Application Number 20985/05
European Court of Human Rights
[Judgment delivered in French]
The applicants were convicted of publicly defending war crimes due to a book their company distributed in which the author, a former member of the special services, described torture and summary executions carried out during the war in Algeria.
Theme(s): Violence (apology)
Date: 15 January 2009
Description of applicant(s): Chairman and managing director of third applicant (Editions Plon)
Brief description of facts: In May 2001, the applicant company published a book Special Services: Algeria 1955-1957, in which its author, a former member of the special services, described torture and summary executions carried out during the war in Algeria. The inside cover described the author as “a Free French veteran” who had been “dispatched by General de Gaulle on the most delicate secret operations.” It went on to state that “it was in Algeria that Paul Aussaresses (the author) … was called on to carry out his most painful mission” and that “while his name [was] still unknown to the public at large, this former Free French parachutist … was already regarded as a living legend within the tightly closed circles of the special services.” In June 2001 the Paris public prosecutor summoned Olivier Orban, Xavier de Bartillat and General Aussaresses to appear before the Paris Criminal Court to answer charges of publicly defending war crimes in the case of Orban (chairman of company) and aiding and abetting that offence in the cases of Bartillat (managing director of company).
(Alleged) target(s) of speech: –
The Court’s assessment of the impugned speech: The Court found that France had a narrow margin of appreciation when it came to the press imparting information and ideas on matters of public interest. It found that the book was an eye witness account. The fact that the author had not expressed regret for the acts but instead claimed to have been acting in accordance with the mission entrusted to him, was central to the witness account. As such, the French court’s criticism of the applicants in their capacity as publishers, for not distancing themselves from his account, was unjustified. It reiterated that Article 10 extends to ideas that shock, offend or disturb.
Important paragraph(s) from the judgment:
Para.49: By publishing this work, the applicants have simply delivered this testimony to the public…However, the publication of a testimony of this type – which, according to the publisher, “contributes (…) to understanding the terrible complexity of an era which continues to inhabit our present” – was undoubtedly part of a debate of general interest of singular importance for collective memory… it confirms one of the theses present and defended by the latter, namely that not only did such practices take place, but that they did so with the approval of the French authorities. According to the Court, the fact that the author does not take a critical distance from these atrocious acts and that, instead of expressing regrets, he indicates that he acted within the framework of the mission entrusted to him… is an integral part of this testimony.
ECHR Article: Article 10
Use of ‘hate speech’ by the Court in its assessment? No
Note! Translation from French to English is our own