ECHR decision of 11 June 2020 in the case "Baldassi and Others v. France" (aplication No. 15271/16).
In 2016, the applicants were assisted in the preparation of the aplication. The aplication was subsequently communicated to France.
The case successfully considered an aplication against the criminal prosecution and conviction of the applicants for encouraging visitors to the supermarket not to buy products from israel. The case did not violate the requirements of article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The case violated the requirements of article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicants are members of a local society for the support of Palestine, which participated in the international campaign" Boycott, divestment and sanctions "(hereinafter referred to as "Boycott, Divestment and Sanctions"). - A campaign launched by non-governmental organizations in 2005 following an opinion of the International Court of Justice was prosecuted for encouraging supermarket customers not to buy products from Israel, based on a provision of the Freedom of the Press Act that prohibited incitement to discrimination against a group of people on the basis of, inter alia, their origin or belonging to a certain nationality. The applicants were acquitted in the first instance court on the grounds that the relevant paragraph of the article of the Law on Freedom of the Press did not apply to the circumstances of the case, but were convicted by the second instance court and sentenced to a suspended fine of 1,000 euros, and they were also obliged to compensate the plaintiffs ' associations for the damage caused.
Regarding compliance with article 7 of the convention. Of course, the relevant paragraph of the article of the Law on Freedom of the Press did not explicitly mention incitement to economic discrimination, which was specifically mentioned in another paragraph of the article applied, but only in relation to such characteristics as gender, sexual orientation or disability, and not origin or belonging to a certain nationality.
However, in view of the existing case-law at that time, the applicants could have known that they were at risk of criminal prosecution for their calls for a boycott of products imported from Israel, as the European Court of Justice had already expressed this opinion in the case of Willem v. France of 16 July 2009, complaint No. 10883/05 (see below).
There was no violation of the requirements of article 7 of the Convention (adopted by six votes in favour and one against).
Regarding compliance with article 10 of the Convention. In view of the finding in respect of article 7 of the Convention, the intervention was "provided for by law". the reasoning behind the applicants ' sentences indicated that their conviction was intended to protect the right of israeli producers or suppliers to access the market. Thus, it was a question of protecting the "rights of others", which is recognized as a legitimate goal in accordance with article 10, paragraph 2, of the Convention. It remains to be seen whether the intervention was "necessary in a democratic society", in the light of the principles set out in the Judgment of the Grand Chamber of the European Court of Justice in the case "Perincek v. Switzerland" ( v. Switzerland) of 15 October 2015, complaint No. 27510/08.
Evaluation of calls for a boycott. Boycotts are primarily a way of expressing protest opinions. Consequently, a call for a boycott, the purpose of which is to communicate protest opinions together with a call for certain actions related to them, falls within the scope of protection of article 10 of the Convention.
Nevertheless, the call for a boycott is a special way of exercising the right to freedom of expression, since it combines the expression of a protest opinion and incitement to a difference in treatment, so depending on the circumstances that characterize it, it can be considered as a call for discrimination.
At the same time, the call to discrimination is a call to intolerance, which, together with calls to violence and hatred, is one of the limits that can never be exceeded in the exercise of the right to freedom of expression. However, incitement to a difference in treatment is not necessarily a call to discrimination.
Judgment of the European Court of Justice in the case "Willem v. France" (Willem v. France). The conclusion reached by the European Court in the present case is largely based on the following elements: the fact that, in announcing his decision to require municipal catering services to boycott Israeli products, the applicant Willem acted in an official capacity as mayor and exercised the associated powers in violation of the duty of neutrality and the corresponding duty of restraint; on the manner in which he made this statement, namely, on the fact that he did not initiate a discussion in the municipal council and a vote, and therefore it could not be said that he contributed to a free discussion on a matter of public interest.
the real deal. The present case is distinguished by the fact that the applicants are ordinary citizens who are not entrusted with the duties and responsibilities inherent in the office of mayor, and whose influence on consumers is incomparable with the influence of the mayor on the authorities of the relevant commune. However, it was precisely with the aim of provoking or stimulating discussion among consumers that the applicants made calls for a boycott, which led to the persecution they complain about to the European Court of Justice.
Furthermore, the applicants were not convicted of racist or anti-Semitic statements, incitement to hatred or violence, or acts of violence or damage. it should be noted that the supermarket did not file a civil claim in the criminal case.
The Court does not question the law on the basis of which the applicants were convicted. However, the fact remains that, as interpreted and applied in the present case, the Law prohibits any call to boycott products on the basis of their geographical origin, regardless of the content of the call, its motives and the circumstances under which it took place.
In condemning the applicants, the Court of the respondent State did not analyze the actions and statements for which they were persecuted in the light of these factors, but concluded generally that the call for a boycott constituted a provocation of discrimination and "could not be part of the right to freedom of expression". In other words, it did not find that, given the circumstances of the case, the applicants ' conviction was necessary in a democratic society to achieve a legitimate aim.
at the same time, in the present case, careful reasoning was even more important. first, the actions and statements alleged against the applicants concerned a matter of public interest (the state of israel's compliance with public international law and the human rights situation in the occupied palestinian territories) and were part of a contemporary debate that was open both in france and in the international community as a whole.
Secondly, these actions and statements were the expression of political and propaganda opinions. By its very nature, the expression of political opinions is a source of controversy and often occurs in a harsh form. However, because of this, it does not cease to be of public interest, unless it develops into a call for violence, hatred or intolerance. It is impossible to go beyond these limits, as the Special Rapporteur on freedom of religion or belief stressed in his report on his activities to the UN General Assembly in 2019 on calls for a boycott.
Thus, there were no relevant and sufficient grounds for the applicants ' conviction to show that the court applied the rules consistent with the principles provided for in article 10 of the Convention and was based on a proper assessment of the circumstances of the case.
the case involved a violation of the requirements of article 10 of the convention (adopted unanimously).
In the application of article 41 of the Convention. The Court awarded each of the applicants EUR 380 in respect of pecuniary damage and EUR 7,000 jointly in respect of non-pecuniary damage.