Resolution CM/ ResDH (2011)57 [1]

Execution of the judgments of the European Court of Human Rights

Paturel, Giniewski , Brasilier , Dupuis et autres, Desjardin , Chalabi , Brunet-Lecomte et Sarl Lyon Mag ’ , Orban et autres, Brunet-Lecomte et Tanant , Brunet-Lecomte et Lyon Mag ’ , Haguenauer against France

( Paturel , Application No. 54968/00, judgment of 22/12/2005, final on 22/03/2006)

( Giniewski , Application No. 64016/00, judgment of 31/01/2006, final on 01/05/2006)

( Brasilier , Application No. 71343/01, judgment of 11/04/2006, final on 11/07/2006)

(Dupuis and others, Application No. 1914/02, judgment of 07/06/2007, final on 12/11/2007)

(Desjardin, Application No. 22567/03, judgment of 22/11/2007, final on 22/02/2008)

( Chalabi (Application No. 35916/04, judgment of 18/09/2008, final on 18/12/2008)

(Brunet- Lecomte and Sarl Lyon Mag ’ , Application No. 13327/04, judgment of 20/11/2008, final on 20/02/2009)

( Orban and others, Application No. 20985/05, judgment of 15/01/2009, final on 15/04/2009)

(Brunet- Lecomte and Tanant , Application No. 12662/06, judgment of 08/10/2009, final on 08/01/2010)

(Brunet- Lecomte and Lyon Mag ’ , Application No. 17265/05, judgment of 06/05/2010, final on 06/08/2010)

( Haguenauer , Application No. 34050/05, judgment of 22/04/2010, final on 22/07/2010)

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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in these cases concerns the breach of the applicants ’ right to freedom of expression (violation of Article 10) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

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;

Having satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),

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 these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2011)57

Information on the measures taken to comply with the judgments in the cases of Paturel , Giniewski , Brasilier , Dupuis et autres , Desjardin, Chalabi , Brunet- Lecomte et Sarl Lyon Mag ’ , Orban et autres , Brunet- Lecomte et Tanant , Brunet- Lecomte et Lyon Mag ’ , Haguenauer agains t France

Introductory case summary

These cases concern the breach of the applicants ’ right to freedom of expression due to convictions or findings against them in proceedings for defamation, for condoning or complicity in condoning war crimes, or for violating the secrecy of judicial investigation or professional secrecy (violations of Article 10).

Civil or criminal convictions were delivered against the applicants on the basis of extracts from books published by them ( Paturel , Dupuis and others, Orban and others), pamphlets and banners used in the context of election campaigns ( Brasilier and Desjardin), articles that they had published ( Chalabi , Giniewski , Brunet- Lecomte and Tanant and the two cases of Brunet- Lecomte and SARL Lyon- Mag ) or comments they had made ( Haguenauer ).

In these cases, the Court found that the interference of the public authorities with the applicants ’ right to freedom of expression, at the basis of the findings at issue, was provided by law and pursued a legitimate aim. The Court recalled that in determining the existence of a “pressing social need” ju stifying the necessity of such interference in a democratic society, national authorities had a margin of discretion. However, it considered that this margin is limited when the statements at issue were part of a debate of general interest (Brunet- Lecomte and Lyon- Mag , Chalabi , Desjardin, Giniewski , Orban and others, Haguenauer ) or of the realm of political speech and public debate ( Brasilier , Paturel ). In the case of Dupuis and others, as well as in the Brunet- Lecomte and Tanant case, the Court noted that the limits of admissible criticism must be wider when the person whose reputation is at stake is an influential public figure. In all these cases the European Court , unlike national courts, held that the interference with the applicants ’ right to freedom of expression was not necessary in a democratic society. In order to reach this conclusion the Court, besides examining the proportionality of the decisions at issue, held that the statements or value judgments on which they were based actually had sufficient factual grounds ( Paturel , Brasilier , Desjardin, Chalabi , Brunet- Lecomte and Tanant ), and that the content of the comments were neither immoderate nor obviously insulting or offensive ( Giniewski , Brunet- Lecomte and SARL Lyon- Mag , Chalabi , Brunet- Lecomte and Lyon- Mag , Haguenauer ). In two other cases (see below), the Court held that the publisher had not disregarded his “duties and responsibilities” in providing a medium for uncritically publishing an account in the framework of a “debate of general interest, especially important to the collective memory”, even though this account condoned the use of torture ( Orban and others), or likewise that the authors had observed the rules of journalism in the disclosure of information of major public interest albeit obtained in breach of the secrecy of judicial investigation (Dupuis and others).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application No.

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

PATUREL - No. 54968/00

6 900 EUR

-

7820.29 EUR

14720.29 EUR

Paid on 08/08/2006

DESJARDIN - No. 22567/03

150 EUR

-

800 EUR

950 EUR

Paid on 29/05/2008

BRUNET-LECOMTE and SARL LYON MAG ’ –

No. 13327/04

2000 EUR

-

11034 EUR

13034 EUR

Paid on 21/06/2009 and 24/07/2009

CHALABI – No. 35916/04

-

1500 EUR

-

1500 EUR

Paid on 27/11/2008

ORBAN and others –

No. 20985/05

33041 EUR

-

5000 EUR

38041 EUR

Paid on 23/07/2009

BRUNET-LECOMTE and TANANT – No. 12662/06

21000 EUR

-

-

21 000 EUR

Paid on 25/02/2010 and 16/03/2010

HAGUENAUER n o 34050/05

8000 EUR

2000 EUR

8300 EUR

18300 EUR

Paid on 13/10/2010

b) Individual measures

1) Applicants who received a criminal conviction ( Paturel , Dupuis, Orban and others, Brunet- Lecomte and SARL Lyon- Mag ):

In these cases the applicants were ordered to pay a fine and damages. The just satisfaction awarded by the European Court , if requested by the applicants, covers the sums that they were ordered to pay as a result of the proceedings at issue. As regards the other possible negative consequences of the violation in these cases, in particular the registration of the conviction in the applicant ’ s criminal record, the authorities specified that since the registration of a conviction is the outcome of a court ruling, the principle of parallelism of procedures requires that only another court ruling can annul the content of the criminal record. In this respect, it should be noted that following the judgment of the European Court , the applicant had the possibility to request the re-examination of the domestic decision at issue (Art. L 626-1 and following of the Code of Criminal Procedure).

Furthermore, the authorities underlined that there are two other means, besides said procedure for re ‑ examination of a criminal court decision, to have the applicant ’ s criminal record modified if he/she wants to. These two means, however, only concern part of the criminal record (schedule no. 2, accessible to a number of public administrations listed in the Code of Criminal Procedure) and even if they are used, one part (schedule no. 1) remains nevertheless accessible only to magistrates. One procedure is that of rehabilitation, which is automatically granted in certain cases (within time limits that vary according to the severity of the conviction) or may be claimed before courts (Article 782 and following of the Code of Criminal Procedure). The other is the application for exemption from registration into the criminal record, enabling convicted persons to apply to the court that ordered the conviction to exempt them from having it entered in schedule no. 2 and following schedules of the criminal record.

2) Applicants whose complaints arose from finding against them in civil proceedings ( Brasilier , Giniewski , Desjardin, Chalabi , Brunet- Lecomte and Tanant , Brunet Lecomte and Lyon- Mag , Haguenauer )

In these cases, the applicants were ordered to pay certain amounts in civil proceedings. No consequence deriving from these verdicts seems to persist for them. Indeed, depending on the case:

- either the applicants did not ask within the time-limits to the European Court the award of just satisfaction ( Brasilier and Giniewski cases and case of Brunet- Lecomte and Lyon- Mag ) ;

- or just satisfaction awarded by the European Court redressed the damage sustained (cases of Desjardin and Brunet- Lecomte and Tanant , Haguenauer );

- or the applicant cannot validly claim to have paid any damages at his own expense, as the company owning the magazine that published the article at issue was declared civilly liable as regards payment of pecuniary penalties ( Chalabi case).

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

II. General measures

In all these cases, the European Court criticised the grounds put forward by domestic courts for finding against to the applicants. The legislative texts are not called into question. That is why steps were taken to ensure extensive publicity for the European Court ’ s judgments, so that the competent courts directly applying the Convention might take them into account in practice.

All these judgments were sent out to courts and relevant directorates of the Ministry of Justice.

The Paturel judgment was also published, together with a commentary, on the intranet of the Bureau du droit européen , international et constitutionnel of the Directorate of Public Freedoms and Legal Affairs of the Interior Ministry.

Commentaries on the Paturel , Giniewski , Brasilier , Brunet- Lecomte and Sarl Lyon- Mag , Chalabi and Orban and others, Brunet- Lecomte and Tanant , Brunet- Lecomte et Lyon Mag ’ , as well as on the Haguenauer judgments are published by the Cour de Cassation in the section observatoire du droit auropéen of its website.

Finally, on the internet website of the Cour de Cassation a document dealing specifically with Freedom of expression and protection of personality rights in relation to the press (French and European law – July 2008) is available. The document goes through the case-law of the European Court in this field (the present cases included), with a more general presentation of actions and decisions by the Council of Europe in this field (Committee of Ministers, Parliamentary Assembly and other bodies).

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent further 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 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies