Information Note on the Court’s case-law 263

June 2022

Rouillan v. France - 28000/19

Judgment 23.6.2022 [Section V]

Article 10

Article 10-1

Freedom of expression

Disproportionate prison sentence imposed on former terrorist for praising perpetrators of 2015 Paris attacks, after comments on radio and Internet made a few months after event: violation

Facts – The applicant was a former member of Action directe , a far-left terrorist group active in France in the 1980s, who had been given a life sentence and served 25 years in prison before being paroled in 2012.

In February 2016, on a radio show that was recorded and subsequently released on a media website, he characterised the perpetrators of the 2015 Paris and Seine-Saint-Denis terrorist attacks as “brave” and stated that they had “fought bravely”.

In September 2016 the Criminal Court, acting on the basis of Article 421-2-5 of the Criminal Code, convicted the applicant of publicly defending an act of terrorism via an online communication service accessible to the public and sentenced him, inter alia , to an eight-month term of imprisonment.

In May 2017 the Court of Appeal reversed that judgment and convicted the applicant as an accessory to the offence. It further determined that his sentence was to be a term of imprisonment of 18 months, including a suspended portion of 10 months with probation.

On his appeal on points of law to the Court of Cassation, the applicant sought a preliminary ruling from the Constitutional Council (“ QPC ”) regarding the constitutionality of Article 421-2-5 of the Criminal Code. In a decision of May 2018 the Constitutional Council ruled that the provisions in question were consistent with the Constitution.

In November 2018 the Court of Cassation dismissed the applicant’s appeal.

The applicant served his sentence of imprisonment at his home for six months and three days, from July 2020 to January 2021.

Law – Article 10:

The applicant’s conviction and sentence had amounted to an interference with the exercise of his right to freedom of expression.

(a) Prescribed by law

It was true that Article 421-2-5 of the Criminal Code did not define what was meant by “defending” ( apologie ) and that, at the time the applicant had made the remarks in issue, there had as yet been relatively few decisions from the Court of Cassation on the application of the provision, which had only recently come into force.

However, the concept of apologie had existed in domestic law since 1893 and had been interpreted in a line of Court of Cassation cases as consisting of the “glorification of one or more acts, or of the perpetrator thereof” or “incitement to a favourable moral value judgment” concerning a criminal act or its perpetrator.

The Constitutional Council had affirmed that interpretation in its decision of May 2018.

The Court was of the opinion that, considering the language of Article 421-2-5 of the Criminal Code and the approach consistently taken by the national courts to the concept of apologie , the applicant could reasonably have foreseen that he might incur criminal liability for his remarks.

The interference with the applicant’s exercise of the right to freedom of expression had been sufficiently foreseeable and “prescribed by law”.

(b) Legitimate aim

Regard being had to the sensitive nature of the fight against terrorism and the need for the authorities to be alert to conduct that might fuel further violence, the aim of the applicant’s conviction and sentencing as an accessory to the offence of defending acts of terrorism had been the prevention of disorder and crime.

(c) Necessity in a democratic society

Of note, first, was that the applicant had been convicted and sentenced for characterising the perpetrators of the 2015 Paris and Seine-Saint-Denis terrorist attacks as “brave” and stating that they had “fought bravely” during a radio show which had been recorded and later released on a media website. The applicant had been invited onto the show in his capacity as a former member of a terrorist organisation active in France in the 1980s and the author of several books, and to promote a film in which he had played himself. He had thus been the subject of a certain amount of attention in the media. During the show, the interviewers had asked him about a variety of topics which they had announced at the top of the interview, including the state of emergency declared in France in the wake of the terrorist attacks of November 2015, civil liberties and security. At the time, these had been questions of potential interest to the public that might attract its attention or cause it significant concern, and so the applicant’s remarks had been made in the context of a debate on a matter of public interest.

Second, the Criminal Court, the Court of Appeal and the Court of Cassation had been in agreement that the applicant’s characterisations had amounted to an incitement to form a favourable view of the perpetrators of terrorist offences. The Criminal Court, whose reasons for its decision had been espoused by the Court of Appeal and the Court of Cassation, had gauged the remarks in the light of the overall tone of the interview, the personal characteristics of the applicant and the circumstances prevailing in France at the material time in the aftermath of the terrorist attacks of January and November 2015.

In the judgment of the Criminal Court, although the applicant had not expressed support for the Islamist ideology, he had romanticised the practice of terrorism – a practice which had twice earned the applicant himself a sentence of life imprisonment – through a positive, glorifying portrayal of the perpetrators of the Paris attacks. His remarks had been made about a year after the Paris attacks of January 2015 and less than four months after the attacks perpetrated in Paris and Seine-Saint-Denis in November 2015. Furthermore the court had found that, given the applicant’s past involvement in a terrorist organisation, his criminal record and the media spotlight on him, he could not have been unaware that close scrutiny would be paid to the manner in which he spoke about the terrorist attacks. Lastly, he himself had acknowledged that the radio station on which the interview had aired had been popular with young people in the working-class districts of Marseilles and that, while his intention had been to draw new adherents to far-left circles, those listeners had represented an at‑risk audience easily won over by the rhetoric of proponents of a radical Islamism capable of degenerating into acts of terror.

The Court recognised that, although the applicant’s remarks had not amounted to a direct incitement to violence, they had conveyed a positive image of the perpetrators of terrorist attacks and had been uttered at a time when French society was still reeling from the deadly 2015 attacks and the level of terrorist threat remained high – a threat borne out by several other terrorist attacks which had occurred in France in June and July 2016. What was more, the dissemination of the remarks over the radio and online had been capable of reaching a wide audience.

That being so, the Court accepted that the remarks in issue fell to be regarded, in view of their laudatory character, as an indirect incitement to terrorist violence, and saw no reasonable basis on which to depart from the meaning and scope attached to them by a decision of the Criminal Court, whose duly stated reasons had been espoused by the Court of Appeal and the Court of Cassation. It followed that the national authorities enjoyed a wide margin of appreciation, in the present case, when it came to determining whether the interference in issue had been necessary.

Third, the applicant had been sentenced at first instance to a term of imprisonment of eight months, increased on appeal to 18 months, including a suspended portion of 10 months with probation, the better to reflect the circumstances of the case.

In its decision of May 2018, the Constitutional Council had noted that the sentences prescribed by Article 421-2-5 of the Criminal Code were to be “passed according to the circumstances of the offence and the personal characteristics of the perpetrator” before going on to hold that they were not “manifestly disproportionate” to the “nature of the conduct criminalised”. The Court in this case saw no reasonable ground on which to depart from the domestic courts’ assessment regarding the principle behind the penalty. Their reasoning as to why the penalty imposed on the applicant had been warranted – based on the need to combat any promotion of terrorism and on consideration of the offender’s personal characteristics – appeared, in the specific circumstances of the present case, both “relevant” and “sufficient” to justify the interference at issue, which therefore fell to be regarded as responding, in principle, to a pressing social need.

The domestic courts had been at pains, first, to give reasons not just for the principle behind the penalty imposed but also for the nature and length of the sentence, and, second, to explain the justification for the increase of the sentence on appeal. The context of recent and particularly deadly terrorist attacks in which the applicant had knowingly made the remarks in issue had warranted a response from the national authorities that was capable of addressing the threats potentially posed by those remarks to national cohesion as well as to public security in France. However, the penalty imposed on the applicant had been a custodial sentence: although his 18-month prison sentence had been suspended for 10 months, he had been made subject to an electronic monitoring regime for six months and three days. In the particular circumstances of the case, the reasons relied on by the domestic courts in the balancing exercise which had been theirs to perform had not been sufficient to enable the Court to regard such a sentence, in spite of its nature and severity and the seriousness of its effects, as proportionate to the legitimate aim pursued.

That being so, the interference with the applicant’s freedom of expression constituted by the sentence of imprisonment imposed on him had not been “necessary in a democratic society”.

Conclusion: violation (unanimously).

Article 41: Finding of violation was sufficient just satisfaction for non‑pecuniary damage. Claim for pecuniary damage dismissed.

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

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