A RECENT JUDGEMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS ON RELIGIOUS HATE SPEECH

European Court of Human Rights, Fifth Section, Case Zemmour v. France, n. 63539/2019, 20 dicembre 2022.

With the pronouncement in question, the European Court of Human Rights has expressed its opinion on the delicate balance between the freedom of political expression, recognised and protected by Article 10 of the European Convention on Human Rights, and the limits it can practically face due to the need to suppress religious hatred and discrimination.

The case concerned statements made by a French individual - a well-known commentator at the time and later entering the political arena by even running for the French presidential elections - during the television program «C à vous» which aired in the early evening in 2016. On that occasion, he presented his book titled «Un quinquennat par rien» («A Useless Five-Year Term»), which included a lengthy forty-page introduction called «France Facing the Challenge of Islam.»

During the interview, the former commentator denied the existence of “peaceful Muslims” in France, fully integrated into French culture and the constitutional order.

He argued that there was a substantial assimilation between Islam and the jihadist phenomenon, and that France had been experiencing a true «invasion» and «Islamization» for thirty years, an «occupation» of a territory that «normally is not Islamized».

These statements sparked protests from the “Association for a Just Peace in the Middle East”, which sued the applicant before the Criminal Court for incitement to discrimination and religious hatred, as he had equated all Muslim believers, as a whole, with Islamic terrorism. The Criminal Court sentenced him to pay a fine of five thousand euros, reduced to three thousand euros by the Court of Appeal.

The ECtHR, approached by the applicant for violation of Article 10 ECHR, after examining whether there is a sufficient legal basis on which to limit freedom of expression and whether such limitation is necessary in a democratic society, denied that a violation had occurred in this particular case.

Regarding the predictability of the sanction, the ECtHR highlighted the established case law of the french Court of Cassation regarding the notion of "indirect" provocation, which, within the provocative conduct punishable under French criminal law, refers to incitement to hatred and discrimination.

As for the necessity of limiting freedom of expression, the ECtHR emphasised that tolerance and respect for the equal dignity of all human beings represent the foundation of a democratic and pluralistic society. While opinions on matters of public interest are strongly protected, those defending or justifying violence, hatred, xenophobia, or any other form of intolerance cannot be protected but can be legitimately repressed by national authorities - in accordance with the principle of proportionality - as necessary limits to freedom of expression. Therefore, in this case, the ECtHR dismissed the appeal, agreeing with the conclusions reached by the national jurisdiction, according to which the statements made by the applicant cannot be considered as an expression of critical opinion but as a genuine «appeal to discriminatory and hateful sentiments» towards members of the Muslim faith.

With this ruling, the ECtHR has reaffirmed the utmost importance and necessity of combating all forms and manifestations of racial and religious discrimination, which are essential prerequisites for the construction and peaceful development of a democratic society.

Brigitta Marieclaire Catalano