CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 24 juin 2003

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THE FACTS The applicant, Mr Roger Garaudy, is a French national who was born in 1913 and lives in Chennevières-sur-Marne. He is a philosopher and a writer as well as a former politician. He was represented before the Court by Ms I. Coutant Peyre, of the Paris Bar. A. The circumstances of the case The applicant explained that he had written many books and essays on, among other things, history, philosophy and Marxist issues, but also on religion and the dialogue of civilisations. Having been a politician, a Marxist humanist and then a Christian humanist, he subsequently converted to Islam. The facts of the case, as submitted by the parties, may be summarised as follows. In December 1995 the applicant published a book entitled   The Founding Myths of Israeli Politics , which was distributed through non-commercial outlets by La vieille taupe publishers and subsequently republished at the applicant's own expense in April and May 1996 by Samiszdat Roger Garaudy. Between February and July 1996 four criminal complaints, together with applications to join the proceedings as civil parties, were lodged against the applicant for denying crimes against humanity, publishing racially defamatory statements and inciting to racial or religious hatred or violence. The complaints concerned various passages from both editions of the book and were lodged by associations of former Resistance members, deportees and human rights organisations. The investigating judge's office started four judicial investigations in respect of the four complaints. Other associations subsequently sought leave to join the proceedings as civil parties. On 6 June 1996 the Paris public prosecutor also opened a judicial investigation in respect of the applicant on a charge of denying crimes against humanity. In five orders made by the investigating judge of the Paris tribunal de grande instance on 7 March 1997, the applicant was committed to stand trial before that court for five offences. Five separate sets of proceedings were thus referred to the trial courts. The proceedings concerned two different editions of and different passages from the applicant's book. At each stage of the different proceedings the courts gave judgment on the same day during the same hearing and each party addressed them once in respect of all five cases. The courts were composed of the same judges, who examined the five cases at each stage but gave five different decisions. ... 1.     The first set of proceedings, concerning Chapters 2 and 3, entitled “The Myth of the Nuremberg Trials” and “The Myth of the Holocaust” respectively, of the December 1995 edition (offence charged: aiding and abetting the denial of crimes against humanity) On 22 February 1996 a criminal complaint and application to join the proceedings as a civil party was lodged by the National Union of Associations of Deported and Interned Members of the Resistance and the National Federation of Deported and Interned Members of the Resistance for denial of crimes against humanity. The complaint was lodged not only against the applicant, but also against Mr Pierre Guillaume, the editorial director of La vieille taupe, for publishing the applicant's book in December 1995, Chapters 2 and 3 (pp. 72 and 136) of which were the subject of the complaint. Basing his decision on sections 23, 24, sixth paragraph, 24 bis , 42 and 43 et seq. of the Freedom of the Press Act of 29 July 1881, one of the investigating judges at the Paris tribunal de grande instance made an order on 7 March 1997 committing the applicant and Mr Pierre Guillaume for trial before that court on the charges of denying, and aiding and abetting the denial of a crime against humanity respectively. On 27 February 1998 the court acquitted the defendants on the charges and dismissed the civil parties' claims. Noting that “section 24 bis [of the Act of 29 July 1881] refers ... expressly to the means of publication set out in section 23” and that   “publication is therefore one of the constituent elements of the offence”, the court held that “publication must have been proved and be imputable to the defendant”. The court found that the prosecution had failed to adduce sufficient proof that the 1995 edition had been published within the meaning of section 23 of the Act of 29 July 1881. As publication had not been established, the offence had not been made out and the court did not examine the merits of the prosecution. The applicant had asked the court to refer a preliminary question to the European Court of Human Rights on the compatibility of section 24 bis of the Act of 29 July 1881 with the European Convention on Human Rights, particularly Article 10. Pointing out that the Convention was directly applicable in France, the court declared the applicant's proposed preliminary question inadmissible. The public prosecutor and seven civil-party associations appealed against the judgment of the Paris tribunal de grande instance . In a judgment of 16 December 1998 the Paris Court of Appeal set aside the lower court's judgment and sentenced the applicant to a suspended term of six months' imprisonment and a fine of 50,000 French francs (FRF). It awarded the civil parties damages of one franc. Mr Pierre Guillaume was given a suspended term of six months' imprisonment and fined FRF 30,000. The court also ordered publication in the Official Gazette of the announcement of Mr Pierre Guillaume's conviction for publishing the applicant's book. Basing its decision on section 24 bis of the Act of 29 July 1881 and the reference text to which it refers, namely Article 6 of the Statute of the Nuremberg International Military Tribunal, which defines crimes against humanity, the court held that the constituent elements of the offence of denying crimes against humanity had been made out. It found, firstly, that the publication element had been made out because the book had been made available to the public on payment of a subscription. It then examined the question raised by the applicant of the compatibility of section 24 bis of the Act of 29 July 1881 with Article 10 of the Convention. It confirmed that it was compatible with that provision, as follows: “Article 10 of the aforementioned Convention has to be interpreted in the light of the provisions of Article 17 of that Convention, according to which none of its provisions may be interpreted as implying any right to engage in any activity or perform any act aimed at the destruction of the rights and freedoms set forth in the Convention. Firstly, section 24 bis falls within 'the measures necessary in a democratic State' for the protection of the rights of others, provided for in Article 10, as it concerns the protection of the rights of the Nazis' victims in terms of ensuring and safeguarding the respect due to their memory. Moreover, a witness, Mr Finkelkraut, referred to 'the offensiveness of denying the survivors the true reasons for their suffering and the dead the true reasons for their death'. Secondly, section 24 bis of the Act of 29 July 1881 is aimed at preventing or punishing the public denial of facts that have been the subject of a final ruling by the Nuremberg International Military Tribunal and relate to events that are totally incompatible with the values of the Convention for the purposes of Article 17. With regard to the submission based on Lehideux and Isorni , the court notes that the European Court has twice ruled on the question of the application of Article 10 to crimes against humanity: § 47:     '... [the case] does not belong to the category of clearly established historical facts – such as the Holocaust – whose negation or revision would be removed from the protection of Article 10 by Article 17.' § 53:     'There is no doubt that, like any other remark directed against the Convention's underlying values, the justification of a pro-Nazi policy could not be allowed to enjoy the protection afforded by Article 10.' This submission cannot therefore succeed.” Expressing itself as follows, the court found that the constituent elements of the offence of denying crimes against humanity had been made out: “Having regard to the evidence produced in the case and to the submissions before the court, it appears that Mr Garaudy's intention, in his book, is to deny that a 'final solution', in the sense of people's extermination, of the Jewish question was organised. He also denies the method used, which was to send those unable or no longer able to work to their death in the gas chambers and incinerate their bodies. Mr Garaudy's demonstration is structured around two themes: questioning the conditions in which the facts have been studied and questioning the facts themselves.” With regard to his questioning of the conditions in which the facts have been studied, the court noted the following points: “(i)     Trivialisation of the facts: In respect of an event that has been regarded as exceptional – that of the destruction of human beings by reason of their membership of a race – Mr Garaudy makes a number of comparisons with the aim of trivialising the crime, firstly by comparing it to acts for which he blames the allies and, secondly, by drawing parallels with other historical events. After reiterating a number of Hitler's comments on the fate that should have been reserved to Jews in the First World War ... and that in the event of a Second World War 'the result ... would be ... the annihilation of the Jewish race in Europe ...' (page 76), Mr Garaudy states, on page 81: 'Neither Churchill, nor Stalin, nor Truman was among the war criminals in the dock. Nor were any of the perpetrators of the very worst incitements to commit crime ... the incitement to commit a “genocide”, in the true sense of the word this time, made in 1942 in the book by the American Jew, Theodor Kaufman ...'; then in a footnote and on page 82: '... neither the Anglo-American leaders responsible for the Dresden bombing ... nor Truman, the perpetrator of the atomic apocalypse of Hiroshima and Nagasaki ... was among the accused at the Nuremberg trials ...' Regarding the numbers involved (on page 138): 'Hitlerian domination is thus incorrectly described in certain propaganda as a “pogrom” of which the Jews were allegedly the principal, if not the only, victims. It was a human catastrophe which, unfortunately, is not without precedent since Hitler dealt with whites in the same way as European colonialists had dealt with “coloureds” for five centuries.' (ii)     Pejoration of the facts: In his book Mr Garaudy indicates the need for a debate: (page 135) 'As long as there is no academic and public debate between specialists of equal calibre on the report by the engineer Fred Leuchter, and the Cracow report ... doubt and even scepticism will remain.' This process, which he presents as one of historical exactitude, is in fact coupled with another process, which, by the terms used, consists in portraying the question of the systematic and massive extermination of Jews as a sham. Thus the words 'gas chambers', 'genocides' and 'holocausts' are put in quotation marks and presented as an 'unexpected alibi' ..., 'a myth dressed up as history and the political mileage gained from it', 'the myth of six million exterminated Jews that has become a dogma justifying and lending sanctity (as indicated by the very word Holocaust ) to every act of violence' (page 85). Although the word 'myth' can mean a symbolic representation, it appears from the context here that it is used to mean an untruth. The author uses the same reasoning on the subject of the gas chambers, referring to the 'spectre of the gas chambers' (page 144), and the crematoriums: 'there are crematoriums in all the big cities, in Paris (at the Père-Lachaise), in London, and in all the major capitals and these incinerations evidently do not signify an intention to exterminate people' (page 145). That comparison removes any association with their use in the Nazi camps. His approach is backed up by derisory comments regarding a number of terms used to refer to the events in question. Films on the subject are described as 'Shoah business' or 'fictional picture strips'. The Court has heard the parties' submissions regarding the origin of that term but, whatever it may be, the term has indeed been used in the instant case to describe the events in question as a fiction. (iii)     Discrediting the relevant institutions and witness evidence: Mr Garaudy refers to the Nuremberg Tribunal in terms which systematically call into question its legitimacy and undermine its actions. Hence the heading, on page 72: 'The Myth of the Nuremberg Trials'; on page 73: 'It is not an international tribunal since it is composed only of victors and, consequently, the only crimes to be judged are those committed by the vanquished'; and on page 112: 'the victors disguised in judges' gowns.' With regard to the Auschwitz trial, which concerned the same subjects, a parallel is drawn on page 110 with 'witch hunts' ... As regards the photos from the Auschwitz Album, which Mr Garaudy produced before the Court again, 'they also rule out the possibility that such extermination could have occurred at the same time in any “secret” part of the “camp” ' (page 133). In this context, the report by the engineer Leuchter, which denies the existence of the gas chambers, is presented as one of the only reports which 'would, if seriously and publicly debated, put an end to the controversy'. (iv)     Disputing the meaning of words such as overall solution, final solution ...:The defendant interprets these words every time as a solution to which recourse will be had only after the war (pages 96 and 107). Besides that, he considers that the only correct interpretation of these words is a geographical one: a deportation to Madagascar or to the east of the European continent.” On the denial of crimes against humanity the court made the following findings: “Mr Garaudy denies the nature of the final solution and disputes the number of Jewish victims and the cause of their deaths. –     Regarding the nature of the final solution: In Mr Garaudy's view, '... no one has ever been able to produce proof that, for the Nazis, the “final solution” of the Jewish problem meant extermination' (page 141). He infers, however, from a number of quotations from various texts that this solution was in fact their exile: Regarding a letter from Goering to Heydrich: '   “The only final solution” thus consisted in ridding Europe of its Jews by deporting them in ever larger numbers until the war (presuming we win it) allows them all to be put in a ghetto outside Europe (as first suggested in the Madagascar plan)' (page 94). Regarding a document referred to as the Wannsee Protocol, which gives an account of a meeting of Nazi dignitaries: 'There is no question of gas chambers or of extermination in this document, but only of transferring Jews to Eastern Europe' (page 100). Regarding a document written by Hitler: '... he defined, as early as 1919, ... what he had already described as his “ultimate goal”, “deportation of the Jews”. That was his “ultimate goal” until his death, as was the fight against “Bolshevism”, which ultimately got the better of him' (page 227). The defendant suggests that the very idea of the Jews' destruction is implausible because it would have been inefficient: 'He [Hitler] is driven to mobilising extra troops by withdrawing the factory workforce, and was allegedly so fatally obsessed with his war effort that he took to exterminating prisoners and Jews, rather than employing them, albeit in inhuman conditions, on his work sites.' After Hannah Arendt referred to the 'crazy and fanciful' nature of that comment, Mr Garaudy writes, 'What is even stranger is that people as shrewd as Poliakov or Hannah Arendt had such fixed ideas that they failed to reconsider their surrealist theories' (pages 107 and 108) ... –     Regarding the number of victims and the cause of their deaths: In numerous passages Mr Garaudy disputes at the same time the number of Jewish deaths, the cause of their deaths and the use of gas chambers to kill them. Regarding the number of deaths, on page 85: '.... we will endeavour to examine one of the untruths which still, after almost half a century, gains the most ground across the world today and not only in the Middle East: the myth of the six million Jews that has become a dogma.' The title of a chapter on page 136: 'The myth of the Holocaust.' In Mr Garaudy's view, the deaths were caused by the deportations: 'That was when they suffered the most, not only in the way that all civilians suffer in times of war ... but also forced labour ... to serve the German war effort ... Lastly, epidemics, such as typhus, seriously ravaged the concentration camp population, who were malnourished and reduced to a state of exhaustion ... Is it therefore necessary to resort to other methods to explain the terrible incidence of death among the victims of this treatment ...' (page 143). The manner in which the author denies the existence of the gas chambers has already been indicated. The following are examples of more specific denials. On page l45: '   “Gas chambers” therefore had to be added to the crematoriums to establish the dogma of extermination by fire.' On page 236 (passage not included as such in the charge, but referred to here on account of the context): 'When it was proved, despite a considerable number of “eyewitnesses” to the existence of “gas chambers”, that they had never existed in Germany, it became necessary, in similarly arbitrary manner, to continue to affirm as undeniable identical evidence of their existence in the eastern camps.'     Lastly, the court held: During the hearings, Mr Garaudy was invited to address the Court on all the issues which have just been examined. This was done in the light of his previous statements both before the investigating judge and the trial courts, which were read out to the court in full. He maintained the content and import of those statements, which themselves confirmed the passages in respect of which he had been prosecuted. He indicated, among other things, that his purpose was to combat the risks posed by Zionism. Before the Court the defendant reiterated, among other things, that there was no proof that the final solution meant the extermination of the Jews, ... denied the existence of gas chambers in Auschwitz, confirmed that he disputed the figure of six million dead. ... It can be established from all the foregoing evidence that Mr Roger Garaudy has committed the offence of denying crimes against humanity.” The applicant appealed on points of law against that judgment. In his submission, prosecuting him on the charge of denying crimes against humanity within the meaning of section 24 bis of the Act of 29 July 1881 did not fall within the exceptions authorised by Article 10 § 2 of the European Convention of Human Rights since his book was a politically polemical work that was devoid of any racist purpose and did not set out to deny the existence of Nazi crimes. On 12 September 2000 the Court of Cassation dismissed the appeal on the following grounds: “In declaring the defendant guilty, on the grounds reproduced in the appeal, of the offence of denying crimes against humanity on account of several passages from his book The Founding Myths of Israeli Politics , the Court of Appeal, which did not exceed the limits of the case as referred to it, justified its decision. Having regard to the terms employed in the passages complained of and also to extrinsic elements contained in other parts of the book, the judges properly evaluated the significance and impact of the comments in question. Article 10 of the European Convention of Human Rights, which guarantees the principle of the freedom of expression, provides in its second paragraph for certain restrictions or penalties, as are prescribed by law, which constitute necessary measures in a democratic society for the prevention of disorder and the protection of the rights of others. That is the purpose of section 24 bis of the Act of 29 July 1881. Lastly, denial of the existence of crimes against humanity falls within the provisions of section 24 bis of the Act of 29 July 1881, even where presented indirectly or in terms expressing doubts or by insinuation. The offence is also made out where, on the pretext of attempting to ascertain an alleged historical truth, the aim is to deny the crimes against humanity committed by the Nazis against the Jewish community; that was the case here. The submission must therefore fail.” 2.     The second set of proceedings, concerning twelve passages from the April/May 1996 edition (offence charged: denial of crimes against humanity) On 6 May 1996 the Association of the Sons and Daughters of Jews Deported from France lodged a criminal complaint, together with an application for leave to join the proceedings as a civil party, against Samiszdat Roger Garaudy publishers and the applicant for the offence of denying crimes against humanity. The complaint concerned the entire second edition of the applicant's book. After being committed for trial before the Paris tribunal de grande instance in an order of 7 March 1997, the applicant was then convicted. On 27 February 1998 the court found the applicant guilty of denying crimes against humanity and sentenced him to a fine of FRF 30,000. It awarded the civil parties one franc in damages and compensation of FRF   10,000. After examining the relevant passages, the court noted:   “It thus appears that, far from confining himself to political or ideological criticism of Zionism and the actions of the State of Israel – criticism that is perfectly legal under the legislation governing freedom of expression – or even giving an objective account of revisionist arguments and merely calling, as he claims, for a 'public and academic debate' on the historical event constituted by the gas chambers, Roger Garaudy has subscribed to those theories and engaged in a virulent and systematic denial of the existence of the crimes against humanity committed against the Jewish community, as adjudged by the Nuremberg International Military Tribunal. The offence under section 24 bis has therefore been made out.” The applicant, the public prosecutor and four civil-party associations appealed against the judgment of the Paris tribunal de grande instance . In a judgment of 16 December 1998 the Paris Court of Appeal upheld the lower court's judgment and added a suspended term of six months' imprisonment. The court based its decision on reasoning analogous to that in the judgment delivered on the same date in the first set of proceedings. As in the first set of proceedings, the applicant appealed to the Court of Cassation against that judgment. On 12 September 2000 the Court of Cassation dismissed the appeal for reasons identical to those of the judgment delivered on the same date in the first set of proceedings. 3.     The third set of proceedings, concerning twenty passages from the April/May 1996 edition (offence charged: denial of crimes against humanity) Following an investigation opened at the request of the public prosecutor at the Paris tribunal de grande instance , the applicant was committed for trial before that court in an order of 7 March 1997. On 27 February 1998, after examining the passages in respect of which the applicant was being prosecuted, the court found him guilty of the offence of denying crimes against humanity and sentenced him to a fine of FRF 50,000. It awarded the civil parties one franc in damages and FRF   10,000 in compensation. The court also ordered publication of the operative provisions of its judgment in the Official Gazette of the French Republic. The applicant, the public prosecutor and five civil-party associations appealed against that judgment. In a judgment of 16 December 1998 the Paris Court of Appeal upheld the aforementioned judgment and added a suspended term of six months' imprisonment. It also ordered the publication of an announcement of the applicant's conviction in the Official Gazette of the French Republic. The court based its judgment on reasoning analogous to that in the judgments delivered on the same date in the first and second sets of proceedings. As in the previous two sets of proceedings, the applicant appealed to the Court of Cassation. On 12 September 2000 the Court of Cassation dismissed the appeal on the same grounds as those set out in the judgments delivered on the same date in the first and second sets of proceedings. 4.     The fourth set of proceedings, concerning several passages from the April/May 1996 edition (offence charged: publishing racially defamatory statements) On 23 May 1996 the International League against Racism and Anti-Semitism (LICRA) lodged a criminal complaint, together with an application to join the proceedings as a civil party, against the applicant for the offence of defaming a group of persons on the ground of their membership or non-membership of an ethnic group, race or religion. In an order of 7   March 1997 the applicant was committed for trial before the Paris tribunal de grande instance . On 27 February 1998 the court, basing its decision on sections 23, 29, first paragraph, and 32, second paragraph, of the Act of 29 July 1881 after examining the passages in question, found the applicant guilty of the offence of publicly defaming a group of persons (the Jewish community) and sentenced him to a fine of FRF   20,000. It awarded the civil parties one franc in damages and compensation in the amounts of FRF 10,000, FRF   5,000 and FRF 1. The applicant, the public prosecutor and five civil-party associations appealed against the judgment of the Paris tribunal de grande instance . In a judgment of 16 December 1998, the Paris Court of Appeal upheld the aforementioned judgment, adding a suspended term of three years' imprisonment and ordering the payment of FRF 20,000 to LICRA for the legal costs it had incurred. In its judgment the court found as follows: “Contrary to his [the applicant's] allegations, the charge of defaming the Jewish community is not based on the criticism of the policies pursued by the State of Israel – only rarely mentioned as such, moreover, in the book in question – but the substance of the book as constituted by the passages that form the basis of the prosecution's case. The explicit and avowed aim of the book is the description of what the author calls the 'founding myths' of that policy, those myths being presented as deliberate distortions of history ('myth of the six million') or mystifications for political ends ... by the Zionists ('the Israeli-Zionist lobbies in France and the United States') who were 'the major beneficiaries', in order to legalise all their external and internal acts of violence by placing themselves above the law and endangering world unity and peace.” The court found that the passages referred to, whether taken alone or as part of the whole book, “seriously harm[ed] the Jewish community as a whole, as the lower courts [had] properly decided”. In the court's opinion, the indiscriminate use of the terms “Zionist”, “Jewish vote”, “Jewish lobby”, “Israeli” or “State of Israel” in the applicant's book, and in particular in the passages complained of, served to confuse the reader. In the court's opinion, “such confusion, having regard to the intellectual level and to the influence which the defendant claim[ed], particularly in the Middle East, referring as he [did] to twenty-five translations of the book in question, ha[d] a purpose that [had] indeed [been] the one reflected in the charge: damaging the honour and reputation of that community”. The applicant appealed on points of law against that judgment. In his submission, the statement about “lobbying”, which was a legal activity, fell outside the charge of defamation. On 12 September 2000 the Court of Cassation gave judgment, dismissing the appeal on the following grounds: “In finding the defendant guilty of the offence, the judges ruled in accordance with the grounds reproduced in the appeal. In the light of those statements, the judges did not exceed the limits of the case as referred to them and properly judged the significance and impact of the comments complained of. Suggesting that a community referred to in section 32, second paragraph, of the Act of 29 July 1881 engaged in the practice of 'lobbying' in order to justify acts of violence 'endangering world unity and peace' infringes the honour and reputation of that community and amounts to the offence referred to in and punishable under the above-mentioned provision. The interests protected by that provision and those protected by the provision making it an offence to deny crimes against humanity are different in nature. They do not necessarily concern the same persons or the same groups of persons and consequently the two offences, where both are charged, do not constitute a plurality of offences in respect of the same criminal act.” 5.     The fifth proceedings, concerning four passages from the April/May 1996 edition (offences charged: publication of racially defamatory statements and incitement to racial hatred) On 1 July 1996 the Movement against Racism and for Friendship among Peoples (MRAP) lodged a criminal complaint, together with an application to join the proceedings as a civil party, against the applicant for publicly defaming a group of persons on the ground of their membership or non-membership of a particular ethnic group or race and inciting to discrimination, hatred or violence against a group of persons on the ground of their origin or their membership or non-membership of a particular ethnic group or race. In an order of 7 March 1997 the applicant was committed for trial before the Paris tribunal de grande instance . On 27 February 1998, basing its decision on sections 23, 24, sixth and seventh paragraphs, 29, first paragraph , 32, second paragraph, 42 et seq., the court acquitted the applicant of incitement to racial discrimination, hatred or violence, but convicted him of publicly defaming a group of persons, namely the Jewish community. The applicant was sentenced to a fine of FRF 20,000 and the court awarded the civil parties one franc in damages. The court acquitted the applicant on the first offence on the ground that, although “in both passages referred to in the charge sheet the author singled out ... the Jewish community on account of its allegedly excessive influence on the media and its power to 'manipulate' public opinion”, “in order for the offence of incitement under ... section 24, sixth paragraph, of the [Freedom of the] Press Act to be made out, it [was] necessary for the impugned text, both in terms of its significance and its impact, to incite the public to discrimination, hatred and violence”. The court concluded that there was nothing in the passages that “incite[d] or even encourage[d] readers to adopt the behaviour or sentiments punishable under the Act”. However, the court convicted the applicant of public defamation for using the term “Shoah business” in his book on the following grounds: “In associating the term 'business' with the word 'Shoah' (which means 'catastrophe') by which Jews refer to the genocide they suffered during the Second World War, and in expressing doubts as to whether it actually occurred, the defendant suggests, in these passages, that the Jews deceitfully fabricated evidence of the reality and extent of the genocide for financial gain. That allegation undeniably infringes the honour and reputation of the entire Jewish community.” The applicant, the public prosecutor and four civil-party associations appealed against the judgment of the Paris tribunal de grande instance . In a judgment of 16 December 1998 the Paris Court of Appeal set aside the applicant's acquittal on the charge of incitement to racial discrimination and hatred and upheld his conviction for public defamation. The applicant was sentenced to a suspended term of three months' imprisonment and a fine of FRF 20,000. Regarding the offence of incitement to racial discrimination and hatred, the court held: “... it is indeed the Jewish community that is targeted by the impugned passages and not simply the supporters of the State of Israel's policies. That community is clearly accused of constituting a minority concentrated in the areas of politics, the press, radio, television and publishing capable of collusion, exerting influence disproportionate to its numbers and manipulating public opinion in favour of the interests it defends. By giving readers the impression that they are being manipulated by a category representing 2% of the French population that acts like a secret bandmaster, the author cannot but encourage sentiments of rejection and hatred of that fraction of society, in this case the Jewish community. The impugned comments do not have to contain an incitement to hatred, violence or discrimination. It is sufficient, for the offence to be made out, for the passages to be such as to arouse those sentiments.” The applicant appealed on points of law against that judgment. On 12 September 2000 the Court of Cassation dismissed the appeal on the following grounds: “In declaring the defendant guilty, on the grounds reproduced in the appeal, of the offences of publicly defaming a group of persons on the ground of their origin, their membership or non-membership of a particular ethnic group, nation, race or religion and of incitement to hatred or violence against that group of people, on account of several passages of his book The Founding Myths of Israeli Politics , the Court of Appeal, which did not exceed the limits of the case as referred to it, properly assessed the significance and impact of the impugned comments and found that all the elements of the offences – in terms of both the actus reus and the mens rea – had been made out.” 6.     Circumstances common to the five sets of proceedings (a)     The applications to join the proceedings The applicant applied to the Paris Court of Appeal five times for the proceedings to be joined, relying on the fact that the five cases concerned the same book and were dealt with at the same hearing. In his submission, the reason for examining each case separately had been to interfere with the exercise of the rights of the defence and provide the prosecution with additional pretexts. The court dismissed the application five times. It considered that the proceedings against the applicant, “although they concern the same author, involve two different editions of the same work; the reasons for keeping them separate is that several different sets of proceedings were brought by the public prosecutor and by the [different] civil parties, which each referred to ... different passages or passages of different impact”. However, the court did take the following measure: “On the other hand, the parties have been informed that all the court records will be appended to each case file, as has been done, moreover, for all the previous investigative measures.” The five suspended prison sentences were ordered to run concurrently. The fines (totalling FRF 170,000) were cumulative, however, as were the amounts payable to the civil-party associations (totalling FRF 220,021). (b)     Increase of sentence on appeal In its five judgments the Paris Court of Appeal decided to impose a heavier sentence on the applicant than the one imposed by the tribunal de grande instance on the ground that the sentence should be determined “on the basis of the seriousness of the offence and the status of the offender”. The court found that the offences with which the applicant had been charged were particularly serious in that they amounted “in reality to deconstructing the values on which the fight against racism and particularly anti-Semitism are based”, and that “the author twist[ed] his comments in such a way as to discredit the Jewish community as a whole, arouse hostility towards it by associating himself with revisionist theories ... and undermine not only the values of the community in question but the universal values of our civilisation”. As regards the status of the author, the court took account, in determining sentence, of the applicant's position as a recognised academic in France and abroad, of his responsibility as a former lecturer and politician and of his avowed intention to wield international influence, particularly in the Middle East. ... B.     Relevant domestic law 1.     The Freedom of the Press Act of 29 July 1881 (a)     Sections 23, 24, 24 bis , 29 and 32 Section 23 “Where a crime or major offence is committed, anyone who, by uttering speeches, shouts or threats in a public place or meeting, or by means of a written or printed matter, 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 meeting, or by means of a placard or poster on public display, has directly and successfully incited another or others to commit the said crime or major offence shall be punished as an accomplice thereto. This provision shall also apply where the incitement is followed only by an attempt to commit a crime, as defined in Article 2 of the Criminal Code.” Section 24 Anyone who, by one of the means set forth in the preceding section, has directly but unsuccessfully incited another to commit one of the following offences   shall be liable to a prison sentence of five years and a fine of FRF   300,000: 1 o     intentional homicide, intentional bodily harm or sexual assault as defined in Book II of the Criminal Code; 2 o     theft, extortion or wilful destruction, damage or vandalism constituting a danger to persons as defined in Book III of the Criminal Code. Those who, by the same means, have directly incited another to commit a crime or major offence against the fundamental interests of the nation as defined by Title I of Book IV of the Criminal Code shall be liable to the same penalties. Anyone who, by one of the means set out in section 23, has made a public defence of the crimes referred to in the first paragraph, a war crime, a crime against humanity or a crime or major offence of collaboration with the enemy shall be liable to the same penalty. Anyone who, by the same means, has directly incited another to commit a terrorist act as defined in Title II of Book IV of the Criminal Code or has made a public defence of such an act shall be liable to the penalty set forth in the first paragraph. Anyone who engages in seditious shouting or chanting in a public place or assembly shall be liable to the fine prescribed for class 4 offences. Anyone who, by one of the means set forth in section 23, incites another to discrimination, hatred or violence against a person or group of people on the ground of their origin or their membership or non-membership of a specific ethnic group, nation, race or religion shall incur a term of imprisonment of one year and a fine of FRF   300,000 or one of those penalties only. Where a conviction is secured for one of the offences set forth in the preceding paragraph, the court may also order 1 o     the offender to be stripped of the rights listed in 2 o and 3 o of Article 131-26 of the Criminal Code for a maximum of five years, save where the offender's responsibility is engaged under section 42 and section 43, first paragraph, of this Act or under the first three paragraphs of section 93-3 of the Audiovisual Communication Act of 29 July 1982 (no. 82-652); 2 o     the decision to be posted up or displayed pursuant to Article 131-35 of the Criminal Code.”   Section 24 bis (created by Law no. 90-615 of 13 July 1990) “Anyone who denies 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 under Article 9 of the Statute or by a person found guilty of such crimes by a French or international court shall be liable to the penalties set forth in section 24, sixth paragraph. The court may also order 1 o     the decision to be posted up or displayed pursuant to Article 131-35 of the Criminal Code.” Section 29 “It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be an offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the impugned speeches, shouts, threats, written or printed matter, placards or posters. It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact.” Section 32 “Defamation of an individual by one of the means set forth in section 23 shall be punishable by a fine of FRF 80,000. Defamation by the same means of a person or group of people on the ground of their origin or their membership or non-membership of a specific ethnic group, nation, race or religion shall be punishable by a term of imprisonment of one year and a fine of FRF 300,000 or one of those penalties only. Where a conviction is secured for one of the offences listed in the preceding paragraph the court may also order 1 o     the decision to be posted up or displayed pursuant to Article 131-35 of the Criminal Code.” (b)     The Court of Cassation's case-law In a judgment of 24 October 1989, the Court of Cassation held: “Since publication is the element by which an offence against the press legislation is made out, any reproduction in a published periodical of a text that has already been published shall, regardless of the language in which it is written, constitute a further offence; accordingly, without infringing the non bis in idem rule, re-publication shall expose the offender to criminal proceedings, irrespective of those brought following initial publication.” ( Bulletin criminel no. 428)   2.     The Code of Criminal Procedure (a)     Joinder of proceedings Article 387 “Where a court is required to deal with several sets of proceedings relating to connected facts, it can order them to be joined of its own motion or at the request of the public prosecutor or one of the parties.” In a judgment of 24 October 1989 the Court of Cassation held: “The non bis in idem rule does not apply where the acts giving rise to the first set of proceedings are not legally or factually identical to the facts relating to the second set of proceedings.” ( Bulletin criminel no. 211) ... 3.     The Criminal Code Article 5 “In the event of conviction for several serious offences or less serious offences, only the heaviest penalty available for one of the individual offences shall be imposed.” That provision was repealed on 1 March 1994 and replaced by the following provisions: Article 132-2 “There is aggregation of offences where a further offence is committed before the offender is finally convicted of a previous offence.” Article 132-4 “Where, in separate proceedings, the defendant has been convicted of several offences, the penalties shall be served consecutively up to the statutory limit for the most serious offence. However, sentences of the same type may be ordered to be served concurrently, in full or in part, either by the last court to deal with the case or in the conditions set out in the Code of Criminal Procedure.” ... COMPLAINTS 1.     Relying on Article 6 § 1 of the Convention, the applicant submitted that his right to a fair hearing by an impartial tribunal had been breached. He contended that the courts had systematically dismissed his defence submissions because the conditions in which the proceedings had been conducted had unfairly placed him at a disadvantage when defending his case. The applicant sought to stress that the proceedings had been reported by the media in a tense and hostile environment. He submitted that he had been the subject of a smear campaign and trial by the press that had set out to falsify, distort and discredit the contents of his book and present him as a revisionist. ... 2.     The applicant complained, under Article 6 § 1 of the Convention and Article 4 of Protocol No. 7, of a breach of the non bis in idem rule on account of the French authorities' refusal to join the five sets of proceedings. In his submission, the decision to deal with the cases separately despite the fact that they concerned one individual alone and one book was an artificial exercise that had been undertaken in order to secure multiple convictions. According to the applicant, the simultaneity of the proceedings and convictions, three of which had been secured on the basis of the same criminal classification, aggravated the breach in question. By misusing their power of exclusive jurisdiction, the French courts had thus, he argued, infringed his right to a fair and equitable trial. ... 5.     Relying on the Declaration of the Rights of Man, the French Constitution and the European Convention on Human Rights, the applicant complained of section 24 bis of the Act of 29 July 1881 (inserted by the Act of 13 July 1990 (known as “ loi Gayssot ”)), on which the first three sets of proceedings had been based. ... 6.a.     The applicant complained that