JOINT DISSENTING OPINION OF JUDGES FOIGHEL, LOIZOU and S ir J ohn FREELand

1. We agree that the conviction and sentencing of the applicants in this case amounted to an interference with their right to freedom of expression as guaranteed by Article 10 of the Convention and that the restriction which this interference represented is to be regarded as having been “prescribed by law” in the sense of paragraph 2 of that Article and as having pursued a legitimate aim under that paragraph. Where we differ from the majority is in the assessment of whether the interference is to be treated as “necessary in a democratic society”.

2. As to that question, it should first be noted that the text in question was published as a full-page advertisement, paid for by the applicants’ associations, in the edition of Le Monde for 13 July 1984. The text contained a series of slogans, in capital letters and bold type (People of France, you have short memories if you have forgotten…), interspersed with short passages in laudatory terms purporting to summarise episodes in the career of Philippe Pétain. It was clearly intended to drum up support for the applicants’ associations and, no doubt to that end, concluded with an invitation to readers to write to those associations. Nowhere, however, did it say anything about the reopening of the case of Philippe Pétain, which has been claimed by the applicants to have been the purpose of the advertisement. Nor can it be regarded as in any valid sense a contribution to genuine historical debate, given its wholly one-sided and promotional character.

3. Secondly, it perhaps needs to be said that it is not for the Court to decide whether the conviction of the applicants of apology for serious offences of collaboration was or was not justified as a matter of French law. That conviction proceeded from the judgment of the Paris Court of Appeal of 26 January 1990, in which the text of the advertisement was carefully analysed, and was upheld by the Court of Cassation in its judgment of 16 November 1993. The relevant question for our Court is whether the Convention test of necessity in a democratic society is satisfied in the case of this outcome in the domestic courts.

4. As is clear from the Court’s case-law, the adjective “necessary”, as part of the test of necessity in a democratic society, is to be understood as implying a “pressing social need” and it is in the first place for the national authorities to determine whether the interference in issue corresponds to such a need, for which they enjoy a greater or lesser margin of appreciation. In cases involving the right to freedom of expression the Court has generally been particularly restrictive in its approach to the margin of

appreciation, although it has been prepared to accept a wider margin in relation to issues likely to offend personal convictions in the religious or moral domain. That latter category, based as it is on the principle that the margin of appreciation is wider where the aim pursued cannot be objectively defined on the European scale, is in our view not to be regarded as confined to those particular issues. It may include an issue such as that in question in the present case, where the aim pursued arose out of historical circumstances peculiar to France and where the French authorities were uniquely well placed, by virtue of their direct and continuous contact with the vital forces of their country, to assess the consequences for the protection of the rights of other groups, such as the associations of former Resistance fighters and of deportees who were civil parties to the domestic proceedings, and more generally for the process of healing the wounds and divisions in French society resulting from the events of the 1940s. We would particularly underline that Article 10 § 2 of the Convention refers not only to the protection of the rights of others but also to the duties and responsibilities which accompany the exercise of the freedom of expression; and we consider it entirely justifiable – indeed, only natural – that in circumstances such as those of the present case full and sympathetic account should be taken of the extent of offensiveness of the publication to the sensitivities of groups of victims affected by it.

5. Are the French authorities, then, to be regarded as having exceeded their margin of appreciation by virtue of the facts that the legislature has (as part of a law which was primarily concerned to establish an amnesty for serious offences of collaboration) criminalised acts of apology for such offences and that the courts have determined the publication of an advertisement in the terms in question to constitute such an act and imposed the penalties which they did? It has (unsurprisingly) not been argued before the Court that the criminalisation of acts of apology for serious offences of collaboration in itself went beyond the margin of appreciation. As regards the content of the advertisement, the applicants have, in order to distance Philippe Pétain from personal responsibility for the darker side of what was done in France during the Vichy era and as part of the vindication of his actions during the period, pointed to the references in the text to “Nazi atrocities and persecutions” and its claim that he afforded protection to the French people from “German omnipotence and barbarism”. Yet, as the Paris Court of Appeal observed in its judgment of 26 January 1990, the text said nothing at all about the notorious racist, and in particular anti-Jewish, activities undertaken by the Pétain regime itself [4] , beginning with the Act relating to aliens of Jewish race which was signed by him on 3 October 1940.

6. The distortion inherent in this contrasting silence about one of the most unsavoury features of the Pétain regime is capable of being understood as amounting to implicit support for what was done. Even if such a distortion is, however, insufficient, because too indirect or remote, to constitute an “activity or … act aimed at the destruction of any of the rights and freedoms set forth” in the Convention, within the meaning of its Article 17, so as to disable the applicants from relying on Article 10, the principle which underlies Article 17 is a factor which can properly be taken into account in the assessment of the exercise of the margin of appreciation and the existence of necessity. That principle is one of firm discouragement of the promotion of values hostile to those embodied in the Convention. Having regard to the conclusions reached in the judgment of the Paris Court of Appeal of 26 January 1990 as to the effect to be given to the wording of the advertisement, and having regard to the concern which the French authorities, with their particular familiarity with the historical background and current context, could legitimately have to demonstrate that racism and, in particular, anti-Semitism, are not to be condoned, we consider that the margin of appreciation should not be treated as having been exceeded and that the test of necessity in a democratic society has been satisfied in this case.

7. On the question of proportionality, we would note only that the penalty imposed by the Paris Court of Appeal was limited to the requirement of a symbolic payment of one franc to the civil parties and the ordering of publication of excerpts from that Court’s judgment in Le Monde .

8. We would add that our conclusion on the question of necessity in a democratic society is confined to the circumstances of the present case and should of course not be understood as suggesting in any way that it is permissible to restrict genuine debate about controversial historical figures. Such debate about the role of Philippe Pétain has been, and no doubt will continue to be, engaged in vigorously in France.

9. For the reasons indicated above, we voted against the finding of a violation of Article 10 of the Convention in this case.

dissenting opinion of Judge Morenilla

( Translation )

1. I regret that I am unable to agree with the finding of a violation of Article 10 of the Convention, in the very special circumstances of the present case. In my opinion, the national courts were in a better position than our Court to rule on any criminal consequences of publication of the advertisement in question and, accordingly, to assess the necessity of ordering the applicants, for publicly defending the crimes of collaboration with the enemy (section 24 of the Freedom of the Press Act of 29 July 1881), to pay the civil parties the sum of one franc in damages and to have the judgment published at their expense. European supervision consists, as our Court has said repeatedly since its Handyside v. the United Kingdom judgment of 7 December 1976, in reviewing under Article 10 “the decisions [the national courts] delivered in the exercise of their power of appreciation” (Series A no. 24, p. 23, § 50).

2. As the President of the Commission, Mr Trechsel, observed in his dissenting opinion, referring to our Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979 (Series A no. 30, p. 36, § 59), the margin of appreciation of the Contracting States is wider where the aim pursued cannot be objectively defined on a European scale. In the present case, assessment of how a country’s history should be presented and of the effect of a publication on the feelings of the population in an important sector of society, with a view to determining the necessity in a democratic society of imposing a restriction like the one in issue, is a matter for the judicial authorities of that country, who are “called upon to interpret and apply the laws in force” (see the Handyside judgment previously cited, p. 22, § 48).

3. On the other hand, I agree with the rest of the opinion of the majority, in particular their view that the applicants’ conviction for aiding and abetting a public defence of the crimes of collaboration with the enemy amounted to interference with their right to impart information or ideas, notwithstanding the rather symbolic nature of the penalty. I nevertheless abstain, for the reasons set out above, from making a personal assessment of the text of the advertisement, which was signed by two associations legally constituted under domestic law, or of its effect on contemporary European society, more than half a century after the historical events it referred to.

dissenting opinion of judge casadevall

( Translation )

1. With the minority, bearing in mind the presentation of the facts and the content of the text in issue, I consider that there has been no breach of Article 10 of the Convention in the present case. The interference was prescribed by domestic law, pursued a legitimate aim and was, in my opinion, necessary for the purposes of paragraph 2 of Article 10.

2. That second paragraph provides that exercise of the freedom of expression – a right which carries with it duties and responsibilities – may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law, as measures necessary for the protection of certain legally protected interests.

3. The possibility of prescribing interference, and the State’s margin of appreciation, which is wider in certain fields [5] , lead me to consider that the national courts were best placed to assess the facts and the social consequences of publication of the text in issue, since, as the Government emphasised in their memorial, “…those circumstances refer to past events and to France’s debate with its own history”. With regard to the severity which should be shown, I do not accept the idea, put forward by the majority in paragraph 55 of the judgment, that the need for severity diminishes with the passage of time (“… forty years on …”).

4. Quite clearly, the text does not take the form of an article of substance, making a serious historical analysis, but of an advertisement (whose insertion in Le Monde was paid for) with passages in large, bold type, expressly urging readers to write to the two associations named at the foot of the page – the usual practice where advertisements are concerned.

5. It cannot be maintained that this text was likely to contribute to any debate of general interest for the French people and their history. In the recent case of Hertel v. Switzerland (judgment of 25 August 1998, Reports 1998-VI) the issue was different: the applicant in that case had been subjected to censorship for publishing in a specialist magazine, distributed mainly to subscribers, an article in which he had put forward a technical and scientific argument – whether this was correct or incorrect being of no consequence – relating to an environmental and public-health question.

6. It is not for me to judge the text of the advertisement, still less to make a historical analysis of the content, for which I would not be qualified. However, the Government pointed out in their observations that it contained manifest errors, falsehoods and above all omissions which had made it possible to paint a portrait scarcely compatible with, and indeed even contrary to, the historical reality. These are facts which were considered and assessed by the French courts before they convicted the applicants.

7. In the Zana v. Turkey case (judgment of 25 November 1997, Reports 1997-VII) the Court analysed what the applicant had said during a press interview. It observed: “Those words could be interpreted in several ways but, at all events, they are both contradictory and ambiguous…” (see paragraph 58) and “That statement cannot, however, be looked at in isolation. It had a special significance in the circumstances of the case, as the applicant must have realised” (see paragraph 59). It concluded that the punishment imposed on the applicant could reasonably be regarded as answering a pressing social need and that the reasons adduced by the national authorities were relevant and sufficient (see paragraph 61) having regard to the margin of appreciation which national authorities had “… in such a case …” (see paragraph 62). That case concerned a public defence of an act punishable as a serious crime under national law. A similar analysis was required, in my opinion, in the present case. In any event, the applicants were ordered only to pay the civil parties the symbolic sum of one franc and to have the judgment published at their expense.

8. It should also be noted, as Mr Geus pointed out (report of the Commission, p. 2918), that there was a manifest contradiction between the content of the advertisement and the aim allegedly pursued by its authors.

9. Lastly, I share the concerns expressed by the President of the Commission, Mr Trechsel, in his dissenting opinion, regarding the very disturbing favourable conjuncture which apparently obtains at present for certain extreme-right ideas in Europe.

[1] Notes by the Registrar

. The case is numbered 55 / 1997 / 839 / 1045 . The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] . Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry.

[4] . ”Undoubtedly, the ugliest side of Vichy’s abortive moral revolution was its vicious racism, and in particular its own special brand of anti-Semitism. Recent research has established beyond question that, far from being a Nazi imposition, Vichy’s anti-Semitism was entirely home-grown and in certain respects even exceeded German requirements” ( Twentieth Century France: Politics and Society 1898–1991 by James F. McMillan, pp. 138 – 39. See also Vichy France and the Jews by Michael R. Marrus and Robert O. Paxton, particularly pp. 365 – 72).

[5] . “In assessing this question, the Court recalls that the domestic margin of appreciation is not identical as regards each of the aims listed in Article 10 § 2” (Worm v. Austria judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, p. 1551, § 49).