Information Note on the Court’s case-law 190

November 2015

M’Bala M’Bala v. France (dec.) - 25239/13

Decision 20.10.2015 [Section V]

Article 10

Article 10-1

Freedom of expression

Criminal conviction of comedian for expression of negationist and anti-Semitic views during show: inadmissible

Article 17

Criminal conviction of comedian for expression of negationist and anti-Semitic views during show: inadmissible

F acts – In December 2008 the applicant, who is a comedian using the pseudonym “Dieudonné” and who has engaged in political activities, put on a performance in which he invited an academic who had received a number of convictions in France for his negationis t and revisionist opinions, mainly his denial of the existence of gas chambers in concentration camps, to join him on stage at the end of the show. The applicant called up an actor wearing what was described as a “garment of light” – a pair of striped pyja mas reminiscent of the clothing worn by Jewish deportees, with a stitched-on yellow star bearing the word “Jew” – to award the academic a “prize for unfrequentability and insolence”. The prize took the form of a three-branched candlestick (the seven-branch candlestick being an emblem of the Jewish religion), with an apple crowning each branch.

The incident was recorded by the police. In October 2009 the tribunal de grande instance found the applicant guilty of public insults directed at a person or group of persons on account of their origin or of their belonging, or not belonging, to a given ethnic community, nation, race or religion, specifically in this case persons of Jewish origin or faith. The court sentenced him to a fine of EUR 10,000, awarding a tok en euro in damages to each civil party. The Court of Appeal upheld the judgment and the Court of Cassation dismissed the applicant’s appeal on points of law.

Law – Articles 10 and 17: Like the domestic courts, the Court had no doubt about the highly anti-S emitic content of the offending part of the applicant’s show, as he had paid tribute to an individual who was well known in France for his negationist views, for which he had been convicted, leading the audience to applaud him “heartily” and awarding him a “prize”.

The applicant, far from distancing himself from his guest’s views, had merely argued that the academic had not expressed any revisionist remarks during the scene in question. The Court took the view, by contrast, that the fact of describing as “affirmation ists” those who had described the academic of being a negationist was a clear indication on the part of the academic that he was putting “well-established historical facts” on the same plane as a position which was prohibited under French law and which was removed from the protection of Article 10 by the effect of Article 17. An invitation to the audience to give a different spelling to the word “ affirmationnistes ” had revealed the aim, through a word play, of inciting the audience to regard the proponents of the historical truth as being driven by “Zionist” (“ sioniste ” in French) motives. Moreover, the applicant himself had made anti-Zionism one of his main political causes. He had indicated, during the ensuing investigation, that different remarks by the a cademic had been agreed upon. However, among other things, the portrayal of a deportee’s costume as a “garment of light” at least reflected a certain contempt on the part of the applicant for the victims of the Holocaust, thereby adding to the offensive di mension of the scene as a whole.

The applicant was a comedian who had displayed his strong political commitment by standing for election a number of times. At the material time he had already been convicted for racial insult. There was thus no evidence, in the light both of the background and of the remarks actually made on stage, to suggest that the comedian had had any intention of denigrating the views of his guest or of denouncing anti-Semitism. On the contrary, the actor playing the role of a deportee had himself stated that he was not surprised by the decision to call the academic onto the stage, in view of the positions taken by the applicant in public over the previous two years, particularly his support for the then president of the Front National p arty. The audience’s reaction had indeed shown that the anti-Semitic nature of the scene had been perceived as such by them (or at least some of them), this also being the perception of the domestic courts.

Lastly, and above all, the applicant had not exp lained why he had wished to “do better” than in one of his previous performances which had allegedly been described by an observer as “the biggest anti-Semitic rally since the Second World War”. That statement had necessarily guided the audience’s percepti on of what they were going to see. The applicant had sought to use the defence of provocation to justify the racist insult for which he had been charged.

The Court thus took the view that, during the offending scene, the performance had no longer constituted entertainment but had taken on the appearance of a political meeting. The applicant could not claim, in the particular circumstances and in the light o f the whole context of the case, that he had acted in his capacity as an artist with the right to express himself using satire, humour and provocation. In the guise of a comic sketch he had called upon one of the best known French negationists, who had bee n convicted a year earlier for calling into question crimes against humanity, in order to pay tribute to him and give him a platform. Thus, in the context of a preposterous and grotesque mise en scène , he had brought onto the stage an actor, dressed as a J ewish deportee in a concentration camp, who awarded a prize to the academic. In this promotion of negationism, through the key position given to the guest’s appearance and the degrading portrayal of Jewish deportation victims faced with a man who had denie d their extermination, the Court saw a demonstration of hatred and anti-Semitism and support for Holocaust denial. In the Court’s view, the expression of an ideology which ran counter to the basic values of the Convention, as stated in its Preamble, namely justice and peace, could not be considered a performance which, even if satirical or provocative, fell within the protection of Article 10 of the Convention.

The Court further observed that while Article 17 of the Convention had in principle been applied in previous cases to explicit and direct remarks which did not require any interpretation, it was convinced that a blatant display of hatred and anti-Semitism disguised as an artistic production was as dangerous as a fully-fledged and immediate attack. It did not therefore deserve protection under Article 10 of the Convention.

Accordingly, since the acts at issue were unmistakeably negationist and anti-Semitic in nature, both in their content and in their general tone, and thus in their aim, the Court foun d that the applicant had sought to deflect Article 10 from its real purpose by using his right to freedom of expression for ends which were incompatible with the letter and spirit of the Convention and which, if admitted, would contribute to the destructio n of Convention rights and freedoms.

Consequently, pursuant to Article 17 of the Convention, the applicant was not entitled to the protection of Article 10.

Conclusion : inadmissible (incompatible ratione materiae ).

© Council of Europe/European Court of H uman Rights This summary by the Registry does not bind the Court.

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