Satirical insult of head of state should not be a criminal offence, rules Strasbourg
14 March 2013
Eon v France, no. 26118/10 14 March 2013- read judgment (in French only)
The applicant, Hervé Eon, is a French national, a socialist and anti-GM activist living Laval (France). The case concerned his conviction for insulting President Sarkozy.
During a visit by the President to the département of Mayenne on 28 August 2008, Mr Eon had waved a placard reading “Casse toi pov’con” (“Get lost, you sad prick”), a phrase uttered by the President himself several months previously when a farmer had refused to shake his hand at the International Agricultural Show. The utterance was widely disseminated in the media and on the internet, attaining the status of a slogan.
The applicant was immediately arrested by police and taken to the police station. He was prosecuted by the public prosecutor for insulting the president, an offence punishable under section 26 of the Act of 29 July 1881. The Tribunal de grande instance de Laval found the applicant guilty of the crime of insulting the president and sentenced him to a suspended fine of thirty euros. The court found that the fact that the president himself had ensured the fame of the phrase “Casse toi pov’con” did not minimise the offensive nature of the insult, and it did not mean it was in the public domain and therefore devoid of any offensive implications. In other words, the defendant could not argue that he’d said it in good faith. The Court of Appeal rejected his appeal, noting that the applicant did not propose to take advantage of the exemption from penalty by apologising. When he sought to appeal to the Cour du Cassation he was denied legal aid on the basis of the weakness of his grounds of appeal.
M. Eon complained that his conviction and the authorities’ decision to withhold legal aid for his appeal breached his rights under of Article 10 (freedom of expression) and Article 6 (right of access to court). He had not raised these Convention arguments in the domestic courts.
The legal background
In the Code Civile, the penalties for insulting the head of state or attacking the honour and reputation of public authorities and individuals invested with public authority, are more severe than the sanctions for defaming individuals, that is if the prosecution can establish malice (unlike defamation, malice is not presumed). The Government explained that the offense of insulting, unlike defamation and insult, is to protect the public more than the man. It is described by the law of “crime against the State” and thus differs from the crime against persons, which explains that the prosecution can only be initiated by the Public Prosecutor, and not by the victim of the offence.
The government sought to argue that M. Eon’s case should be rejected for non-exhaustion of local remedies since he did not raise Article 10 in the domestic proceedings. The Court rejected this submission, observing that the grievances he did air in the local courts related to Article 10. In these circumstances, it considered that freedom of expression was at stake, and that before the first instance court and the court of appeal the applicant relied at least in substance on a grievance that derives from Article 10 of the Convention (see, mutatis mutandis, Fressoz and Roir v France [GC], no 29183/95, § 39, ECHR 1999-I).
The government also submitted that the Court should declare the application inadmissible under Article 34 in that the applicant had not suffered a significant disadvantage, since he had only been fined 30 euros and that had been suspended. The Court did not accept this. Whilst it acknowledged that the Government’s case that the financial stakes were modest,
the assessment of the gravity of a violation must also be made taking into account both the subjective perception of the applicant and the underlying objective issues in the case [para 34]
The subjective importance of the question was clearly obvious to the applicant, who continued the proceedings until the bitter end, even after the refusal of legal aid. As to the question underlying the case, the Court noted that it had become widely publicised and that it addressed the issue of maintaining the offence of insulting the head of state, something that was regularly raised in Parliament.
The applicant recalled that the offence of insulting a foreign head of state under section 36 of the 1881 Act had been repealed following the delivery of the Strasbourg Court’s own judgment in Colombani et al. France, No. 51279/99, ECHR 2002-V). In that judgment, the Court observed
…that, contrary to the common law of defamation, this offence does not allow applicants to assert the defence of justification, that is to say prove the veracity of their claims to be exempted from criminal liability. The absence of this defence means that this is an excessive measure to protect the reputation and rights of a person, even when it comes to a head of state or government.
In line with this reasoning, the applicant invited the Court to conclude that the offense of insulting the President of the Republic was contrary to the Convention for the same reason: it was impossible to rely on the exceptio veritatis.
The government for its part maintained that the offence was prescribed by law and was necessary for the maintenance of public order according to Article 10(2). It considered that the protection granted to the President of the Republic was proportionate in that it met a pressing social need, and that there should be a wide margin of appreciation available to states when the remark in question was not political expression or made in the context of a debate on issues of general interest.
The Court upheld the application.
Reasoning behind the judgment
The case turned on the proportionality of the measure complained of. The Court was quite prepared to accept that a sign bearing the phrase “Get lost, you sad prick” wielded by the applicant during a presidential motorcade on the street would be literally offensive towards the President the Republic. Nor did it go along with the applicant’s contention that this complaint should be examined in the light of the Colombani, since that concerned the very different matter of remarks by the press. It was hard to see how the applicant in this case could adduce the veracity of his claim in any event, since it was not a claim but a pure insult.
On the other hand the intention behind the statement, whilst not directly political, could be more correctly described as satirical, since the applicant had picked up and run with a phrase uttered by the President and widely disseminated in previous months. The Court has repeatedly emphasised that satire – including satirical impertinence –
is a form of artistic expression and social commentary, by exaggeration and distortion of reality which naturally aims to provoke and agitate.That is is why it is necessary to examine with special attention any interference with the right of an artist – or anyone else – to express themselves through it (Künstler Vereinigung Bildender v. Austria, no. 8354/01, § 33, January 25, 2007, Alves da Silva v. Portugal, no. 41665/07, § 27, 20 October 2009, …Tuşalp v. Turkey, nos. 32131/08 and 41617/08, § 48, 21 February 2012). [para 60]
The Court therefore concluded that the criminalisation of behaviour such as this offence was likely to have a deterrent effect on the satirical intervention which could in turn have a severe effect on free debate questions of general interest, without which there is no democracy. The imposition of a criminal penalty by the authorities in this case was therefore disproportionate to the aim pursued and was not necessary in a democratic society.
As for Mr Eon’s claim under Article 6, the Court referred to its ruling in Del Sol v France no. 46800/99, pointing out that there is no obligation under the Convention to make legal aid available for all disputes (contestations). The reason relied on by the Legal Aid Office and the President of the Court of Cassation for refusing the applicant’s application for legal aid – namely the lack of an arguable ground of appeal on points of law – was expressly set out in French legislation and was undoubtedly intended to meet the legitimate concern that public money should only be made available to applicants for legal aid whose appeals to the Court of Cassation have a reasonable prospect of success. This part of the application was therefore rejected as manifestly ill-founded under Article 35(3) of the Convention.
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If it was ok for Sarkozy to say it to a farmer ,then it should of course been ok for anyone to repeat his “wise words” but French politics rarely works that way and it was as well that the European Court took a different view !
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