CASE OF EKIN ASSOCIATION v. FRANCE
Violation of Art. 10;Not necessary to examine Art. 14+10;Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
Nicolas Bratza
12. In 1987 the applicant association published a book entitled Euskadi at war. There were four versions – Basque, English, Spanish and French – and the book was distributed in numerous countries, including France and Spain. According to the applicant association, this was a collective work containing contributions from a number of academics with specialist knowledge of the Basque Country and giving an account of the historical, cultural, linguistic and socio-political aspects of the Basque cause. It ended with a political article entitled “Euskadi at war, a promise of peace” by the Basque national liberation movement. 13. The book was published in the second quarter of 1987. On 29 April 1988 a ministerial order was issued by the French Ministry of the Interior under section 14 of the Law of 29 July 1881, as amended by the decree of 6 May 1939, banning the circulation, distribution and sale of the book in France in any of its four versions on the ground that “the circulation in France of this book, which promotes separatism and vindicates recourse to violence, is likely to constitute a threat to public order”. On 6 May 1988, pursuant to the aforementioned order, the département director of the airport and border police refused to allow over two thousand copies of the book to be brought into France. 14. On 1 June 1988 the applicant association lodged an administrative appeal against the ban. When this was implicitly rejected, it appealed to the Pau Administrative Court on 29 November 1988. 15. The Administrative Court held that it did not have jurisdiction and so referred the case to the Conseil d’Etat. By a decision of 9 January 1991 the President of the Judicial Division of the Conseil d’Etat remitted the case to the Pau Administrative Court. 16. In a judgment delivered on 1 June 1993 after a public hearing in the presence of both parties, the Pau Administrative Court rejected the applicant association’s appeal on the following grounds: “It has been established that the book at issue entitled Euskadi at war was printed in Spain, that four of its five chapters were written by authors of Spanish nationality and that the documentation used for the preparation of the publication was mainly of Spanish origin. Therefore, and notwithstanding the fact that the book was published by the applicant association, which is based in Bayonne, the offending book must be regarded as of foreign origin within the meaning of the aforementioned provisions. Accordingly, the Minister of the Interior was legally entitled to prohibit the book’s circulation, distribution and sale. In taking the view that the book at issue could pose a threat to public order since it argued, particularly in Chapter 4, that the violence of the Spanish State justified the ETA terrorist organisation’s ‘proportionate counter-offensive’, the Minister of the Interior did not make any obvious error in assessing the evidence. Under Article 10 of the European Convention on Human Rights, ‘[e]veryone has the right to freedom ...’; it is the task of the administrative courts to assess whether any restriction of the freedom of expression guaranteed by the above-mentioned Article 10 is proportionate to the legitimate aim being pursued and to assess whether the ban on a publication of foreign origin is in keeping with that aim. In the instant case the evidence does not show that the general prohibition of the book at issue was disproportionate to the public-order objectives being pursued ...” 17. The applicant association lodged an appeal against this judgment with the Conseil d’Etat on 20 August 1993. In its further observations, it asked the Conseil d’Etat to find that section 14 of the Law of 29 July 1881, as amended, was incompatible with Articles 10 and 14 of the Convention taken together. 18. On 9 July 1997 the Conseil d’Etat ruled that section 14 of the Law of 1881, as amended, was not incompatible with Articles 10 and 14 of the Convention on the following grounds: “Under section 14 of the Law of 29 July 1881, as amended by the decree of 6 May 1939, ‘the circulation, distribution or sale in France of newspapers or texts written in a foreign language, whether periodicals or not, may be prohibited by a decision of the Minister of the Interior. Newspapers and texts of foreign origin written in French and printed abroad or in France may also be prohibited’. In the absence of any statutory provision establishing the conditions circumscribing the legality of decisions taken on the basis of this provision, any restrictions of the Minister’s power derive from the need to reconcile the general interests for which he is responsible with the respect due to public freedoms, particularly freedom of the press. When an appeal against such a prohibition order is lodged with an administrative court, it is duty-bound to assess whether the banned publication poses such a threat to these general interests that it warrants an infringement of public freedoms. Contrary to the applicant association’s assertions, the power thus exercised by the Minister of the Interior, under the supervision of the courts, is not incompatible with the combined provisions of Articles 10 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms …” 19. On the other hand, the Conseil d’Etat quashed the judgment and the ministerial order of 29 April 1988 on the following grounds: “By the impugned order, the Minister of the Interior prohibited the circulation, distribution and sale of the collective work Euskadi at war, which must be viewed as a written text of foreign origin within the meaning of the aforementioned section 14 of the Law of 29 July 1881. Having regard to the interests that the Minister is responsible for protecting, in particular public safety and public order, the Court finds that the content of this publication does not provide sufficient legal justification for the serious infringement of press freedom embodied in the impugned decision. It follows from the above considerations that the Association Ekin has good grounds for maintaining that the Pau Administrative Court was wrong to reject, by means of the impugned judgment, the association’s application to set aside the decision of 29 April 1988, taken on the basis of the aforementioned section 14 of the Law of 29 July 1881, by which the Minister of the Interior prohibited the circulation, distribution, and sale in France of the book entitled Euskadi at war, published by the association ...” 20. In a registered letter with recorded delivery received by the Ministry of the Interior on 2 December 1997, the applicant association presented the Minister with a claim for compensation for the pecuniary and non-pecuniary damage caused by the application of the unlawful order of 29 April 1988 for more than nine years. According to the applicant association, the implementation of this order amounted to tortious conduct on the part of the authority. It estimated the overall losses it had sustained at 831,000 French francs (FRF), including FRF 481,000 resulting from the financial loss deriving directly from the prohibition of sales of the book throughout France. To date it has not had any reply from the Minister of the Interior. Under the rules of French administrative proceedings, this silence counts as a refusal of the applicant association’s claim. 21. The general rules governing the freedom of the press guaranteed by Article 11 of the Declaration of the Rights of Man and the Citizen, which has constitutional status, are mainly based on the Law of 29 July 1881, as amended, which established a “repressive” system, so called because any offences that may have been committed are punished and any damage caused is made good ex post facto. This is the principle laid down by the Law of 29 July 1881, as amended, when it states in section 1 that “anyone may print or sell books and other publications” and in section 5 that “any newspaper or periodical may be published without prior authorisation or the payment of any security ...”. 22. The French rules governing publications do nonetheless include forms of prior intervention which can lead to bans or seizures but are always subject to respect for the principle that they must be proportionate to the facts which prompt them. Such measures are justified only by the need to protect public order against any unrest caused, or liable to be caused, by the distribution or sale of a publication. The Conseil d’Etat ruled on 25 July 1930 (Abbé de Kervenoael, D.P. 1930, 497) that “the provisions of sections 18 et seq. of the Law of 29 July 1881 do not prevent mayors from taking measures under their general policing powers for the preservation of order and calm” and that “it is therefore their duty to prohibit the distribution on the public highway of written documents likely to cause unrest”. Nonetheless, as was established in a judgment of the Jurisdiction Disputes Court of 8 April 1935 (L’action française, D.P. 1935, 3, 25, conclusions by Josse, note by Waline), these means may only be deployed if there is no other way of preserving or restoring public order. They must also be proportionate to the disorder and limited in their duration and geographical scope to what is strictly necessary. Under section 51 of the Law, an investigating judge may order the seizure “of written or printed documents, placards or notices”, under the conditions laid down in the Code of Criminal Procedure and “in the cases contemplated in sections 24 (§§ 1 and 3), 25, 36 and 37 of the Law”. These cases are incitement to or vindication of crimes (section 24), inciting military personnel to disobey orders (section 25), and insulting heads of State and government and foreign diplomats (sections 36 and 37). Section 61 of the Law states: “If there is a conviction, the court may, in the cases contemplated in sections 24 (§§ 1 and 3), 25, 36 and 37, order the confiscation of any written or printed documents, placards or notices seized and, at any event, order the seizure and suppression or destruction of any copies put on sale, distributed or displayed in public. Suppression or destruction may however apply only to certain parts of the seized copies.” 23. In addition, section 62 of the Law of 29 July 1881, as amended, adds that, in cases of sentences passed under sections 23, 24 (§§ 1 and 2), or 25 –penalising incitement to or vindication of crimes – and 27 – penalising the offence of spreading false news – “the suspension of the newspaper or periodical may be ordered in the same judgment for a period not exceeding three months”. 24. Administrative review has also been introduced in respect of certain specific types of publication. The main categories concerned are publications intended for young people or which may pose a threat to young people and publications which are of foreign origin or drafted in a foreign language. This is chiefly the result of implementing the Law of 16 July 1949, which established the specific rules governing “publications intended for young people” which may be applied to all publications posing a threat to this type of reader. These rules, which stem from a desire to protect young people, are in fact twofold in nature since they relate both to publications “mainly intended for children and adolescents” and to publications “of all types that may pose a threat to young people”. A system of administrative supervision also operates pursuant to section 14 of the Law of 29 July 1881, as amended by the decree of 6 May 1939, which reads as follows: “The circulation, distribution or sale in France of newspapers or texts written in a foreign language, whether periodicals or not, may be prohibited by a decision of the Minister of the Interior. Newspapers and texts of foreign origin written in French and printed abroad or in France may also be prohibited. When performed knowingly, the sale, distribution or reproduction of banned newspapers or written texts shall be punishable by a one-year prison sentence and a fine of 30,000 francs. The same applies if the publication of a banned newspaper or written text is resumed under a different title. In this case, however, the fine shall be increased to 60,000 francs. All copies and reproductions of banned newspapers and written texts and of any which resume publication under a different title shall be liable to administrative seizure.” 25. Case-law has fleshed out the conditions for the application of this rule. It has both defined the concept of “foreign origin” and established the grounds on which publications can be banned, wherever they are not laid down by statute. 26. The test used by the administrative courts to determine whether a publication is of foreign origin is made up of a number of strands woven together into the theory of “convergent evidence”. According to the submissions of Mr Genevois, the Government Commissioner in the case of the Minister of the Interior v. S.A. Librairie François Maspero (Conseil d’Etat (“CE”), Ass., 30 June 1980, A.J. 1980, p. 242), the Conseil d’Etat takes account of both material and intellectual factors: “The material factors are those relating to the conditions in which the text was printed. Even if it was printed abroad, a book written in French by a French author can be considered to be of foreign origin only if it is established that foreign assistance made possible or helped to make possible its production or publication ... The intellectual factors relate to the inspiration and the content of the book. It was on the basis of such factors that [the Conseil d’Etat] held that a publication which presented itself either as the French edition of a foreign publication or as the French edition of the texts and articles contained in that publication should be regarded as being of foreign origin within the meaning of section 14 even though the publishers were French (CE, Ass., 2 November 1973, S.A. Librairie François Maspero, p. 611).” 27. The Conseil d’Etat has regarded all the following factors as indications of a publication’s foreign origin: the author’s nationality and place of residence (CE, 18 July 1973, Monus, p. 527), the fact that the publication was a translation (CE, 19 February 1958, Sté les Editions de la terre du feu, p. 114), the nationality of the publisher and the country in which the text was published (CE, Ass., 2 November 1973, cited above), the country in which it was published or printed (CE, Sect., 9 July 1982, Alata, p. 281), the fact that foreign assistance was provided (CE, Sect., 4 June 1954, Barbier, p. 345), or foreign documentation and inspiration. 28. None of these factors suffices alone. For instance the fact that the author is a foreign national is not enough in itself for section 14 to be applicable. The status of the publication is decided on by considering all of these indications taken together. 29. Although the law did not indicate the grounds on which it should be applied, the case-law of the Conseil d’Etat has established the rule that section 14 can be applied only for certain reasons relating to the public interest and public order. Initially, the administrative courts did not carry out any review of the assessment of the facts warranting the measure nor, a fortiori, did they consider the proportionality of the measure. They checked whether the reasons given by the authorities to justify the use of section 14 were legitimate by ensuring that they duly came within the Law’s scope (see, for example, CE, 4 June 1954, Joudoux and Riaux, A.J. 1954, p. 360, and CE, 17 December 1958, Société Olympia Press, D.J., p. 175, concl. Braibant). 30. The main grounds which the Conseil d’Etat has considered to be “among those which can justify in law a measure taken under” section 14 of the Law of 1881, as amended, are as follows: the protection of public order (see, for example, CE, Ass., 2 November 1973, cited above), the immoral nature of the publication concerned (see, for example, CE, 17 December 1958, cited above), and the need to combat racist ideology, in particular the revival of national-socialist ideology (CE, 17 April 1985, Sté les Editions des Archers, p. 100). 31. Applications for judicial review of decisions taken by the Minister of the Interior under section 14 of the Law of 1881 may be made to the administrative courts and subsequent appeals lie to the administrative courts of appeal set up by the Law of 31 December 1987. The Minister’s decisions can also be quashed by the Conseil d’Etat which acted as the appellate court in such cases before the 1987 reform. On the other hand, stays of execution of bans on publications are not granted by the administrative courts since they consider that the damage caused by the application of such bans is not irreparable and accordingly is not of a nature to justify a stay of execution (CE, 28 April 1978, Sieur Alata and Société des éditions du Seuil, ADJA, July-August 1978, p. 398). 32. The administrative courts begin by carrying out a review of the “outward legality” of the measures taken under section 14, in other words they consider whether the authorities have respected the rules of jurisdiction, procedure and form. In so doing they pay particular attention to the grounds for the measure, which must comply with the Law of 11 July 1979, and verify that the rights of the defence, as set out in section 8 of the decree of 28 November 1983, have been respected. This decree, which applies to the authors of publications covered by section 14 of the Law of 1881, as amended, and to those whose writings are covered by the law on publications intended for, or posing a threat to, young people, provides that, “save in exceptional or emergency situations and subject to the requirements of public order”, such decisions “may legally be taken only once the party concerned has been given the opportunity to submit written observations. Anyone concerned ... must be heard, if he or she so requests, by the official responsible for the case or, failing that, a person authorised to record his or her oral observations. Such persons may be assisted or represented by a lawyer of their choice”. 33. Secondly, the administrative courts also review the “internal legality” of the measures concerned, the scope of which changed on promulgation of the legislative decree of 6 May 1939. The Conseil d’Etat has always made sure that the authorities have had good grounds to describe the publication as being “of foreign origin”, that they have made no legal error in the application of the law, that they have not based themselves on factually inaccurate evidence and that they have not abused their powers. However, in their earlier decisions, the administrative courts did not review the assessment of the threat posed to public order or the public interest by the publication at issue. 34. A major development in the case-law on this matter has occurred since. 35. Initially, in its Judicial Assembly judgment of 2 November 1973 (S.A. Librairie François Maspero, cited above), the Conseil d’Etat decided to broaden its review of the legality of ministerial decisions taken under section 14 of the Law by extending it to cover manifest errors of judgment, that is by checking that a serious error of judgment had not led to a manifest disproportion with the facts that had prompted them. 36. Then, when the applicant association brought the instant case before it, the Conseil d’Etat decided to depart from its previous case-law and broaden the scope of its review. The effect of the Conseil d’Etat’s ruling of 9 July 1997 is that the administrative courts must conduct a “full” review of the grounds for the decision. In its judgment the Conseil d’Etat held that it is the administrative courts’ duty to “consider whether the banned publication is likely to cause such damage [to the general interests for which the Minister is responsible] as to warrant an infringement of public freedoms”.