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EUROPEAN COURT OF HUMAN RIGHTS   22.10.2007   Press release issued by the Registrar   GRAND CHAMBER JUDGMENT LINDON, OTCHAKOVSKY-LAURENS AND JULY v. FRANCE   The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment[1] in the case of Lindon, Otchakovsky-Laurens and July v. France (application nos. 21279/02 and 36448/02).   The Court held, by 13 votes to four, that there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights concerning either: the convictions of the writer and publisher of a novel based on murders by Front National militants; or, the conviction for defamation of the publication director of the national daily newspaper Libération, which had published a petition signed by 97 contemporary writers in support of the novelist.   The Court further held, unanimously, that there had been no violation of Article 6 § 1 (right to a fair trial) of the Convention concerning the fairness of the proceedings against the newspaper.   (The judgment is available in English and French.)   1.  Principal facts   The applicants, Mathieu Lindon, Paul Otchakovsky-Laurens and Serge July, are French nationals who were born in 1955, 1944 and 1949 respectively and live in Paris. Mr Lindon is a writer, Mr Otchakovsky-Laurens is the chairman of the board of directors of the publishing company P.O.L., and Mr July was the publication director of Libération.   In August 1998 P.O.L. published a novel by Mr Lindon called Le Procès de Jean‑Marie Le Pen (“Jean-Marie Le Pen on Trial”). The novel recounts the trial of a Front National militant, who, while putting up posters for his party with other militants, committed the cold-blooded murder of a young man of North African descent and admitted that it was a racist crime. The novel is based on real events and in particular the murders, in 1995, of Brahim Bouaram, a young Moroccan who was thrown into the River Seine by skinheads during a Front National march, and of Ibrahim Ali, a young Frenchman of Comorian origin who was killed in Marseilles by Front National militants. The novel raises questions about the responsibility of Mr Le Pen, Chairman of the Front National, for murders committed by militants, and about the effectiveness of strategies to combat the far right.   Following the publication of the novel, the Front National and Mr Le Pen brought defamation proceedings against Mr Lindon and Mr Otchakovsky-Laurens. On 11 October 1999 Paris Criminal Court convicted Mr Otchakovsky-Laurens of defamation and Mr Lindon of complicity in that offence. They were each fined the equivalent of 2,286.74 euros (EUR) and ordered to pay, jointly, EUR 3,811.23 in damages both to Mr Le Pen and the Front National. The court found four passages from the book to be defamatory: that Mr Le Pen led “a gang of killers” and that “people would have voted for Al Capone too”; that the Front National used violence against anyone who left the party; that behind each of Mr Le Pen’s assertions “loomed the spectre of the worst abominations of the history of mankind”; and, that he was a “vampire” who thrived on the “bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies” and that he was a liar who used defamation against his opponents to deflect accusations away from himself.   On 16 November 1999 Libération published a petition signed by 97 contemporary writers in its column “Rebonds” to protest about the conviction of Mr Lindon and Mr Otchakovsky-Laurens. The petition disputed whether the passages in question were in fact defamatory and reproduced them verbatim.   Mr July was subsequently summoned by the Front National and Mr Le Pen to appear before Paris Criminal Court, which, in a judgment of 7 September 2000, found him guilty of defamation and sentenced him to pay a fine equivalent to EUR 2,286.74 and EUR 3,811.23 in damages, for having reproduced the relevant passages from the novel.   In a judgment of 13 September 2000, on an appeal lodged by Mr Lindon and Mr Otchakovsky-Laurens, Paris Court of Appeal upheld their convictions in respect of three passages (1., 3. and 4. above). The court reasoned that the author had only sufficiently distanced himself from the views expressed in relation to passage no. 2; the other three passages had not been subjected to basic verification and were not sufficiently dispassionate. On 27 November 2001 a further appeal on points of law was dismissed by the Court of Cassation.   On 21 March 2001 Mr July’s conviction was upheld by Paris Court of Appeal, which found  that the authors of the petition had intended to show their support for Mr Lindon “by repeating with approval, out of defiance, all the passages that had been found defamatory by the court, and without even really calling into question the defamatory nature of the remarks”. The court went on “its line of argument is built around reference to precise facts. There was therefore an obligation to carry out a meaningful investigation before making particularly serious accusations such as incitement to commit murder, and to avoid offensive expressions”. On 3 April 2002 the Court of Cassation dismissed Mr July’s appeal on points of law.   2.  Procedure and composition of the Court   The applications Lindon & Otchakovsky-Laurens v. France and July v. France were lodged with the European Court of Human Rights on 23 May 2002 and 27 September 2002 respectively.   A public hearing took place in the Human Rights building, Strasbourg on 13 December 2006.   On 1 June 2006, under Article 30[2] of the Convention, the Chamber dealing with the cases relinquished jurisdiction in favour of the Grand Chamber.   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Christos Rozakis (Greek), President, Luzius Wildhaber (Swiss), Jean-Paul Costa (French), Nicolas Bratza (British), Boštjan M. Zupančič (Slovenian), Peer Lorenzen (Danish), Françoise Tulkens (Belgian) Loukis Loucaides (Cypriot), Josep Casadevall (Andorran), Mindia Ugrekhelidze (Georgian), Elisabeth Steiner (Austrian), Lech Garlicki (Polish), Khanlar Hajiyev (Azerbaijani), Renate Jaeger (German), Sverre Erik Jebens (Norwegian), David Thór Björgvinsson (Icelandic), Ján Šikuta (Slovak), judges, and also Michael O’Boyle, Deputy Registrar.   3.  Summary of the judgment[3]   Complaints   The applicants complained about their criminal convictions, relying on Article 10. Mr July also complained, under Article 6 § 1, that he was not heard by an independent court, as two of the three judges on the bench of the Paris Court of Appeal which ruled on his case had also sat on the bench which upheld the other applicants’ conviction.   Decision of the Court   Article 10   The Court found that applicants’ convictions had a clear, legal basis (sections 29 and 32 of the Freedom of the Press Act of 29 July 1881). French case law indicated that Section 29 of the Act covered fiction, where the honour or reputation of a clearly identified individual was concerned. The Court further found that their conviction pursued the legitimate aim of protecting the reputation or rights of others.   Concerning the writer and publisher The Court reiterated that those who created or distributed a work, for example of a literary nature, contributed to the exchange of ideas and opinions which was essential for a democratic society. Hence the obligation on the State concerned not to encroach unduly on their freedom of expression. However, it appeared that the penalty imposed on Mr Lindon and Mr Otchakovsky-Laurens concerned, not the arguments expounded in the novel, but the content of certain passages.   The Court recalled that novelists, other creators and anyone exercising freedom of expression had duties and responsibilities.   The domestic courts’ view on whether the passages in question were defamatory could not be criticised in view of the virulent content of those passages and the fact that they specifically named the Front National and its chairman.   It was also apparent that it was for the author’s benefit that the Court of Appeal sought to determine those remarks from which the author really distanced himself in his work. As a result, the court found that one of the four passages was not defamatory.   The Court of Appeal’s findings that the three passages had not been subjected to basic verification was in line with the European Court’s case-law. In order to assess the justification of a statement, a distinction needed to be made between statements of fact and value judgments. While the existence of facts could be demonstrated, the truth of value judgments was not susceptible of proof. Even where a statement amounted to a value judgment, however, there had to exist a sufficient factual basis to support it. Generally speaking there was no need to make that distinction when dealing with extracts from a novel. It nevertheless became fully pertinent when, as in the applicants’ case, the work in question was not one of pure fiction but introduced real characters or facts. It was all the more acceptable to require the applicants to show that the allegations contained in the passages from the novel that were found to be defamatory had a “sufficient factual basis” as they were not merely value judgments but also allegations of fact. Overall the Court considered that the Court of Appeal had adopted a measured approach and that it had made a reasonable assessment of the facts.   Having regard to the content of the offending passages, the Court also considered that the Court of Appeal’s finding that they were not sufficiently “dispassionate” was compatible with its case-law.   It was true that, while an individual taking part in a public debate on a matter of general concern was required not to overstep certain limits as regards respect for the reputation and rights of others, he or she was allowed to have recourse to a degree of exaggeration or even provocation, or to make somewhat immoderate statements.   It was also true that the limits of acceptable criticism were wider as regards a politician – or a political party – such as Mr Le Pen and the Front National – as such, than as regards a private individual. This was particularly true in the applicants’ case as Mr Le Pen, a leading politician, was known for the virulence of his speech and his extremist views, on account of which he had been convicted a number of times on charges of incitement to racial hatred, trivialising crimes against humanity, making allowances for atrocities, apologia for war crimes, proffering insults against public figures and making offensive remarks. As a result, he had exposed himself to harsh criticism and had therefore to display a particularly high degree of tolerance in that context.   The Court nevertheless considered that the Court of Appeal made a reasonable assessment of the facts in the applicants’ case in finding that to liken an individual, though he be a politician, to the leader of “a gang of killers”, to assert that a murder, even one committed by a fictional character, was “advocated” by him, and to describe him as a “vampire who thrives on the bitterness of his electorate, but sometimes also on their blood”, “oversteps the permissible limits in such matters”.   Considering that those involved in political struggles should show a minimum degree of moderation and propriety, the Court also noted that the passages were such as to stir up violence and hatred, going beyond what was tolerable in political debate, even in respect of a figure who occupied an extremist position in the political spectrum.   The Court therefore found that the “penalty” imposed on the applicants was based on “relevant and sufficient” reasons. The amount of the fine was also moderate. The Court concluded that the measures taken against the applicants were not disproportionate to the legitimate aim pursued and that the interference with the applicants’ right to freedom of expression was necessary in a democratic society.   Concerning the newspaper It appeared to the Court that Mr July was convicted because Libération had published a petition which reproduced extracts from the novel containing “particularly serious allegations” and offensive remarks, and whose signatories, repeating those allegations and remarks with approval, denied that the extracts were defamatory in spite of a finding to that effect against Mr Lindon and Mr Otchakovsky-Laurens.   The Court reiterated that protection of the right of journalists to impart information on issues of general interest required that they act in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism. Freedom of expression carried with it “duties and responsibilities”, which also applied to the media even with respect to matters of serious public concern. Moreover, those “duties and responsibilities” were liable to assume significance when there was a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special grounds were required before the media could be dispensed from their ordinary obligation to verify factual statements that were defamatory of private individuals.   Having regard to the moderate nature of the fine and the damages that Mr July was ordered to pay, to the content of the passages and to the potential impact on the public of the remarks found to be defamatory on account of their publication by a national daily newspaper with a large circulation, the Court found that the interference was proportionate to the aim pursued. The Court concluded that the domestic court could reasonably find that the interference with the exercise by the applicant of his right to freedom of expression was necessary in a democratic society, in order to protect the reputation and rights of Mr Le Pen and the Front National.   There had therefore been no violation of Article 10 concerning any of the applicants.     Article 6 § 1   In Mr July’s case, the fear of a lack of impartiality stemmed from the fact that two of the three judges on the bench which upheld his conviction for defamation had already ruled on the defamatory nature of three of the offending passages from the novel which were cited in the petition. The Court understood that that situation might have aroused doubts in Mr July’s mind as to the impartiality of the “tribunal” which heard his case, but considered that such doubts were not objectively justified.   In addition, the Court was unable to find the slightest indication that those judges might have felt personally targeted by the offending article. There was therefore no evidence to suggest that the two judges in question were influenced by personal prejudice when they passed judgment.   The Court noted that, even though they were connected, the facts in the two cases differed and the “accused” was not the same. It was moreover clear that the judgments delivered in the case of Mr Lindon and Mr Otchakovsky-Laurens did not contain any presupposition as to the guilt of Mr July.   In the judgment given on 21 March 2001 in Mr July’s case, the Paris Court of Appeal referred back, in respect of the defamatory nature of the passages in question, to the judgment that it had given on 13 September 2000 in the case of Mr Lindon and Mr Otchakovsky-Laurens. However, in the Court’s view that did not objectively justify Mr July’s fears as to a lack of impartiality on the part of the judges. The judgment of 13 September 2000 had found certain passages in the book to be defamatory. That aspect of the judgment was final and the Court of Appeal, or any other domestic court, was bound by it.   The question of the good or bad faith of Mr July remained open however and had not been prejudiced by the first judgment. There was no evidence to suggest that the judges were in any way bound by their assessment in the first case.   Concluding that Mr July’s doubts concerning the impartiality of the Court of Appeal were not objectively justified, the Court held, unanimously, that there had been no violation of Article 6 § 1.     Judge Loucaides expressed a concurring opinion and Judges Rozakis, Bratza, Tulkens and Šikuta a joint partly dissenting opinion, which are annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Grand Chamber judgments are final (Article 44 of the Convention). [2] Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects. [3] This summary by the Registry does not bind the Court.