mamère v. France , no. 12697/03, § 20, ECHR 2006-XIII). The Court has repeatedly emphasised that there is little scope under Article 10 § 2 of the Convention for restrictions on political expression or on debate on questions of public interest (see Perinçek , cited above, § 197, and the references therein).

79. As the Court pointed out in Perinçek (ibid., § 231), it is in the nature of political speech to be controversial and often virulent That does not diminish its public interest, provided of course that it does not cross the line and turn into a call for violence, hatred or intolerance. That is also true of a call for a boycott, as observed by the Special Rapporteur on freedom of religion or belief in his report to the members of the United Nations General Assembly dated 20 September 2019 (paragraph 21 above), and by the Fédération internationale des ligues des droits de l’homme together with the Ligue des droits de l’homme in the observations they submitted as third-party interveners in the present case (see paragraph 55 above).

80. The Court concludes that the applicants’ conviction was not based on relevant and sufficient reasons. It is not persuaded that the domestic court applied rules which adhered to the principles enshrined in Article 10 or that it based its decision on an acceptable assessment of the facts.

81. Accordingly, there has been a violation of Article 10 of the Convention.

82. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

83. As regards pecuniary damage, the applicants sought the reimbursement of the court fees that they had been charged pursuant to Article 1018 A of the General Tax Code (they each produced a pre-prosecution notice to pay issued by the Ministry of Finance and Public Accounts, dated March 2016, for an amount of 380 euros (EUR)), and of the amount in damages that they had been ordered to pay. That amount was made up as follows: EUR 1,713 for Ms L. Assakali, Ms H. El Jarroudi and Ms S. Mure, and Messrs Y. Assakali, J.-M. Baldassi and M. Roll; EUR 3,580 for Ms A. Parmentier, Mr J. Ballouey and Mr H. Eichholtzer; EUR 5,293 for Ms F. Sarr-Trichine and Mr N. Akbar. They also claimed EUR 15,000 each for non-pecuniary damage.

84. As regards the claim of pecuniary damage, the Government observed that the applicants N. Akbar, J. Ballouey, H. Eichholtzer, A. Parmentier and F. Sarr-Trichine had been ordered, in respect of the events of 26 September 2009, to pay jointly to each of the four civil parties EUR 1,000 in damages (EUR 4,000 in total) and EUR 3,000 in costs and expenses (EUR 12,000 in total), thus corresponding to EUR 3,200 for each applicant. They further noted that the applicants N. Akbar, L. Assakali and Y. Assakali, M. Roll, J.-M. Baldassi, H. El Jarroudi, S. Mure and F. Sarr-Trichine had been ordered, in respect of the events of 22 May 2010, to pay jointly to each of the three civil parties, EUR 1,000 in damages (EUR 3,000 in total) and EUR 3,000 in court costs (EUR 9,000 in total), corresponding to EUR 1,333 per applicant. They further noted that each of the applicants had been ordered to pay EUR 380 in respect of court fees: EUR 169 for the decision of the Court of Appeal; EUR 211 for the decision of the Court of Cassation. They observed, however, that the applicants had not provided any document attesting to the payment of the sums awarded to the civil parties or the court fees. In their view, absent any proof of payment, no amount could be awarded to the applicants in respect of pecuniary damage. Moreover, in the event that non-pecuniary damage could be shown, the finding of a violation would provide sufficient redress; in the alternative, if the Court were to find that the finding of a violation was not sufficient, the award for non-pecuniary damage should not exceed EUR 200.

85. The Court finds that there is a causal link between the violation of Article 10 of the Convention, which it has found above, and the sums that the applicants were ordered to pay by way of damages and of court fees under Article 1018 A of the General Tax Code (see, for example, Haguenauer v. France , no. 34050/05, §§ 57-59, 22 April 2010). Noting that they have not proved that they have paid the amount in damages, it rejects their claim in that respect (see, for example, Reichman v. France , no. 50147/11, § 79, 12 July 2016; compare Lacroix v. France , no. 41519/12, § 57, 7 September 2017). However, in view of the pre-prosecution payment notice issued by the Ministry of Finance and Public Accounts, dated March 2016, for an amount of 380 euros in court fees, as produced by each of the applicants, it sees no reason to doubt that they have paid this sum. It accordingly awards EUR 380 to each applicant in respect of pecuniary damage.

86. The Court also finds it fair to award EUR 7,000 to each applicant in respect of non-pecuniary damage.

87. The applicants sought the reimbursement of their costs and expenses for the domestic proceedings and for those before the Court. They stated that they had paid, jointly, EUR 21,595.15 in the course of the domestic proceedings: EUR 5,548.65 for the proceedings in the Mulhouse tribunal de grande instance ; EUR 8,486.50 in the Colmar Court of Appeal; EUR 7,560 in the Court of Cassation. For the proceedings before the Court, the applicants J.-M. Baldassi, H. Eichholtzer, A. Parmentier, S. Mure, N. Akbar and M. Roll stated that they had, together, paid EUR 36,000 in fees to their lawyer, Mr A. Comte, and the applicants L. Assakali and Y. Assakali, J. Ballouey, H. El Jarroudi and F. Sarr-Trichine, EUR 8,100 to their lawyer, Mr G. Thuan Dit Dieudonné.

88. The Government regarded the applicants’ claims as excessive. They did not think they should have to bear the cost resulting from the applicants’ choice to engage two lawyers in the domestic proceedings. They further noted that the applicants had pooled their costs for representation before the Court as they had done before the domestic courts.

89. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and its case-law, the Court considers it reasonable to award the sum of EUR 20 000 for the proceedings before the domestic courts and before this Court, covering costs under all heads. It thus awards the applicants EUR 20,000 jointly in respect of costs and expenses.

90. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) to each applicant EUR 380 (three hundred and eighty euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) to each applicant, EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) to all the applicants jointly, EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in French, and notified in writing on 11 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Victor Soloveytchik Síofra O’Leary Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge O’Leary is annexed to this judgment.

V.S. S.O’L.

PARTLY DISSENTING, PARTLY CONCURRING OPINION OF JUDGE O’LEARY

1. The present case stemmed from the criminal conviction of members of a group linked to an international movement known as BDS (Boycott, Divestment and Sanctions) following protests in a French supermarket in September 2009 and May 2010.

2. I support the unanimous decision of the Chamber to find a violation of Article 10 of the Convention. There can be no question but that French law, as interpreted and applied by the domestic courts, violates the right to freedom of expression protected under the Convention.

3. I am, regretfully, unable to join my colleagues in finding no violation of Article 7 of the Convention. The applicants raised serious questions before this Court and at domestic level in relation to the foreseeability, within the meaning of the Court’s case-law, of the French regulatory framework as interpreted and applied to the protesters. Those questions could have been addressed either pursuant to Article 7 or pursuant to the “prescribed by law” requirement under Article 10 § 2 of the Convention.

4. Whichever route was chosen, it was not sufficient for the Chamber to rely on the previous judgment of the Court in Willem v. France (no. 10883/05, 16 July 2009) and, in particular, on the Court of Appeal and Court of Cassation judgments which preceded that 2009 Strasbourg judgment.

5. Since the Court of Cassation in its 2015 judgment relating to the applicants simply did not engage with the essence of their Article 7 complaint, it seems to me that both the highest French criminal court and the Strasbourg Court have persistently failed to address the question of the foreseeability of French law in relation to boycotts in recent years.

6. On 9 July 2004, the International Court of Justice handed down its Advisory Opinion on the legal consequences of the construction of a wall in the occupied Palestinian territory (I.C.J. Reports 2004, p. 136).

7. The BDS movement, to which further reference will be made briefly below in relation to the Article 10 complaint, emerged one year later.

8. During the 2009 and 2010 supermarket protests, the applicants wore “Palestine Vivra” t-shirts, displayed avocados and baby wipes imported from Israel in trolleys, distributed pamphlets, encouraged customers to boycott products from Israel, in particular from the occupied territories, and asked customers to sign a petition addressed to the supermarket management. Videos of the protest were posted online. The political purpose of the protests, as stated in the judgments of the French courts, was to encourage a consumer boycott in order to put pressure on Israel to respect its obligations under international law.

9. It is uncontested that some protesters shouted “Israel assassin, Carrefour complicit”. Before the first-instance court it was established that the majority of those present distanced themselves from this slogan, indicating that they considered the terms used to be excessive and not in line with the protest in which they had undertaken to participate.

10. The applicants, all but one of whom had participated in the September 2009 protest, were summoned by the Colmar prosecutor to appear before the Mulhouse Criminal Court almost one year later on the basis of section 24, eighth paragraph, of the Law of 1881 on freedom of the press. No reference was made in the indictment to Article 225-2 of the French Criminal Code, which expressly sanctions economic discrimination. The first-instance Criminal Court examined the facts of the case and concluded in a judgment of 15 December 2011 that the constituent elements of the offence under the 1881 Law were not made out and that the legal basis for the indictment was inadequate. The actions of the protesters were indicative of possible economic discrimination directed at certain products which was not covered by section 24, eighth paragraph, of the 1881 Law or the indictment. The applicants, and a further May 2010 protester, were acquitted.

11. In November 2013, following an appeal by the prosecutor, the Court of Appeal of Colmar overturned the first-instance decision. According to that court, the simple fact that the applicants had incited third parties to proceed to discriminate between producers and suppliers in order to reject those from Israel was sufficient to characterise the material element of the criminal offence with which they had been charged under the impugned provision of the 1881 Law.

12. In its judgment of 20 October 2015, in a single, short paragraph, the Court of Cassation confirmed the decision of the appeal court (Cass. Crim., 20 October 2015, no. 14-80020). It held that the latter was sufficiently reasoned and without contradiction in that it had held correctly that the constituent elements of the offence proscribed by section 24, eighth paragraph, of the 1881 Law were present and that the exercise of the right to freedom of expression provided for by Article 10 of the Convention could be restricted by measures necessary, as in this case, in a democratic society.

13. Article 7 of the Convention, which embodies the principle that only the law can define an offence and prescribe a penalty ( nullum crimen, nulla poena sine lege ), requires that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy (see Del Río Prada v. Spain [GC], no. 42750/09, § 78, ECHR 2013, and Vasiliauskas v. Lithuania [GC], no. 35343/05, § 153, ECHR 2015). The guarantee enshrined in Article 7 is to be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see Del Río Prada , cited above, § 77).

14. In Article 10 § 2 of the Convention, the requirement that an interference with the rights guaranteed therein must be “prescribed by law” is one of the conditions that must be fulfilled in order for such an interference to be justified. This lawfulness requirement in Articles 8-11 of the Convention also serves to afford a measure of protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention (see, for instance, Roman Zakharov v. Russia [GC], no. 47143/06, §§ 228-29, ECHR 2015, in respect of Article 8; Leyla Şahin v. Turkey [GC], no. 44774/98, §§ 88-91, ECHR 2005 XI, in respect of Article 9; Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 143, ECHR 2012, in respect of Article 10; and Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, §§ 114-15, 15 November 2018, in respect of Article 11).

15. According to the Court’s established case-law, the concept of “law” in Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term; a concept which comprises statutory law as well as case-law and implies qualitative requirements, including those of accessibility and foreseeability (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96 and 2 others, § 82, ECHR 2001-II; Vasiliauskas , cited above, § 154; and Kudrevičius and Others , cited above, § 193).

16. Offences and the relevant penalties must be clearly defined by law, a requirement which is satisfied where the individual can know from the wording of the provision, if need be with the assistance of the court’s interpretation of it and after taking appropriate legal advice, what acts and omissions will make him or her criminally liable (see Del Río Prada , cited above, § 79, in relation to Article 7, or Kudrevičius and Others , cited above, § 109, and Navalnyy , cited above § 114 in relation to Article 11). The Court accepts that the wording of statutes is not always precise, given that laws must be of general application and that there will always be a need for courts to elucidate doubtful points and adapt to changing circumstances. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as may remain (see Del Río Prada , cited above, § 93, and Kudrevičius and Others , cited above, § 110).

17. Both in the context of Article 7 and in the context of Article 10 § 2, the level of precision required of domestic legislation will depend to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see, in respect of Article 7, Vasiliauskas , cited above, § 157, and in respect of Article 10 § 2, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 144, 27 June 2017).

18. However, given that a criminal charge or conviction is at issue, Article 7 § 1 requires the Court to examine whether there was a contemporaneous legal basis for an applicant’s conviction and it must satisfy itself that the result reached by the domestic courts was compatible with that Article (see, for instance, Kononov , cited above, §§ 197-98, and Rohlena v. the Czech Republic [GC], no. 59552/08, §§ 51-52, ECHR 2015). Furthermore, regarding the role of judicial interpretation, the Court’s case-law appears more specific in respect of Article 7 than it is in respect of Articles 8-11. Although Article 7 does not exclude the gradual clarification of the rules of criminal liability through interpretation from case to case, the resulting development must be consistent with the essence of the offence and must be reasonably foreseeable (see Kononov , cited above, § 185, and Del Río Prada , cited above, § 93). While this requirement can be fulfilled even where the domestic courts interpret and apply a provision for the first time (see, as an example under Article 10, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], cited above, § 150), judicial interpretation must generally follow a perceptible line of case-law consistent with the essence of the offence.

19. Before examining how these general principles should have applied in the circumstances of the present case, it is interesting to note as a preliminary aside that the nature and effect of the 2015 decision of the Criminal Division of the Court of Cassation was reported in the following terms in Le Monde :

“ No further doubt is possible : the simple fact of calling for a boycott of Israeli goods is totally illegal in France . And it is severely punished. Two judgments of the Court of Cassation ... render France one of the few countries in the world, and the sole democracy, where a call to boycott by an organisation or citizen for criticising the policies of a third country is prohibited”. [1]

20. In dismissing the applicants’ complaint under Article 7, the Chamber judgment relies solely on the Court of Cassation judgment of September 2004 which led to the Willem case and on that court’s interpretation of section 24, eighth paragraph, of the 1881 Law on the freedom of the press (see paragraph 39 of the Chamber judgment). Willem is, as the Chamber judgment correctly emphasises in its analysis under Article 10, a particular and different case. The mayor of a French municipality had been convicted under the latter provision of the 1881 Law for having directed municipal catering services not to buy Israeli products. His conviction at domestic level and the Court’s decision to find no violation of Article 10 in his case was based on the fact that the applicant had called on those municipal services, for which he was responsible in his capacity as a public official, to engage in a positive act of discrimination (see Willem , cited above, § 38 and the distinguishing of Willem in § 68 of the Chamber judgment).

21. The reliance in this judgment, without more, on the Willem judgment and on the two domestic court decisions which preceded it, is thus problematic for a number of reasons.

22. Firstly, it is uncontested that section 24 of the 1881 Law did not contain an express reference to economic discrimination. Such an express reference is and was to be found instead in Article 225-2 of the Criminal Code. Cross-reference is made to the latter provision in section 24, ninth paragraph, of the 1881 Law, whose scope is limited, but not in the eighth paragraph. The latter provision was adopted in 1972 as a means of combatting racial discrimination. The respondent Government suggest that economic discrimination can and should be read into the provisions of section 24, eighth paragraph, of the 1881 Law for the following reason: during the parliamentary debates which preceded its adoption, reference had been made to the International Convention on the Elimination of All Forms of Racial Discrimination which, in Article 1, defines racial discrimination and refers to “the political, economic , social, cultural and any other field of public life”. This is an inventive and unorthodox way to interpret provisions of a criminal statute but it is hardly one that meets the standards of the Court’s case-law as outlined above. In essence, the latter provides that criminal law provisions should be accessible, foreseeable and must not be extensively construed to an accused’s detriment.

23. Secondly, the question whether the provision relied on in Willem (reliance now endorsed in Baldassi ) complied with the lawfulness requirement under Article 10 § 2 of the Convention had already been raised at domestic and Strasbourg level. In Willem the Court simply accepted that the criminal conviction of the applicant in that case had a legal basis. It added that, in the view of the Court of Appeal of Douai, sections 23 and 24, eighth paragraph, of the 1881 Law referred, at the time, to Articles 225-1 and 225-2 of the Criminal Code (see Willem , cited above, § 29). This was not and is not correct. As such, a problematic lawfulness question remained unanswered or was erroneously answered in Willem . This non-answer in a case which concerned very distinct facts and an earlier version of the 1881 Law has now been transposed without more to the actions of the protesters in Baldassi .

24. Thirdly, leaving aside the distinctions between this case and Willem , was it really foreseeable for the applicants that their participation in supermarket protests in September 2009 and May 2010 would lead to criminal charges and a conviction on the basis of section 24, eighth paragraph, of the 1881 Law? According to the Court’s case-law, foreseeability must be appraised from the perspective of the convicted person at the time of the commission of the offence charged (see Rohlena v. the Czech Republic [GC], cited above, § 56; Streletz, Kessler and Krenz v. Germany [GC], cited above, § 51; Veeber v. Estonia (No. 2) , no. 45771/99, § 33, 21 January 2003; and Korbely v. Hungary [GC], no. 9174/02, § 73, 19 September 2008). In my view the Chamber, to the extent that it even tried to answer this question, did so by placing itself in 2015 following the judgment of the Court of Cassation, and not in 2009, when the first set of protesters packed up their pamphlets and headed for Carrefour.

25. Two points are noteworthy in this regard.

26. On the one hand, the circular to which reference is made in paragraph 20 of the Chamber judgment (known as the “Alliot-Marie circular”) was issued to Court of Appeal prosecutors on the instructions of the then Minister of Justice on 12 February 2010. It thus followed several months after the first and largest Carrefour protest involving the applicants in September 2009. That circular did point to the fact that in 2009 various criminal proceedings had been instituted on the basis of section 24, eighth paragraph, of the 1881 Law against protesters involved in similar protests. However, it was clear that the outcome of those proceedings was far from uniform. Reference was made to just one judgment, handed down two days previously by the first-instance Criminal Court of Bordeaux, in which supermarket protesters had been convicted. Prosecutors were called upon to ensure a coherent and firm response to such protests and were requested to notify the authorities of any decisions not to take action and the reasons behind them.

27. On the other hand, an overview of first-instance and appeal court decisions in relation to similar protests at the material time and for several years thereafter demonstrate that the position in French law was far from clear. The first-instance Bordeaux court judgment, just mentioned, was upheld by the Court of Appeal and the Court of Cassation only in October 2010 and May 2012 respectively. Meanwhile, on 8 July 2011 the Paris Criminal Court acquitted a protester who had posted a video on line of an identical supermarket boycott ( tribunal de grande instance of Paris , 8 July 2011), finding as follows as regards section 24, eighth paragraph, of the 1881 Law:

“[this provision] cannot, with the degree of foreseeability required by Constitutional and Convention norms, be relied upon to prohibit, as such, an appeal calling for a form of conscientious objection that each person is free to express or not, without there being any constraint that might impede the freedom of consumers, emanating from NGOs with no public powers”.

28. This judgment was upheld by the Court of Appeal of Paris in a judgment of 24 May 2012, which regarded the actions at issue as a “passive criticism of State policy which belongs to free political debate” (“ critique passive de la politique d’un État relevant du libre jeu du débat politique ”). This judgment was left untouched on the merits by the Court of Cassation in a judgment of 19 November 2013 in which it rejected an appeal by the civil parties on procedural grounds (Cass. Crim., 19 November 2013, no. 12-08483).

29. In November 2011 the Court of Cassation had also confirmed (Cass. Crim., 8 November 2011, no. 09-88007) the following reasoning of the Paris Court of Appeal in relation to section 24, eighth paragraph, of the 1881 Law when judging a publication in which the author had engaged in a pejorative characterisation of the Tutsi community in Rwanda:

“the offence is made out only where there is proof of the existence of incitement to discrimination ... against the person or group in question; it does not suffice in this connection to find that the impugned [remarks] have aroused negative feelings [on the part of others] vis-à-vis a community or have caused offence, even for good reason, to individuals belonging to the group concerned, for [the accused] must be shown to have wilfully incited, provoked, or encouraged ... actual [discriminatory] conduct that is prohibited by law.” [2]

30. I am not suggesting that the fact that some proceedings based on section 24, eighth paragraph, of the 1881 Law were discontinued, or that some protesters were acquitted while others were not, is in itself proof of a lack of foreseeability within the meaning of Articles 7 or 10 § 2 of the Convention. The Court has clearly stated that the mere fact that other individuals were not prosecuted or convicted cannot absolve an applicant from criminal liability or render his conviction unforeseeable for the purposes of Article 7 (see Khodorkovskiy and Lebedev v. Russia , no. 11082/06 and 13772/05, §§ 816-20, 25 July 2013). However, neither in the judgments of the Courts of Appeal or Cassation nor in the submissions of the respondent Government in this case does one find evidence of a perceptible line of case-law at the material time supporting the charging and conviction of civilian, non-violent protesters on the basis of section 24, eighth paragraph, of the 1881 Law (see furthermore Pessino v. France , no. 40403/02, §§ 34-36, 10 October 2006, on questions of accessibility and foreseeability). Indeed, at the material time, before the intervention of the Alliot-Marie circular, the “perceptible line of case-law” appears to have been that of the first-instance courts, which had found that the constituent elements of the offence as charged were not made out and indictments on that basis were inadequate. The finding of the Court of Cassation in 2015 may finally have introduced clarity as to the result where it had previously been lacking (although the absence of any reasoning on the Article 7 question was at the very least unhelpful). However, the foreseeability of the impugned provision has, as previously explained, to be assessed as at the time when the offences with which the applicants were charged were committed in September 2009 and May 2010.

31. It is striking that the respondent Government, relying on the opinion of the Advocate General before the Court of Cassation, characterised the actions and objectives of the protesters in the following terms:

“[T]he aim of the applicants’ action was to hinder the economic activity of the producers and distributors, as a decline in the purchase of their wares would have the effect of driving shops to cease doing business with them, thus rendering their economic activity more difficult. In that way the applicants were seeking, in support of their cause, to create economic consequences that were sufficiently serious for the State of Israel to be forced to react.”

32. An express provision of the French Criminal Code provided for the possibility of imposing criminal sanctions for economic discrimination against natural or legal persons if the constituent elements of such a crime were made out, namely Article 225-2. At the material time no such provision was made in section 24, eighth paragraph, of the 1881 Law (see also the dissenting opinion of Judge Jungwiert in Willem , cited above).

33. Finally, whether one agrees or disagrees with the Court’s reasoning in Willem (see further below in relation to Article 10), the status of that applicant and the impact of his actions were different from those of the supermarket protesters, who had no authority over the customers they engaged with and no possibility of determining how those customers disposed of their household budget. As also indicated previously, the status of an applicant is a key criterion when assessing the foreseeability of a law. In a different French case relating to the 1881 Law, Lindon, Otchakovsky-Laurens and July v. France ([GC] , nos. 21279/02 and 36448/02, §§ 41-43, 22 October 2007), having noted that the relevant case-law on the disputed point was “dated and rather scant”, the Court emphasised the professional status of the applicants in question and the resulting obligation on them to apprise themselves of the relevant legal provisions and case-law in such matters, concluding in those circumstances that there had been no violation. Even if the applicants in the present case had taken specialised legal advice, it is difficult to see how the subsequent judicial interpretation and enlargement of the scope of the impugned provision of the 1881 Law to cover economic discrimination by civilian protesters could have been foreseeable to them or their lawyers at the material time.

34. It is for the above reasons – compounded by the absence of any engagement with the applicants’ Article 7 complaint by the Court of Cassation – that I find myself unable to vote in favour of no violation of that Article of the Convention in the present case.

35. The Chamber has found, unanimously, a violation of Article 10 of the Convention in the circumstances of the present case.

36. The legal question under Article 10 could have been approached in three different ways – as a classic Article 10 case (a), as a case specifically about boycotts (whether they constitute an expressive activity and, if so, their nature) (b), or as a case about BDS boycotts in particular (c). The difficulty which some may find with the judgment is that it tries to do a little of all three things while failing to engage fully with any. As such, it may be useful to elaborate on each one, albeit briefly.

37. As regards (a), as interpreted and applied by the French courts, French law prohibits in an absolute and general manner all boycotts of products based on their geographical origin. Of and in itself, this restriction of the right to freedom of expression of protesters who call for a boycott, and indeed of consumers who follow such a call, is in violation of Article 10 of the Convention. Such a generalised prohibition does not allow for the necessary analysis of the circumstances of a given case and does not leave space for the identification and balancing of the different rights and interests in play. Nor does it, crucially, allow distinctions to be made between what the Paris Court of Appeal (see above) has referred to as “passive criticism of State policy which belongs to free political debate” and quite different, sinister and disguised calls to hatred, intolerance and antisemitism, none of which are tolerated under the Convention.

38. As we see from the judgment of the Court of Appeal of Colmar, in recent years the practice of French courts has been to find that the simple fact of encouraging consumers not to buy goods of a particular origin constitutes an incitement to discriminate punished by law. Reliance, by those charged, on the fact that they were expressing a political opinion to justify their actions has therefore had no effect since freedom of expression has been rejected as a defence to an offence punishable under French law. In essence this means that a call for a boycott such as that in Carrefour in 2009 and 2010 is prohibited in principle and the application of Article 10 is excluded. Legal reasoning such as that of the Colmar Court of Appeal excludes the application of the Convention in a manner equivalent to Article 17. However that provision, which applies exceptionally, concerns a particular type of abusive behaviour; so abusive that it negates the application of the Convention. While the Court of Cassation adjusted this line of reasoning by basing its finding on Article 10 § 2 and declaring the impugned restriction of the right to freedom of expression as being necessary in a democratic society, it did not criticise the reasoning of the lower court but ostensibly endorsed it (see paragraph 17 of the Chamber judgment: “the Court of Appeal ... had rightly noted, ...”). In such circumstances, it is not sufficient to conclude that there has been a violation of Article 10 of the Convention merely because the conviction of these particular applicants was not based on relevant and sufficient reasons. The violation stems more broadly from the French legal approach to boycotts of this nature, as follows from a careful reading of paragraph 75 of the judgment.

39. As regards (b), a boycott is characterised in paragraph 64 of the Chamber judgment as being:

“a particular form of the exercise of the freedom of expression in that it combines the expression of protest opinion with differential treatment such that, depending on the circumstances which characterise the boycott, it may constitute a call to discriminate against others.”

40. Thereafter, calls to violence, hatred or intolerance are referenced (citing Perinçek v. Switzerland [GC] , no. 27510/08, § 240, 15 October 2015), discrimination being included as a form of intolerance. The general reference to “differential treatment” in paragraph 64 could be misunderstood or misused, however, as references to differential treatment can quickly become references to discriminatory treatment, without any consideration of the significant legal differences between the two. The judgment in Willem provides a good example of this. Since in essence the Chamber judgment concludes that the French legal approach to boycotts is out of step with the requirements of Article 10 of the Convention, I have difficulty understanding why it is the French legal characterisation of boycotts which one sees imprinted in the Article 10 analysis in paragraph 64 of the judgment. The definition provided gives little if any guidance as to the compatibility of boycotts as a form of expression with the Convention. It contrasts with the approach of domestic courts, such as the German Federal Constitutional Court, which have long since regarded the right to call for a boycott as clearly following from the fundamental right to freedom of speech which “is not just a right to express one’s personal opinion without interference (a ‘negative’ freedom), but a political right to aim to affect and shape public opinion as a totality (a ‘positive’ freedom), which outweighs private rights when the expression is not aimed at private but at public purposes” (see Lüth , 1 BvR 400/51, 15 January 1958, discussed in M. Bot, “The right to boycott: BDS, law and politics in a global context” (2019), Transnational Legal Theory, vol. 10, issue 3-4, emphasis added).

41. Finally, as regards point (c), when seised of a case of this nature, the Court must seek to provide an interpretation of Article 10 of the Convention which is in conformity with its long-established case-law, while remaining aware that some parties may wish to implicate it in the political fray which forms the background to a given case. In this latter regard it cannot afford to be naïve. The Chamber has rightly sought to follow a judicious line. Referring to paragraph 18 of the 2019 report of the United Nations Special Rapporteur, in which the latter addresses the BDS movement (see the report referenced in paragraph 21 of the judgment), the Chamber confirms that non-violent calls to boycott are, as a general matter, legitimate speech that should be protected, while distinguishing expression that draws on antisemitic tropes or stereotypes, rejects the right of Israel to exist or advocates discrimination against Jewish individuals because of their religion. It is well established and worth repeating that forms of expression which are a cover for, or an incitement to, antisemitism do not attract the protection afforded by the Convention, either by virtue of Article 17 or by virtue of Article 10 § 2 interpreted in the light of the latter. In contrast, expressive activity, like that at issue in the present case, which seeks to condemn a government or a State, in line with “a respectable body of opinion”, including Council of Europe governments, the United Nations General Assembly, the European Union and the International Court of Justice (see the Court of Appeal of England and Wales (per Sales LJ) in The Queen on the Application of: Jewish Rights Watch Ltd (T/A Jewish Human Rights Watch) v. Leicester City Council , [2018] EWCA Civ 1551, § 38) can unquestionably fall within the scope of Article 10 of the Convention. This flows clearly from paragraphs 78-79 of the Chamber judgment.

42. Named after Captain Charles Cunningham Boycott, the first boycott was initiated by the tenants and residents of Lough Mask and the village of Ballinrobe in County Mayo, Ireland in 1880. It is clearly a long way from Mayo to a Carrefour supermarket in Illzach, Alsace and from there to Courts of Appeal in Douai and Colmar and onwards to the Criminal Division of the Court of Cassation in Paris.

[1] See J.-B. Jacquin, “L’appel à boycotter Israël déclaré illégal. Un arrêt de la Cour de cassation fait de la France l’un des rares pays à interdire les actions du mouvement pro-palestinien BDS”, Le Monde , 6 Novembre 2015. Author’s own translation, emphasis added, of the following passage: “Il n’y a plus aucun doute possible: le simple appel à boycotter des produits israéliens est totalement illégal en France. Et sévèrement puni. Deux arrêts de la Cour de cassation … font de la France l’un des rares pays du monde, et la seule démocratie, où l’appel au boycott par un mouvement associatif ou citoyen pour critiquer la politique d’un Etat tiers est interdit.”

[2] Paris Court of Appeal, 18 November 2009, cited by R. Medard Inghilterra, “Provocation à la discrimination et appel au boycott de produits étrangers : la Cour de cassation tranche le débat”, (2015) Actualités Droits-Libertés .