CEDH · CASELAW;CLIN;ENG — 29 juin 2004

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France - 64915/01 Judgment 29.6.2004 [Section II] Article 10 Article 10-1 Freedom of expression Conviction of writer and publisher for defamation of members of a recognised Resistance group in a historical account in a book: no violation Facts : The first applicant was the author of a book entitled “AUBRAC-Lyon 1943”, published in 1997 by Éditions Albin Michel (the third applicant), whose chairman was the second applicant. The book described historical events from the Second World War relating to the French Resistance. In particular, it examined one of the main “grey areas” from this period, namely the Caluire meeting, a particularly significant event in the history of the French Resistance. On 21 June 1943 Klaus Barbie, regional head of the Gestapo, arrested the main leaders of the Resistance, who were meeting in Caluire, a suburb of Lyons. Among those arrested was Raymond Aubrac, a member of the Resistance movement, who succeeded in escaping in the autumn of 1943. The book’s author sought to challenge what he called the official truth about this major episode in the history of the Second World War as reported, inter alia, by Mr and Mrs Aubrac in the media. Accordingly, the book had an appendix containing a memoir by Klaus Barbie, the so-called “ Testament Barbie ”, and the author posed a large number of questions based on comparison of this document with the account of the events given by Mr and Mrs Aubrac. The Aubracs instituted proceedings against the applicants for libel. The court convicted the first two applicants of criminal libel against the Aubracs in their capacity as members of a “recognised Resistance movement” and ordered them to pay fines. The applicants were also ordered to pay damages to Mr and Mrs Aubrac. The court dismissed the request for the book to be destroyed, but ordered the publication of a legal notice and its insertion in every copy of the book. The court of appeal upheld the judgment, considering in particular that the book’s thesis as a whole tended to suggest to readers that the Aubracs had committed acts of betrayal and that it systematically called into question the historical accounts given by those recognised members of the Resistance by implying that they had lied. The Court of Cassation dismissed an appeal on points of law by the applicants. Law : Article 10 – There had been interference with the applicants’ exercise of their freedom of expression. It had been based on two pieces of legislation, dated 1881 and 1951, as interpreted in the Court of Cassation’s consistent case-law. As professionals in the publishing field, the publisher and the publishing company could not have been unaware of those elements of positive law and had thus been in a position to assess the risks incurred in the author’s challenging of hitherto uncontested historical facts and to draw his attention to those risks. Moreover, the publisher and, through him, the author ought to have been aware that, in accordance with the consistent case-law, the book’s contents could result in a conviction for libel. The legal consequences of the book’s publication had therefore been reasonably foreseeable. The applicants’ conviction had had a legitimate aim, namely to protect the Aubracs’ reputation. The quest for historical truth was an integral part of freedom of expression and in the instant case the substantive historical issue, which was part of an ongoing debate among historians and public opinion, did not belong to the category of clearly established historical facts – such as the Holocaust – whose denial or revision would be removed from the protection of Article 10 by Article 17. With regard to the proportionality of the interference, the Court considered that the convictions – handed down after a thorough and very detailed examination of the book’s content – had been based on relevant and sufficient grounds. It was satisfied by the evidence and reasoning on which the national courts had based their conclusion that the content of the book in question had not complied with the essential rules of historical method and had made particularly serious insinuations. With regard to the penalties imposed, the Court noted that the courts had not ordered the destruction of the book or banned its publication. The penalties imposed did not appear to be unsuitable measures or overly restrictive of freedom of expression. In short, the interference with the applicants’ freedom of expression had not been disproportionate to the legitimate aim pursued.   Conclusion : no violation (unanimously).   © 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