CASE OF LEHIDEUX AND ISORNI v. FRANCE
Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
C. Russo;John Freeland;R. Pekkanen
9. Mr Lehideux, the first applicant, who was born in 1904 and died on 21 June 1998 (see paragraph 8 above), was formerly an administrator and later a director of several companies – including Renault France – and lived in Paris. From September 1940 to April 1942 he was Minister for Industrial Production in the Government of Marshal Pétain and, from 1959 to 1964, a member of the Economic and Social Committee. He was the President of the Association for the Defence of the Memory of Marshal Pétain. The second applicant, Mr Isorni, who was born in 1911 and died on 8 May 1995 (see paragraph 2 above), was formerly a lawyer practising in Paris. As First Secretary of the Conference of Pupil Advocates of the Paris Bar, he was officially appointed to assist the President of the Bar Association in defending Marshal Pétain at his trial before the High Court of Justice. On 15 August 1945 the High Court of Justice sentenced Philippe Pétain to death and forfeiture of his civic rights for collusion with Germany with a view to furthering the designs of the enemy. 10. On 13 July 1984 the daily newspaper Le Monde published a one-page advertisement bearing the title “People of France, you have short memories” in large print, beneath which appeared in small italics, “Philippe Pétain, 17 June 1941”. The text ended with an invitation to readers to write to the Association for the Defence of the Memory of Marshal Pétain and the National Pétain-Verdun Association. 11. The text, which was divided into several sections each beginning with the words “People of France, you have short memories if you have forgotten…” in large capitals, recapitulated, in a series of assertions, the main stages of Philippe Pétain’s life as a public figure from 1916 to 1945, presenting his actions, first as a soldier and later as French Head of State, in a positive light. In respect of the 1940–45 period, the text contained the following passage: “PEOPLE OF FRANCE, YOU HAVE SHORT MEMORIES – IF YOU HAVE FORGOTTEN... – That in 1940 the civil and military authorities had led France to disaster. Those responsible begged him to come to its assistance. By his call to the nation of 17 June 1940 he secured an armistice and prevented the enemy from camping on the shores of the Mediterranean, thereby saving the Allies. Power was then legally conferred on him by the Parliamentary Assemblies, in which the Popular Front had a majority. The grateful French people rightly saw him as their saviour. There were ‘forty million Pétainists’ (Henri Amouroux). How many no longer remember this and how many have disavowed it? – That in the thick of difficulties which no French Head of State had ever known, Nazi atrocities and persecutions, he protected them against German omnipotence and barbarism, thus ensuring that two million prisoners of war were saved. – That he provided daily bread, re-established social justice, defended private schools and protected a pillaged economy. – That, through his supremely skilful policy, he managed to send a personal representative to London on the very same day that he went to Montoire, thereby allowing France, in defeat, to maintain its position between the contradictory demands of the Germans and the Allies and, through his secret agreements with America, to prepare and contribute to its liberation, for which he had formed the army of Africa. – That he preserved for France virtually every part of what people then still dared to call the French Empire. – That he was threatened by Hitler and Ribbentrop for resisting their will, and that on 20 August 1944 German troops carried him off to Germany. PEOPLE OF FRANCE, YOU HAVE SHORT MEMORIES – IF YOU HAVE FORGOTTEN... – That, while he was a prisoner of the enemy, Philippe Pétain was prosecuted on the orders of Charles de Gaulle for betraying his country, whereas he had done all he could to save it. – IF YOU HAVE FORGOTTEN... – That, having escaped from Germany, he returned to France, however great the personal risk to himself, to defend himself against that monstrous accusation and to try to protect, by his presence, those who had obeyed his orders. PEOPLE OF FRANCE, YOU HAVE SHORT MEMORIES – IF YOU HAVE FORGOTTEN... – That the prosecution, with the collusion of persons in the highest authority, used a forgery, as in the Dreyfus case, to secure his conviction and that at ninety years of age he was condemned, in haste, to death...” 12. On 10 October 1984 the National Association of Former Members of the Resistance filed a criminal complaint, together with an application to join the proceedings as a civil party, against a Mr L., the publication manager of Le Monde, for publicly defending the crimes of collaboration with the enemy, and against Mr Lehideux as President of the Association for the Defence of the Memory of Marshal Pétain, Mr Isorni as the author of the text complained of and a Mr M., as President of the National Pétain-Verdun Association, for aiding and abetting a public defence of the crimes of collaboration with the enemy. The civil party argued that the text was an apologia which contravened the criminal law since it tended to justify the policy of Marshal Pétain, who had been found guilty by the High Court of Justice on 15 August 1945 (see paragraph 9 above). 13. The applicants denied that their advertisement constituted a public defence of the crimes of collaboration with the enemy, but acknowledged that the spirit of the text was consistent with their aim of having the judgment of the High Court of Justice overturned and rehabilitating Marshal Pétain. 14. On 29 May 1985 the public prosecutor filed his final submissions recommending that the charges be dropped on the ground that the offence had not been made out. He considered that “the political and historical light” in which the applicants had portrayed Philippe Pétain’s policy during the period 1940 to 1944 was “radically different from the approach adopted by the High Court of Justice”: “far from glorifying the policy of collaboration, the defendants ... [gave] credit to Marshal Pétain – the fact that their historical perception [might] appear incorrect, misguided or partisan being of little consequence – for his endeavours and actions to protect France and its people and his contribution to the country’s liberation...”. He added that, although their aim had been to enhance Philippe Pétain’s image and praise his conduct during the Second World War, this positive assessment could be construed as a public defence of his actions “only by arbitrarily separating the image thus embellished from its supporting text and its link with the purely extrinsic information which, for the most part, was contained in the documents on the High Court’s file”. He concluded that “it might appear strange to commit for trial before the Criminal Court the authors and producers of a text which glorifies an individual, not for the crimes of which he was convicted, but for the beneficial actions which he is deemed to have performed for the good of France, its people and, secretly, the Allies”. 15. The investigating judge did not follow the public prosecutor’s submissions. In an order of 4 June 1985, he committed Mr L., the applicants and Mr M. for trial before the Criminal Court on charges, against the first defendant as principal and the others as accomplices, of making a public defence of the crimes of collaboration with the enemy, defined in section 24(3) of the Freedom of the Press Act of 29 July 1881. The investigating judge observed: “a public defence means a speech or text which tends to defend or vindicate a doctrine or an action”. He noted that the applicants had presented Marshal Pétain’s policy during the period 1940 to 1944 in a favourable light, crediting him with endeavours and actions to protect France and its people, whereas the same events had been the subject of lengthy, detailed reasoning in the judgment of the High Court of Justice convicting Marshal Pétain. He therefore considered that the part of the published text referring to the 1940–45 period incorporated, developed and glorified the grounds of defence submitted by Pétain at his trial before the High Court of Justice and therefore amounted to a “justification of the actions and policies of Marshal Pétain, convicted under Articles 75 and 87 of the Criminal Code” then in force. 16. On 27 June 1986 the Paris Criminal Court, the proceedings before which had been joined by the Resistance Action Committee and the National Federation of Deported and Interned Members of the Resistance and Patriots, as civil parties, acquitted the defendants and ruled that it lacked jurisdiction to deal with the civil parties’ application. The court stated that its task was “not to take sides in the historical controversy which, for more than forty years, has pitted the Resistance associations against Philippe Pétain’s supporters”, but to determine whether the offence had been made out in the instant case. In that connection, the court specified that, “according to the civil parties’ and the public prosecutor’s own submissions, the defendants [were] being prosecuted for their opinions...” and that “no restrictions [could] be imposed on freedom of expression other than those derived from statute, strictly interpreted...”. The court held that only the part of the text referring to the 1940–45 period could be construed as a public defence of the crimes of collaboration with the enemy. It noted that this part of the text was clearly a eulogy of Philippe Pétain, an appeal in his defence designed to create a shift in public opinion favourable to the reopening of his case. It considered, however, that the offence had not been made out, for the following reasons: the text contained “no attempt to justify collaboration with Nazi Germany”, but stated that Marshal Pétain’s aim had been to “facilitate the Allies’ victory”; Marshal Pétain’s collaboration with Nazi Germany was neither acknowledged nor presented in a favourable light; the fact that the judgment of the High Court of Justice constituted res judicata did not in any way prevent the defenders of Marshal Pétain’s memory from criticising it; the text was part of a campaign in which the second applicant had been engaged since 1945 to have the judgment of the High Court of Justice overturned, an objective which was “perfectly legal”. The court emphasised, “for the avoidance of any doubt”, that its judgment “should not be deemed to favour one of the arguments put forward in the historical controversy”. 17. The National Association of Former Members of the Resistance and the Resistance Action Committee appealed. 18. In a judgment of 8 July 1987 the Paris Court of Appeal held, firstly, that the combined effect of Article 2 § 5 of the Code of Criminal Procedure and the Freedom of the Press Act of 29 July 1881 was that the civil parties did not have standing to trigger a public prosecution and, secondly, that the prosecutor’s submissions on their complaint did not satisfy the formal requirements laid down on pain of nullity in the same Act. The court therefore declared the prosecution and subsequent proceedings null and void. 19. The National Association of Former Members of the Resistance and the Resistance Action Committee appealed on points of law against the above judgment. 20. In a judgment of 20 December 1988 the Court of Cassation (Criminal Division) held that the Paris Court of Appeal had erred in law. Accordingly, it quashed the judgment of 8 July 1987 in its entirety and remitted the case to the same Court of Appeal with a differently constituted bench. 21. On 26 January 1990 the Paris Court of Appeal declared the two civil party applications admissible, set aside the acquittals and awarded the civil parties damages of one franc. It also ordered the publication of excerpts from the judgment in Le Monde. In its judgment it held that the three constituent elements of the offence of making a public defence of the crimes of collaboration had been made out. It found, firstly, that the public element had been made out owing to the fact that the text in question had been published in Le Monde. It went on to say that the text contained an “apologia” for the crimes of collaboration, and that the mental element had been made out, for the following reasons: “The glorification of Pétain by the authors of this manifesto is conveyed by the celebration of what they seek to portray as great deeds; thus, equal prominence is given, for example, to the victory at Verdun and the defeat at Abd-el-Krim, attributed to Pétain like the securing of the armistice in 1940 and ‘his policy’, described as ‘supremely skilful’: ‘He managed to send a personal representative to London on the very same day that he went to Montoire, thereby allowing France, in defeat, to maintain its position between the contradictory demands of the Germans and the Allies and, through his secret agreements with America, to prepare and contribute to its liberation, for which he had formed the army of Africa’. Praise of the Montoire policy is thus magnified by reference to its supposed results. This is indeed an unreserved eulogy of a policy which is none other than that of collaboration. The significance of the meeting between Pétain and Hitler at Montoire on 24 October 1940 to which the authors of the advertisement refer were specified as follows in a radio broadcast by Pétain of 30 October 1940: ‘It is in honour and in order to maintain French unity, a ten-centuries-old unity, within the framework of constructive action for a new European order that I today embark upon the path of collaboration.’ The order referred to here was none other than the Hitlerian order based on racism defined in Mein Kampf, to which Pétain had just officially subscribed in advance by signing, on 3 October 1940, the so-called Act relating to aliens of Jewish race, who were later to be interned in camps set up in France for that purpose, in order to facilitate their conveyance to the Nazi concentration camps which were their intended destination. Through the absence from the text of any criticism of these artfully concealed facts or even any attempt to distance its authors from them, this manifesto does indeed, therefore, implicitly but necessarily, contain an apologia for the crimes of collaboration committed, sometimes with the active participation and sometimes with the tacit consent of the Vichy Government, that is of Pétain and his zealots, in the very ‘atrocities’ and ‘Nazi persecutions’ to which the text refers. The court is forced to the above conclusion without taking sides in the historical controversy between those who think that Pétain was really playing a double game supposedly beneficial to the French and those who place reliance only on Pétain’s avowed policies and publicly announced official decisions, regardless of the excuses that he was able to put forward or that his supporters now seek to cloak him in. Accordingly, this court finds that the advertisement in issue did contain the apologetic element of the offence charged. In addition, for the offence to be made out, the mental element must be established. The accused, headed by Jacques Isorni, the author of the manifesto, are seeking revision of the judgment given by the High Court of Justice on 14 August 1945, which sentenced Pétain to death, forfeiture of his civic rights and confiscation of his possessions for collusion with Germany, a power at war with France, with a view to furthering the enemy’s designs, this conduct constituting offences defined by and punishable under Articles 75 and 87 of the Criminal Code. The accused, with the exception of [Mr L.], all claim responsibility for the text in issue and maintain that their object in publishing it was to create a shift in public opinion which, in their view, would increase support for a decision to reopen the case. This goal, pursued unremittingly by Jacques Isorni in particular, Pétain’s former defence counsel before the High Court, who seeks to have a new judicial decision substituted for the High Court’s judgment, is considered by that lawyer to be a sacred duty of the defence. However legitimate on his part and the part of those who expressed their support for his action their intention to have the case reopened may have been, it did not justify the use of unlawful means to further that aim, since they knew that by putting forward an unqualified and unrestricted eulogy of the policy of collaboration they were ipso facto justifying the crimes committed in furtherance of that policy, and therefore cannot have acted in good faith.” 22. The applicants, Mr M. and Mr L. appealed on points of law against the above judgment. In their statement of the grounds of appeal they relied on Article 10 of the Convention and complained that they had been convicted for their opinions. Their aim had been to defend what they considered to be just in the action of a convicted person, without glorifying war crimes or the crimes of collaboration of which he had been convicted in the judgment which they were seeking to have overturned. They asserted that the Court of Appeal had found them guilty of making an “implicit apologia”, constituted more by what they had not said than by the content of the text itself, holding that the manifesto in issue “implicitly but necessarily” contained an apologia for the crimes of collaboration and convicting them for what they had not written and the criticisms they had not made, despite the fact that they had referred in their text to Nazi atrocities and barbarism. 23. On 16 November 1993 the Criminal Division of the Court of Cassation dismissed the appeals on the following grounds: “Having regard [to the] findings [of the Court of Appeal] the Court of Cassation, whose task is to determine whether the text prosecuted under section 24(3) of the Act of 29 July 1881 constitutes a public defence of the crimes contemplated in that Act, is satisfied from its examination of the article in question that the passage referred to by the Court of Appeal falls within the contemplation of the aforementioned Act. In presenting as praiseworthy a person convicted of collusion with the enemy, the text glorified his crime and, in so doing, publicly defended it. The mental element of the offence can be inferred from the deliberate nature of the acts on account of which the defendants were charged. In delivering that judgment, the Court of Appeal did not exceed its powers. Nor did it infringe the right to freedom of expression protected by Article 10, paragraph 1, of the European Convention for the Protection of Human Rights and Fundamental Freedoms, since the exercise of that right may, under paragraph 2 of that Article, be subject to certain restrictions prescribed by law, where these are necessary, as in the instant case, in the interests of national security, territorial integrity or public safety.” 24. In 1984 section 23 of the Freedom of the Press Act of 29 July 1881 read as follows: “Where a crime or major offence is committed, anyone who, by uttering speeches, cries or threats in a public place or assembly, or by means of a written or printed text, drawing, engraving, painting, emblem, image, or any other written, spoken or pictorial item sold or distributed, offered for sale or exhibited in a public place or assembly, or by means of a placard or notice exhibited in a place where it can be seen by the public, has directly and successfully incited another or others to commit the said crime or major offence shall be punished as an accomplice thereto.” 25. At the same time, section 24 provided that “anyone who, by one of the means set out in section 23, has made a public defence of ... the crimes of collaboration with the enemy” was to be liable to one to five years’ imprisonment and a fine of from three hundred to three hundred thousand francs. 26. The French courts have gradually clarified the conditions for the application of the provisions making public defence of a crime a criminal offence. The Court of Cassation has ruled that public defence of the crimes defined in section 24(3) of the Act of 29 July 1881 is a separate offence from unsuccessful incitement to commit one of the crimes listed in sub-sections 1 and 2 of the same section and that the constituent elements of each of those offences must not be confused (Crim. 11 July 1972, Bull. crim. no. 236). As early as 1912 the Criminal Division of the Court of Cassation held that public defence of a criminal amounted to public defence of his crime (Crim. 22 August 1912, Bull. crim. no. 46). That case-law was upheld by a decision to the effect that the glorification of a person on the basis of facts constituting one of the crimes or major offences listed in section 24(3) of the 1881 Act constituted the crime of public defence defined in and punishable under that Act (Crim. 24 October 1967, Bull. crim. no. 263). Publication of a text which is likely to incite any reader to judge favourably the German National Socialist Party leaders convicted of war crimes by the Nuremberg International Tribunal and constitutes an attempt to justify their crimes in part is a public defence of war crimes (Crim. 14 January 1971, Bull. crim. no. 14). A public defence of the crime of theft is made out where an article is published which, far from merely relating a criminal theft, presents it as a praiseworthy exploit and expresses the hope that the perpetrator will escape all punishment (Crim. 2 November 1978, Bull. crim. no. 294). The offence is made out where an apologia is presented in indirect form (Paris, 25 February 1959, D. 1959. 552). Lastly, it is the Court of Cassation’s task to determine whether a text prosecuted under section 24(3) of the Act of 29 July 1881 partakes of the nature of a public defence of crime as defined therein (Crim. 11 July 1972, Bull. crim. no. 236). 27. Law no. 90-615 of 13 July 1990 (“the loi Gayssot”) added to the Freedom of the Press Act a section 24 bis making liable to one year’s imprisonment and a fine of 300,000 French francs, or one of those penalties only, those who “deny the existence of one or more crimes against humanity as defined in Article 6 of the Statute of the International Military Tribunal annexed to the London agreement of 8 August 1945 which have been committed either by the members of an organisation declared criminal pursuant to Article 9 of the Statute or by a person found guilty of such crimes by a French or international court”. Section 48-2 of the Freedom of the Press Act, also inserted by the loi Gayssot, provides: “Any association which has been lawfully registered for at least five years at the relevant time, and whose objects, according to its articles of association, include the defence of the moral interests and honour of the French Resistance or deportees, may exercise the rights conferred on civil parties in connection with public defence of war crimes, crimes against humanity or the crimes of collaboration with the enemy and in connection with the offence defined in section 24 bis.” 28. Articles 75 and 87 of the Criminal Code, applied by the High Court of Justice in its judgment of 15 August 1945 convicting Marshal Pétain, provided at that time: “Any French citizen who colludes with a foreign power with a view to inciting it to engage in hostilities against France, or provides it with the necessary means, either by facilitating the penetration of foreign forces into French territory, or by undermining the loyalty of the army, navy or air force, or in any other manner, shall be guilty of treason and sentenced to death.” “Any attempt to overthrow or change the government ..., or to incite citizens or inhabitants to take up arms against the imperial authority shall be punishable by deportation to a military fortress.”