CEDH · CASELAW;CLIN;ENG — 18 septembre 2008

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France - 35916/04 Judgment 18.9.2008 [Section V] Article 10 Article 10-1 Freedom of expression Conviction for criminal libel towards a representative of a religious community (the director of the Grand Mosque in Lyons): violation   Facts : In November 2001 the magazine Lyon Mag’ published an article entitled “Compulsory Retirement for Chief Mufti” which included an interview with the applicant, who was presented as a former member of the Board of Directors of the Grand Mosque of Lyons, in which he explained the circumstances of the departure of Mr Chirane, the imam of the Grand Mosque of Lyons. In the article the applicant criticised the conduct of Mr Kabtane, the director of the Grand Mosque of Lyons, in particular his administrative and financial management of the mosque and his religious practice. Mr Kabtane brought proceedings against the applicant, the newspaper’s publication director and Lyon Mag’ before the domestic courts for public defamation of an individual. In 2002, the publication director of Lyon Mag’ submitted twenty-one documents to the civil party in evidence. The Court of Appeal, reviewing the first-instance judgment on these points, found that the proceedings had been terminated by an amnesty and that, in respect of the civil action, only one of the passages of the interview constituted the offence of public defamation of an individual. It declared the applicant and the publication director liable for the damage sustained by Mr Kabtane and ordered them jointly and severally to pay him EUR 1,500   in damages, Lyon Mag’ , for its part, being liable under civil law for the financial penalties imposed. The applicant unsuccessfully appealed on points of law. Law : The article was focused on the management of the Mosque and its funding. At the time this had been a matter of controversy – fuelled and revived by the imam’s departure – which had been widely reported in the regional and national press. The funding and management of a place of worship, of any type, were in principle matters of public interest for the members of the religious community concerned and, more broadly, for the community as a whole. Mr Kabtane could be considered a public figure on account of the institutional dimension and the importance of his duties. As director and manager of the Grand Mosque of Lyons, he represented the Muslim community in the Lyons region and thus exposed himself to criticism of the manner in which he carried out his duties. Given the general tenor of the interview and the context in which the offending comments had been made, the Court considered that they were to be regarded as value judgments rather than bald statements of fact. As to whether there was a sufficient factual basis, the many documents produced in evidence showed that at the time of the article in question the offending comments had not been entirely without factual basis. Furthermore, Mr Kabtane had been under investigation for misappropriation and fraud and the judicial proceedings had still been under way at the relevant time. Even though, having regard to the presumption of innocence, a person under investigation could not be deemed guilty, the comments had not been entirely devoid of a factual basis. With regard to the comments themselves, the Court did not discern any “manifestly insulting” terms such as to justify restricting the author’s freedom of expression and considered that the language used by the applicant could not be regarded as excessive, particularly in view of the public dimension of the victim’s duties. The Court accordingly held that the applicant’s conviction amounted to a disproportionate interference with his right to freedom of expression and could not be regarded as “necessary in a democratic society”. Conclusion : violation (unanimously). Article 41: EUR 1,500 in respect of non-pecuniary damage.   © 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