Resolution CM/ ResDH (2011)104 [1]

Execution of the judgment of the European Court of Human Rights

Mamère against France

(Application No. 12697/03, judgment of 7 November 2006, final on 7 February 2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the right to freedom of expression of the applicant, convicted for defamation under the terms of Sections 29 to 35 of the 1881 Act on the Freedom of the Press (violation of Article 10) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)104

Information on the measures taken to comply with the judgment in the case of

Mamère against France

Introductory summary of the case

This case concerns the breach of the applicant ’ s right to freedom of expression. The applicant, a politician, was ordered in criminal proceedings to pay a fine as well as damages for statements he made during a television programme aired on the state television channel “France 2” in October 1999 and in the course of which the Chernobyl nuclear accident was mentioned.

The European Court pointed out that the case was one in which Article 10 required a high level of protection of the right to freedom of expression for two reasons. First, the Court observed that the applicant ’ s remarks concerned issues of general concern (protection of the environment and public health and the way in which the French authorities dealt with that issue), being part of an extremely important public debate; secondly, the applicant had undeniably been speaking in his capacity as an elected representative committed to ecological issues, so that his comments were a form of political or “militant” expression. The Court accordingly considered that the margin of appreciation available to the authorities in establishing the “need” for the impugned measure was particularly narrow (paragraph 20 of the judgment).

Recalling that people prosecuted on account of their comments on a matter of general interest must have an opportunity to free themselves from liability by establishing their good faith and, in the case of factual allegations, by proving that they were true, the Court observed that this had not been the case for the applicant. The Court considered first, that the reasons given by the domestic courts for their finding of a lack of good faith revealed “ a particularly inflexible interpretation of the applicant ’ s remarks which is not easy to reconcile with the right to freedom of expression” (paragraph 26 of the judgment), and secondly that Section 35 of the 1881 Act on the Freedom of the Press barred the applicant from relying on the defence of truth ( exceptio veritatis ), the events in question dating back more than ten years (paragraph 24 of the judgment).

The Court concluded that applicant ’ s conviction for defamation could not be considered to have been proportionate and hence “necessary in a democratic society”.

I. Payment of just satisfaction and individual measures

The applicant submitted no claim for just satisfaction. Accordingly, the Court considered that no award should be made in this respect.

As regards other possible negative consequences of the violation, in particular the inclusion of the conviction in the applicant ’ s criminal record, the French authorities indicated that, following the European Court ’ s judgment, the applicant had the possibility to request the re-examination of the domestic decision at issue (Section 626-1 and following of the Code of Criminal Procedure) and that, beside these proceedings, there are two other means available to modify the applicant ’ s criminal record, if so he wishes. These two means are set out in the Appendix to the Committee of Ministers ’ Final Resolution C M / Res D H ( 20 1 1)57 adopted on 8 June 2011.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

Concerning the Court ’ s finding in respect of the reasons put forward by the domestic courts for convicting the applicant, the French authorities point out that measures have been taken to ensure extensive publication of this judgment as well as of other, similar judgments (see Final Resolution CM/ ResDH (2011)57 mentioned above) with a view to ensuring that competent courts, directly applying the Convention, may take them into account in practice.

The Mamère judgment was also published and commented on the Intranet of the Bureau du droit européen , international et constitutionnel of the Directorate of Public Freedoms and Legal Affairs of the Ministry of the Interior.

With regard to the legal provision (5th paragraph of Section 35 of the 1881 Act on the Freedom of Press) which makes it impossible for persons prosecuted for defamation to free themselves from liability by proving the truth of the defamatory facts when those facts date back more than ten years, the French authorities indicated that this provision was declared contrary to the Constitution by a decision of the Constitutional Council No. 2011-131 QPC. [2]

The Constitutional Council specified that this declaration of unconstitutionality applies to all charges of defamation which had not arrived at a final judgment, by the date of the publication of the decision in the Official Journal of the French Republic - i.e. 20 May 2011.

Therefore, in application of this decision, the defence of truth concerning the defamatory fact may be invoked by all prosecuted persons, including when facts date back more than ten years.

III. Conclusions of the respondent state

The government considers that no specific individual measure is required, that the general measures adopted will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies

[2] Decision of the Constitutional Council no. 2011-131 QPC of 20 May 2011, Mme Térésa C. and others.