CEDH · PRESS;GENERAL;ENG — 11 avril 2006

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   210 11.4.2006   Press release issued by the Registrar   CHAMBER JUDGMENT BRASILIER v. FRANCE   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Brasilier v. France (application no. 71343/01).   The Court held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.   As the applicant had not submitted any claim for just satisfaction, the Court considered that no award should be made under Article 41 (just satisfaction) of the Convention. (The judgment is available only in French.)   1.     Principal facts   The applicant, Benoît Brasilier, is a 51-year-old French national who lives in Paris.   In the 1997 parliamentary elections he stood as a candidate for the second Paris constituency against, in particular, the incumbent member of parliament Jean Tiberi, then mayor of Paris.   On 25 May 1997, when the first round of the elections was held, the applicant claimed that he had not found any of his ballot papers in the polling stations, despite the fact that he had had 60,000 copies printed and had entrusted them to the official forwarder ( Routeur de la République ), which had then supposedly forwarded them to the Paris municipal authorities responsible for distributing them to the various polling stations. That same day the applicant lodged a complaint alleging theft of his ballot papers. On 10 July 1997 the public prosecutor informed him of his decision not to act upon the complaint.   In June and July 1997 the applicant took part in a number of authorised public demonstrations on the Place du Panthéon. On one such occasion leaflets were distributed calling for Mr Tiberi’s election to be annulled and accusing him of rigging the ballot. In addition, banners were positioned opposite the city hall with the slogans “TIBERI tu nous casses les URNES” (“Tiberi, you've kicked us in the ballot box”) and “EN FACE : BUREAU de la FRAUDE, VOLS ET MAGOUILLE” (“Cross the road for the Office of Fraud, Theft and Wheeler-dealing”).   Mr Tiberi lodged a complaint against a person or persons unknown, alleging public defamation of an elected public official and publication of defamatory allegations. The applicant, having admitted responsibility for writing the leaflets and slogans and for distributing the leaflets and displaying the banners, was placed under judicial investigation.   Shortly afterwards, an application for the annulment of the election was dismissed by the Constitutional Council in a decision of 20 February 1998. It noted in particular that a succession of serious and recurring events led to the conclusion that the electoral roll for the fifth district of Paris had not been drawn up with due transparency and that proxies and polling cards had been used unlawfully, but it nevertheless considered that those events had not changed the final outcome of the ballot. As regards the complaint that ballot papers for the applicant and another candidate had been missing from the polling stations, the Constitutional Council found that the candidates had failed to provide the municipal authorities with their ballot papers within the time laid down in the Electoral Code.   On 19 March 1999 Mr Brasilier was acquitted by Paris Criminal Court, which considered that the impugned statements fell within the bounds of the purpose of the demonstration, which had been authorised by the authorities. On an appeal from Mr Tiberi, the Paris Court of Appeal found that, as the prosecution had not lodged an appeal, the applicant’s acquittal had become final. However, the Court of Appeal considered that Mr Brasilier had, by failing to adduce evidence for his allegations, rendered himself liable in tort. He was therefore ordered to pay Mr Tiberi one French franc in damages. The applicant unsuccessfully lodged an appeal on points of law.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 18 June 2001 and declared partly admissible on 7 June 2005.   Judgment was given by a Chamber of seven judges, composed as follows:   Ireneu Cabral Barreto (Portuguese), President , Jean-Paul Costa (French), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), Antonella Mularoni (San Marinese), Danutė Jočienė (Lithuanian), Dragoljub Popović (citizen of Serbia and Montenegro), judges , and also Sally Dollé , Section Registrar .               3.     Summary of the judgment [2]   Complaint The applicant complained that the decision by which he had been ordered to pay Mr Tiberi one French franc in damages, as a civil penalty, had entailed a violation of Article 10 of the Convention.   Decision of the Court   Article 10 The Court noted that the finding against the applicant constituted “interference” with the exercise of his right to freedom of expression. That interference had been prescribed by law and had pursued a legitimate aim.   As to whether the interference had been “necessary in a democratic society”, the Court noted the French courts’ finding that the applicant had committed a tort because he had failed to adduce evidence to substantiate the allegations made on the banners and in the leaflets. In this connection, it reiterated that a distinction needed to be made between factual statements, the truth of which could be demonstrated, and value judgments, which were not susceptible of proof. The Court further reiterated that, even when a statement was tantamount to a value judgment, the proportionality of the interference depended on the existence of a factual basis.   Unlike the Paris Court of Appeal, the Court considered that the impugned statements concerned public-interest issues and were to be regarded, given the general tone of the banners and leaflets, more as value judgments than as statements of pure fact.   The Court noted the French courts’ finding that the facts were to be seen in “the context of a heated controversy”, involving other opponents of the mayor and giving rise to numerous articles in the French press. Moreover, the former mayor, who had been the applicant’s opponent and had brought proceedings against him as a civil party, had eventually been placed under investigation by an investigating judge of Paris for fraudulent manipulation capable of distorting the result of the 1997 election. Even though, having regard to the presumption of innocence principle, a person placed under judicial investigation could not be deemed guilty, a factual basis had indeed existed in this case, especially as the “defamed” person, in his capacity as mayor, had been responsible for the organisation and proper conduct of the election.   As to the words themselves, the Court considered that they certainly had negative connotations, but that despite a certain hostility and seriousness, the central issue of the impugned banners and leaflets concerned the conduct of an election, and open political debate was essential to the proper functioning of democracy.   The Court emphasised that freedom of expression was particularly important in the context of political debate and considered that political comment could not be restricted without pressing reasons. The impugned comments had been directed against a member of parliament, who was also the mayor of Paris and mayor of the fifth district of Paris, and was without doubt a prominent figure in politics and in the media. The applicant himself had been a candidate in the election at issue. Interference with the freedom of expression of a member of the opposition, who represented his voters, relayed their concerns and defended their interests, required the Court to apply a stricter standard of scrutiny. In this connection, it reiterated that a person opposed to official ideas and positions had to be able to discuss the lawfulness of an election and that in the context of an electoral contest, a certain vivacity of comment could be tolerated more than in other circumstances.   As to the penalty imposed on the applicant, even though nominal damages of one franc was the smallest possible award, the Court considered that this fact did not suffice per se to justify interference with the applicant’s freedom of expression. It had moreover indicated on many occasions that any interference with freedom of expression might have a “chilling effect” on the exercise of that freedom.   In conclusion, the Court considered that the finding against Mr Brasilier constituted disproportionate interference with his right to freedom of expression.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts: Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.