JOINT PARTLY DISSENTING OPINION OF JUDGES ROZAKIS, BRATZA, TULKENS AND Å IKUTA

( Translation )

We are unable to agree with the finding of the majority that there has been no violation of Article 10 of the Convention in the present case. In the first place, it is noteworthy in our view that in the course of the judicial proceedings there was a gradual reduction in the number of passages regarded as defamatory: the direct summons served by the civil parties designated six passages; the Paris Criminal Court, in its judgment of 11 October 1999, found four of them to be defamatory; the judgment of the Paris Court of Appeal of 13 September 2000 limited the number to three; lastly, the Court, for its part, has identified two defamatory passages, representing three lines in all from a novel of 138 pages.

I

In terms of the general principles , it should be emphasised that freedom of expression is one of the foundations of a democratic society, of which the hallmarks are pluralism, tolerance and broadmindedness (see Handyside v. the United Kingdom , 7 December 1976, § 49, Series A no. 24 ). On numerous occasions the Court has referred to the key importance of freedom of expression as one of the preconditions for a functioning democracy (see Özgür Gündem v. Turkey , no. 23144/93, § 43, ECHR 2000 ‑ III ). This assertion of the social function of freedom of expression constitutes the basic philosophy of the Court ’ s Article 10 case-law. It follows that the right to freedom of expression is not only a safeguard against State interference (an individual right), it is also a general fundamental principle of life in a democracy. Moreover, freedom of expression is not an end in itself but a means by which a democratic society is established. In this context we will first examine the situation of the first two applicants then that of the third applicant.

II

1. With regard to the first two applicants, we attach considerable weight to the nature of the work in question and, as explained later, we consider that the Court has not sufficiently taken this into account. It is undeniable – and not in fact disputed – that the book containing the two passages finally regarded as defamatory is not a news report but a novel , written by an author who is recognised as such. We are not saying that artistic and literary creation should be immune from all criticism and unbridled, but we

nevertheless believe that this aspect should be given due consideration.

In this connection, we are not prepared to espouse the view of the domestic courts that no distinction was to be made based on the form of expression used or, at the very least, that this was not an essential factor . The 11 October 1999 judgment of the Paris Criminal Court, for example, rules out or neutralises such a consideration: “although it is a novel, and although the offending remarks are only made by fictional characters ...”, the text was to be assessed “regardless of its literary genre”. The Court of Appeal, in its judgment of 13 September 2000, also pointed out that it would not take account of the fact that the work was a novel and therefore a fictional device: “... On that basis, any writing, whether political, philosophical, novelistic or even poetical, was governed by the applicable rules in such matters, with regard both to public order and to the protection of individuals”. In addition, by seeking to ascertain the author ’ s thoughts from the remarks of fictional characters in a fictional situation, the Court of Appeal imprisoned literature in a set of rigid rules at odds with the freedom of artistic creation and expression.

2. In our view such a radical position represents a clear departure from our case-law, which has laid emphasis on the role of artistic creation in political debate.

In Müller and Others v. Switzerland (24 May 1988, Series A no. 133) the Court already had occasion to point out that Article 10 covered freedom of artistic expression – notably within freedom to receive and impart ideas – adding that it afforded the opportunity to take part in the exchange of cultural, political and social information and ideas (§ 27) and it concluded that this imposed on the State a particular obligation not to encroach on the freedom of expression of creative artists (§ 33).

In the area of literary creation – as in the present case – the Court applied Article 10 of the Convention to the medium of poetry in KarataÅŸ v. Turkey ([GC], no. 23168/94, ECHR 1999 ‑ IV) : “The work in issue contained poems which, through the frequent use of pathos and metaphors, called for self-sacrifice for ‘ Kurdistan ’ and included some particularly aggressive passages directed at the Turkish authorities. Taken literally, the poems might be construed as inciting readers to hatred, revolt and the use of violence. In deciding whether they in fact did so, it must nevertheless be borne in mind that the medium used by the applicant was poetry, a form of artistic expression that appeals to only a minority of readers” (§ 49). Moreover, in the context of Article 10, the Court added: “Those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society. Hence the obligation on the State not to encroach unduly on their freedom of expression” (ibid.). Lastly, it declared as follows: “As to the tone of the poems in the present case – which the Court should not be taken to approve – it must be remembered that Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed” (ibid.).

The case of Al ı nak v. Turkey (no. 40287/98, 29 March 2005) concerned a novel about the torture of villagers that was based on real events. The Court observed as follows: “... the book contains passages in which graphic details are given of fictional ill-treatment and atrocities committed against villagers, which no doubt creates in the mind of the reader a powerful hostility towards the injustice to which the villagers were subjected in the tale. Taken literally, certain passages might be construed as inciting readers to hatred, revolt and the use of violence. In deciding whether they in fact did so, it must nevertheless be borne in mind that the medium used by the applicant was a novel, a form of artistic expression that appeals to a relatively narrow public compared to, for example, the mass media” (§ 41). After reiterating, in paragraphs 42 and 43 of its judgment, all the general principles that we have mentioned above, the Court pointed out that “the impugned book [was] a novel classified as fiction, albeit purportedly based on real events”. It further observed as follows: “... even though some of the passages from the book seem very hostile in tone, the Court considers that their artistic nature and limited impact reduced them to an expression of deep distress in the face of tragic events, rather than a call to violence” (§ 45). In the present case the Government have not indicated the number of copies of Mathieu Lindon ’ s novel that were sold and distributed.

Even though it does not directly concern a novel or work of fiction, the case of Klein v. Slovakia (no. 72208/01, 31 October 2006) is nevertheless significant. In that case the Court expressly took account of the applicant ’ s explanation that the article he had published in a weekly journal aimed at intellectually-oriented readers was in fact meant as a joke which he had not expected to be understood and appreciated by everyone. The journal moreover had a limited circulation of approximately 8,000 copies (§ 48).

Lastly, in its judgment in Vereinigung Bildender Künstler v. Austria (no. 68354/01, 25 January 2007 ) concerning an injunction against the exhibition of pictures considered to be indecent, the Court based its findings on the same principles as those that govern its case-law on artistic creation, observing that “ [ a ] rtists and those who promote their work are certainly not immune from the possibility of limitations as provided for in paragraph 2 of Article 10” (§ 26). However, the following assessment was gi ven in paragraph 33 of that judgment: “The Court finds that such portrayal amounted to a caricature of the persons concerned using satirical elements. It notes that satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with an artist ’ s right to such expression must be examined with particular care”.

3. When the Court is confronted, as in the present case, with a situation of conflict between freedom of expression (Article 10 of the Convention) and the right to protection of one ’ s reputation (Article 8), its method is to weigh the various interests against each other in order to ascertain whether a fair balance has been struck between the competing rights and interests. By contrast, neither the Paris Criminal Court nor the Court of Appeal engaged in such an analysis.

Moreover, by endorsing — or even paraphrasing — the reasoning given by the domestic courts, adhering to the logic they themselves adopted, the Court in its judgment has quite simply refrained from carrying out its own review. The result is that European supervision is lacking, or is at best considerably limited, and this represents a significant departure from our case-law in matters of criticism of politicians.

By espousing the method of analysis both of the Paris Criminal Court judgment of 7 September 2000 and of the Court of Appeal judgment of 21 March 2001, making an artificial distinction within the impugned novel between what is fiction and what represents the author ’ s intention, the majority have created areas of uncertainty. In particular, the question whether words or expressions attributed to fictional characters are to be regarded as defamatory is made to depend on whether the author is to be seen as having sufficiently distanced himself in the novel from the words spoken. This seems to us to be a very fragile foundation on which to conclude that an author is guilty of defamation. By way of example, why is it that the words attributed to the lawyer ’ s boyfriend – “so they ’ ll feel morally entitled to beat you up – to come after you, ten against one, with metal bars, truncheons and steel-capped boots ... Nobody leaves the Front National with impunity.” (p. 86) – are not regarded as defamatory whereas the words attributed to the anti-racist demonstrators in front of the law courts – “... an effective way to fight Le Pen is to call for him to be put in the dock and show that he isn ’ t the Chairman of a political party but the chief of a gang of killers ... ” (p. 10) – are clearly found to be defamatory?

4. To ensure the stringent application of the Court ’ s case-law to this type of situation, the relative importance of various factors should have been assessed. In the first place, the fact that it was a novel, in other words an artistic work, is capable of justifying a higher level of protection. In this connection we find it difficult to place on the same plane, as the majority do ( see paragraph 45 in fine of the judgment), situations concerning freedom of expression in literary works and situations where this right is relied upon in relation to police investigations ( see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, ECHR 2004 ‑ XI ), to the dangers of using a microwave oven ( see Hertel v. Switzerland , 25 August 1998, Reports of Judgments and Decisions 1998 ‑ VI ) or to advertising ( see Steel and Morris v. the United Kingdom , no. 68416/01, ECHR 2005 ‑ II ).

Furthermore, the status of the injured party is also a factor which comes into play in the determination of the admissible limits to the rights and freedoms protected. In this connection, public figures and politicians, on account of the responsibilities they bear, are exposed to criticism as a matter of course and are therefore required to show greater tolerance towards polemical discourse or even insults directed against them. The founding judgment concerning the criticism of politicians is clearly that of Lingens v. Austria ( 8 July 1986, § 42 , Series A no. 103 ) and since then there has been a high degree of consistency in the Court ’ s case-law with regard to the application of this fundamental principle [2] . The recent declaration of the Committee of Ministers on freedom of political debate in the media fundamentally adheres to the Court ’ s case-law and explains its raison d ’ être : “Political figures have decided to appeal to the confidence of the public and accepted to subject themselves to public political debate and are therefore subject to close public scrutiny and potentially robust and strong public criticism through the media over the way in which they have carried out or carry out their functions.” [3] The Court has applied these principles in cases where the factual circumstances were similar to those of the present case. For instance, in Lopes Gomes da Silva v. Portugal ( no. 37698/97, ECHR 2000 ‑ X) the applicant had been convicted for describing a person reported to be standing in the Lisbon City Council elections as “grotesque and ... buffoonish ... such an incredible mixture of crude reactionaryism ... , fascist bigotry and coarse anti-Semitism” (§ 10) and the Court found that there had been a violation of Article 10 of the Convention. Mutatis mutandis , in Karman v. Russia (no. 29372/02, 14 December 2006) the Court found that the conviction of a journalist who had described a politician as a “local neofascist” had entailed a violation of Article 10 of the Convention. In DÄ…browski v. Poland (no. 18235/02, 19 December 2006 ) the Court also found that there had been a violation of Article 10 of the Convention in respect of an article that had led to a journalist ’ s conviction for describing a deputy mayor as a “mayor-burglar”.

As regards Mr Jean-Marie Le Pen, it may reasonably be argued that he should accept an even higher degree of tolerance precisely because he is a politician who is known for the virulence of his discourse and for his extremist views. On this point we refer in particular to the case of Oberschlick v. Austria (no. 2) (1 July 1997, Reports 1997 ‑ IV) where the Court considered that “calling a politician a Trottel in public may offend him” but that, in the instant case, “the word [did] not seem disproportionate to the indignation knowingly aroused by Mr Haider” (§ 34). Similarly, in Wirtschafts-Trend Zeitschriften-Verlags GmbH v. Austria (no. 58547/00, 27 October 2005) the Court considered that Mr Haider was a leading politician who had been known for years for his ambiguous statements about the National Socialist regime and had thus exposed himself to fierce criticism inside Austria but also at the European level. He therefore had to display a particularly high degree of tolerance in this context (§ 37). Of course, such an observation should be kept in the context of the present case and of those cases that have given rise to the judgments of the Court cited above, and we do not suggest that it be applied generally. In other situations it may be difficult to determine the extreme nature of political ideas or distinguish them from other categories of ideas.

5. In examining insulting, offensive, libellous and defamatory discourse, the Court has observed that it is necessary to make a distinction depending on whether the offending remarks are statements of fact or value judgments. However, value judgments must be supported by a sufficient factual basis. As a general rule, the Court considers that the necessity of a link between a value judgment and its supporting facts may vary from case to case according to the specific circumstances (see De Haes and Gijsels v. Belgium , 24 February 1997, § 47, Reports 1997 ‑ I ; Feldek v. Slovakia , no. 29032/95, § 86, ECHR 2001 ‑ VIII ; and Wirtschafts-Trend Zeitschriften-Verlags GmbH , cited above, § 35 ). The Court has also found that the requirement to adduce the facts on which a value judgment is based is less stringent when they are already known to the general public (see Feldek , cited above, § 86). In this context we consider it appropriate to make two observations.

First of all, it is generally accepted – and the majority acknowledge this – that “ there is no need to make this distinction when dealing with extracts from a novel” ( see paragraph 55). However, the Court considers that it does become fully pertinent where, as in the present case “ the impugned work is not one of pure fiction but introduces real characters or facts” (ibid.). In our view that assertion is quite simply incorrect. A reality novel largely remains a novel, just as docufiction remains, for the most part, fiction. Strictly speaking, the Court should simply have said that the rule becomes partly pertinent when the novel and the reality coincide.

Furthermore, the criticism levelled against the applicants by the Court of Appeal for not having carried out a “basic verification” appears to us to be at odds with the facts and the reality. It is clear in our view that a sufficient factual basis could easily be derived from Jean-Marie Le Pen ’ s various convictions throughout his political career, particularly for the following offences: “trivialisation of crimes against humanity, making allowances for atrocities” (Versailles Court of Appeal, 18 March 1991, and Nanterre tribunal de grande instance , 26 December 1997); “apologia for war crimes” (Court of Cassation, 14 January 1971); “anti-Semitism, incitement to racial hatred” (court of Aubervilliers, 11 March 1986); “incitement to hatred or racial violence” (Paris Court of Appeal, 29 March 1989, and Lyon s Court of Appeal, 23 March 1991); “ proffering insults against public figures and offensive remarks” (Paris Court of Appeal, 3 June 1993, and court of Strasbourg, 6 January 1997); and “physical violence” (Paris tribunal de grande instance , 16 January 1969, and Court of Cassation, 2 April 1998). Similarly, Mr Jean-Marie Le Pen has lost a number of cases, particularly suits against the accusation of “incitement to racism, anti-Semitism and Nazism” (Amiens Court of Appeal, 28 October 1985; Lyon s Court of Appeal, 27 March 1986; and Toulon Criminal Court, 20 June 1990, judgment upheld by Aix-en-Provence Court of Appeal on 25 February 1991) and against the accusation that he engaged in torture (Paris Court of Appeal, 22 June 1984). In addition, it may reasonably be argued that Mr Jean-Marie Le Pen ’ s speeches and opinions inciting and provoking hatred and violence, for which he has been convicted, may have encouraged, and indeed prompted, militants to commit acts of violence.

6. According to the Court ’ s case-law, the limits to freedom of expression are overstepped where there is incitement to violence or hatred. By contrast, in Dağtekin v. Turkey (no. 36215/97, 13 January 2005 ) – which also concerned a novel – the Court found that there had been a violation of the Convention, observing that whilst certain particularly caustic passages of the book painted an extremely negative picture of the history of the Turkish State and the tone was thus hostile, they nevertheless did not amount to incitement to engage in violence, armed resistance or rebellion, nor did they constitute hate speech (§ 26). The Court reached the same conclusion in Yalçın Küçük v. Turkey (no. 28493/95, 5 December 2002 ), which concerned an interview book rather than a novel, but the Court nevertheless considered that the book had to be placed in the general context and that it was written in a literary and metaphorical style.

In the present judgment, the Court reiterates that it has had regard to the nature of the remarks made, in particular to the underlying intention to stigmatise the other side, and to the fact that their content is such as to stir up violence and hatred, thus going beyond what is tolerable in political debate, even in respect of a figure who occupies an extremist position in the political spectrum ( see paragraph 57). Mutatis mutandis , the Court refers to its judgment in Sürek v. Turkey (no. 1) ([GC], no. 26682/95, ECHR 1999 ‑ IV) . We find that it is incorrect to draw a parallel between the facts of the present case and those of the Sürek case, which concerned the publication of a particularly virulent text – describing the Turkish army as fascist and the Republic as a “murder gang”, calling the Kurdish population to fight against the State, inciting hatred and violence, and being placed in the specific and sensitive context of the Kurdish question. It was a sort of appeal to rise up against the State itself, not criticism of a politician who does not represent the State.

In addition, and more fundamentally, we believe that it is excessive and inaccurate to claim that the novel in question constitutes an appeal to violence or hatred. The work criticises a politician who is himself inclined to make comments of such a nature, as shown by the convictions pronounced against him. In the present case, the expressions “ the chief of a gang of killers” (p. 10) and “a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood” (p. 136) cannot be taken literally; their intention is to convey the message that this politician, through his discourse, encourages his followers to engage in acts of extreme violence, especially against minorities, as the Bouaram case itself showed. In this sense, these expressions are also value judgments which have an established factual basis.

7. Lastly, the sentence handed down in the present case was certainly not symbolic and there has been no review of the proportionality of the sanction (compare, for example, CumpÇŽnÇŽ and MazÇŽre v. Romania [GC], no. 33348/96, §§ 111 et seq., ECHR 2004 ‑ XI ). Moreover, it may also be questioned whether it is still justified, in the twenty-first century, for damage to reputation through the press, media or other forms of communication to entail punishment in the criminal courts. In its Recommendation 1589(2003), the Parliamentary Assembly of the Council of Europe made the following observation: “The media legislation in some [west European] countries is outdated (for instance the French press law dates back to 1881) and although restrictive provisions are no longer applied in practice, they provide a suitable excuse for new democracies not willing to democratise their own media legislation .”

III

1. As regards the third applicant, the publication director of Libération , admittedly it was perhaps not advisable to allow ninety-seven writers to use a newspaper column to express such views. However, as the Court has found in the present judgment, since freedom of the press is in issue “this is a case which attracts a particularly high level of protection of freedom of expression under Article 10” ( see paragraph 62). It is not in dispute that the article was published in the context of information and ideas on questions of public interest.

In its judgment in Jersild v. Denmark ( 23 September 1994, Series A no. 298) the Court – which warned that if duties and responsibilities were applied too extensively there was a risk of undermining the protection of freedom of expression – declared that the journalist ’ s increased responsibility could not, however, justify scrutiny of the techniques used to convey information. In the present case, the director of the newspaper Libération used a column entitled “ Rebonds ” and it is not for us to comment on that. In its judgment in Bladet Tromsø and Stensaas v. Norway ([GC], no. 21980/93, ECHR 1999 ‑ III) the Court also considered that it was not its role, any more than that of the domestic courts, to substitute itself for the press and dictate the reporting technique that journalists should adopt.

2. Apart from the argument that he had reproduced passages previously judged to be defamatory, the judicial authorities justified the third applicant ’ s conviction by the fact that the polemical aim of a text could not absolve it from all regulation of expression, when, far from being based merely on an academic debate, its line of argument was built around reference to precise facts, and that the applicant had therefore been under an obligation to carry out a meaningful investigation before making particularly serious accusations, namely that Mr Le Pen could be regarded as the “chief of a gang of killers” or as a “vampire”. In other words, for the applicant to have acted in good faith he should have adduced evidence to substantiate his offending allegations.

3. Such an obligation, in our view, seems to run counter to the Court ’ s case-law concerning the duties and responsibilities of the press. For example, in its judgment in Thoma v. Luxembourg (no. 38432/97, ECHR 2001 ‑ III) the Court had occasion to define the responsibility borne by journalists in the publication of information supplied to them by third parties, and it restated the principle whereby “punishment of a journalist for assisting in the dissemination of statements made by another person ... would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so” (§ 62). The third applicant could not seriously be criticised for informing the public about the protest movement that had emerged following the judgment against Mathieu Lindon ’ s work, but nor could he be criticised for failing to correct, by comments of his own, the allegations regarded as defamatory. In its judgment in Radio France and Others v. France (no. 53984/00, ECHR 2004 ‑ II ) the Court considered that “... a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation was not reconcilable with the press ’ s role of providing information on current events, opinions and ideas” (§ 27). It cannot therefore be argued that, by simply reporting in the column “ Rebonds ” on the support of ninety-seven writers for Mathieu Lindon and by publishing their opinion that the impugned passages were not defamatory, the third applicant had failed in his duty to act in good faith.

[1] . In this respect the following well-known words of Shakespeare come to mind: “Good name i n man and woman, dear my lord, I s the immediate jewel of their souls: Who s teals my purse steals trash …; B ut he that filches from me my good name … makes me poor indeed.” ( Othello , Act III, scene 3)

[2] . M. Oetheimer, L’Harmonisation de la liberté d’expression en Europe. Contribution à l’étude de l’article 10 de la Convention européenne des droits de l’homme et de son application en Autriche et au Royaume-Uni , Paris, Pédone, 2001, p. 112.

[3] . Declaration on freedom of political debate in the media (adopted by the Committee of Ministers on 12 February 2004 at the 872nd meeting of the Ministers’ Deputies), point III.