CEDH · CASELAW;CLIN;ENG — 16 juillet 2009

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Belgium - 15615/07 Judgment 16.7.2009 [Section II] Article 10 Article 10-1 Freedom of expression Conviction of president of extreme right-wing party for inciting the public to discrimination or racial hatred in leaflets distributed in electoral campaign: no violation Facts : The applicant, the chairman of the “Front National-Nationaal Front” political party, was a member of the Belgian House of Representatives at the relevant time. Leaflets and posters distributed by his party in an election campaign led to complaints of incitation to hatred, discrimination and violence. The leaflets presented non-European immigrant communities as criminally-minded and keen to exploit the benefits they derived from living in Belgium, and also sought to make fun of them, with the inevitable risk of arousing feelings of distrust, rejection or even hatred towards foreigners. The applicant’s parliamentary immunity was lifted at the prosecutor’s request. Then criminal proceedings were brought against him as the author and editor-in-chief of the offending leaflets and owner of the website. The applicant was sentenced to 250 hours’ community service related to the integration of immigrants, together with a 10-month suspended prison sentence. He was also declared ineligible for ten years. The court found that the applicant’s offending conduct had not fallen within his parliamentary activity and that the leaflets contained passages that represented a clear and deliberate incitation to discrimination, segregation or hatred, and even violence, for reasons of race, colour or national or ethnic origin. An appeal by the applicant on points of law was dismissed. Law : The applicant’s conviction was an “interference” with his right to freedom of expression which was provided for by the law on racism and xenophobia. It had the legitimate aims of preventing disorder and protecting the rights of others. It was of the utmost importance to combat racial discrimination in all its forms and guises, as emphasised in the Council of Europe’s legal instruments. Incitation to hatred did not necessarily call for specific acts of violence or other offences. Insults, ridicule or defamation aimed at specific population groups or incitation to discrimination, as in this case, sufficed for the authorities to give priority to fighting hate speech when confronted by the irresponsible use of freedom of expression which undermined people’s dignity, or even their safety. Political speech that stirred hatred based on religious, ethnic or cultural prejudices was a threat to social peace and political stability in democratic States. The applicant’s position as a Member of Parliament could not be considered as a mitigating circumstance. It was crucial for politicians, when expressing themselves in public, to avoid comments that might foster intolerance. It was their duty to defend democracy and its principles because their ultimate aim was to govern. In this case, at the prosecutor’s request, the House of Representatives considered that the impugned comments justified lifting the applicant’s parliamentary immunity. Fostering the exclusion of foreigners was a fundamental attack on their rights, and everyone – including politicians – should exercise particular caution. The political party’s leaflets had been handed out in an electoral campaign, with a view to reaching the electorate at large, that is to say, the whole population. Political parties must enjoy broad freedom of expression to be able to canvass for votes; where racist or xenophobic comments were concerned, the electoral context helped to kindle hatred and intolerance and the impact of this type of speech grew worse and more harmful. Political speech required a high level of protection through parliamentary immunity and protection from prosecution for opinions expressed in Parliament. Political parties had the right to defend their opinions in public, even if they offended, shocked or disturbed part of the population. They could propose solutions to the problems linked to immigration, but without triggering reactions incompatible with a peaceful social climate and without undermining people’s confidence in the democratic institutions. Examination of the offending texts revealed that the wording the applicant had used was clearly an incitation to discrimination and racial hatred, which could not be disguised by the election campaign. The reasons given by the domestic courts to justify the interference with the applicant's freedom of expression had been pertinent and sufficient, considering the pressing social need to protect public order and the rights of others, namely, the immigrant community. Lastly the appeal court had sentenced the applicant to 10 years’ ineligibility, amongst other things, thereby applying the principle that restraint must be displayed in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of one’s opponents. The interference with the right to freedom of expression had thus been necessary in a democratic society. Conclusion : no violation (four votes to three).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes