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‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 12 November 2015

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - weeks 45-46


  • European Convention on Human Rights does not protect negationist and anti-Semitic performances
  • Dismissal of the applicant’s appeal on points of law for formal reasons which were attributable to the prosecutor deprived him of access to a tribunal
  • Criminal proceedings against prominent Azerbaijani journalist were unfair
  • Restrictions on freedom of expression imposed on former leader of Basque separatist organisation when he was released on licence were justified
  • Decision to revoke suspension of a previous sentence before suspect’s conviction in new proceedings breached presumption of innocence

European Convention on Human Rights does not protect negationist and anti-Semitic performances - case of M’Bala M’Bala v. France - application inadmissible - The case concerns the conviction of Dieudonné M’Bala M’Bala, a comedian with political activities, for public insults directed at a person or group of persons on account of their origin or of belonging to a given ethnic community, nation, race or religion, specifically in this case persons of Jewish origin or faith.
At the end of a show on 26 December 2008 at the “Zénith” in Paris, Dieudonné M’Bala M’Bala invited Robert Faurisson, an academic who has received a number of convictions in France for his negationist and revisionist opinions, mainly his denial of the existence of gas chambers in concentration camps, to join him on stage to receive a “prize for unfrequentability and insolence”. The prize, which took the form of a three-branched candlestick with an apple on each branch, was awarded to him by an actor wearing what was described as a “garment of light” – a pair of striped pyjamas with a stitched-on yellow star bearing the word “Jew” – who thus played the part of a Jewish deportee in a concentration camp.
The Court found that during the offending scene the performance could no longer be seen as entertainment but rather resembled a political meeting, which, under the pretext of comedy, promoted negationism through the key position given to Robert Faurisson’s appearance and the degrading portrayal of Jewish deportation victims faced with a man who denied their extermination. In the Court’s view, this was not a performance which, even if satirical or provocative, fell within the protection of Article 10 (freedom of expression) of the European Convention on human rights, but was in reality, in the circumstances of the case, a demonstration of hatred and anti-Semitism and support for Holocaust denial. Disguised as an artistic production, it was in fact as dangerous as a head-on and sudden attack, and provided a platform for an ideology which ran counter to the values of the European Convention.
The Court thus concluded that Dieudonné M’Bala M’Bala had sought to deflect Article 10 from its real purpose by using his right to freedom of expression for ends which were incompatible with the letter and spirit of the Convention and which, if admitted, would contribute to the destruction of Convention rights and freedoms.

Dismissal of the applicant’s appeal on points of law for formal reasons which were attributable to the prosecutor deprived him of access to a tribunalHenrioud v. France - violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights - The case concerned the applicant’s inability to secure the return of his children to Switzerland, who had been taken to France by their mother. The Court found that the applicant had been deprived of his right of access to a tribunal because the Court of Cassation had been excessively formalistic in declaring his appeal on points of law inadmissible on the ground of non-compliance with a formal condition attributable to the public prosecutor with the Court of Appeal. The Court further found that the applicant had not provided the Court of Appeal with the requisite information for contesting his tacit acceptance of the failure to return his children.

AND:

Criminal proceedings against prominent Azerbaijani journalist were unfair - case of Sakit Zahidov v. Azerbaijan

Restrictions on freedom of expression imposed on former leader of Basque separatist organisation when he was released on licence were justified - Bidart v. France

Decision to revoke suspension of a previous sentence before suspect’s conviction in new proceedings breached presumption of innocence - El Kaada v. Germany

Texts are based on the press releases of the European Court of Human Rights. This selection covers categories 1 and 2 judgments.  

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