CASE OF BIDART v. FRANCE
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
André Potocki;Angelika Nußberger;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano
5. The applicant was born in 1953 and lives in Béziers. 6. The applicant is the former head of the Basque separatist organisation Iparretarrak. After his detention in 1988, he was convicted several times: on 4 March 1991 he was sentenced to six years’ imprisonment for criminal association with a view to preparing a terrorist offence; on 10 November 1992 he was sentenced to life imprisonment for murder in the framework of terrorist activity, killing two members of the State security police force (“CRS”); on 9 April 1993 he was sentenced to six years’ imprisonment for armed robbery; on 9 June 1993 he was sentenced to life imprisonment for murder in the framework of terrorist activity, killing a gendarme; and on 31 March 2000 he was sentenced to twenty years’ imprisonment for conspiracy to murder, complicity in murder and armed robbery. 7. By judgment of 1 February 2007 the Sentence enforcement division of the Paris Court of Appeal released him on licence from 14 February 2007 to 14 February 2014, ordering to follow a seven-year programme of assistance and supervision. The Government pointed out that the applicant was the first person sentenced to life imprisonment for offences linked to terrorism ever to have been released on licence. 8. The Sentence enforcement division reiterated in its judgment that the applicant’s release on licence would be accompanied by the following general obligations (Article 132-44 of the Penal Code): complying with the instructions of the sentence enforcement judge or of the social worker from the Prison rehabilitation and probation service; receiving visits from the latter and providing him or her with information or documents facilitating supervision of his livelihood and compliance with his obligations; informing the social worker of any job changes and, if such changes are liable to hamper compliance with his obligations, obtaining prior authorisation from the sentence enforcement judge; informing the social worker of any changes of address and of any travel lasting for more than two weeks, reporting back to the latter on his return; and obtaining the authorisation of the sentence enforcement judge for any foreign travel and for any change of job or of address liable to impede compliance with his obligations. The division added the following special obligations (Article 132-45 [1], [3], [5] and [14] of the Penal Code): exercising an occupation or following vocational education or training; residing in Béziers; continuing, in accordance with his means, to pay into the Guarantee Fund for the compensation of victims of terrorism; and refraining from possessing or carrying a weapon. 9. On 7 November 2007 the Criminal Chamber of the Court of Cassation dismissed the appeal on points of law lodged by the Public Prosecutor with the Paris Court of Appeal. 10. On 24 December 2007 the applicant took part in a peaceful demonstration outside Agen Prison in support of Basque detainees being held there. The media reported on that demonstration. 11. Consequently, the Paris Sentence Enforcement Court delivered a judgment on 14 May 2008 imposing additional special obligations on the applicant: refraining from attending, in the vicinity of a prison or other detention facility, any demonstration in support of persons detained for terrorist offences or of any association or movement which is committing or has committed terrorist acts (Article 135-45 [9] of the Penal Code); refraining from distributing any document or audiovisual material produced or co-produced by himself concerning, in whole or in part, an offence committed by himself, and refraining from discussing that offence in public (Article 132-45 [16] of the Penal Code). 12. That judgment was upheld by judgment of the Paris Court of Appeal on 2 October 2008. However, the latter judgment was quashed by judgment of the Criminal Chamber of the Court of Cassation on 10 June 2009, on the grounds that the sentence enforcement court did not have jurisdiction to modify the obligations for release on licence, for which matter the sentence enforcement judge held jurisdiction. 13. On 18 February 2010 the Public Prosecutor’s Office requested that the sentence enforcement judge of the Regional Court of Paris add both the aforementioned obligations to the applicant’s list of obligations for release on licence, as well as a prohibition on “contacting any person actively engaged in promoting Basque separatism or supporting detainees convicted of or charged with terrorist acts pursuant to Articles 421-1 to 421-6 of the Penal Code, particularly with a view to expressing support for such detainees (Article 132-42 [12] of the Penal Code)”. 14. By judgment of 28 June 2010 the sentence enforcement judge decided to impose on the applicant the obligation set out in Article 132-45 (16) of the Penal Code: “refraining from distributing any document or audiovisual material produced or co-produced by himself concerning, in whole or in part, the offence committed, and refraining from discussing that offence in public, whereby [these] provisions [are] applicable only in cases of convictions for serious offences of intentional homicide, sexual assault or sexual abuse”. He noted that in its judgment of 1 February 2007 the Paris Court of Appeal had described the applicant “as a calm, respectful person who spent most of his time writing his memoirs”. The judge inferred that “although it is unclear what the word ‘memoirs’ entails, it is quite possible that Mr Bidart might be tempted to publish his memoirs and make statements on the offences of which he was convicted”. Nor did the judgment go into further detail on that point. It explained, however, that “during the adversarial proceedings Mr Bidart was reminded that the prosecution had requested the prohibition only of writings or statements connected with the offences of which he had been convicted”. 15. That judgment was upheld by judgment of the Paris Court of Appeal on 31 August 2010, stating that the obligation in question “merely prohibited commenting on or condoning the offences committed” and “that the obligation was not a disproportionate measure in the light of the need to protect public order, nor does it prevent Philippe Bidart from expressing his political convictions”. 16. By judgment of 30 March 2011 the Criminal Division of the Court of Cassation dismissed the appeal on points of law lodged by the applicant, on the grounds that in its judgment the Court of Appeal had properly applied Article 132-45 [16] of the Penal Code, in compliance with the legal texts and conventions relevant to the applicant’s appeal (including Article 10 of the Convention). ...