I prepared this very rapidly, so it's not exactly my best work, but here is a translation into English of the court's full opinion. It includes a translation of the text of the article that gave rise to the case.
Regards,
ceo_esq
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GINIEWSKI v. FRANCE
(
Docket no. 64016/00)
DECISION
STRASBOURG
January 31, 2006
PROCEDURE
1. The case arises from a petition (no. 64016/00) directed against the French Republic and submitted by an Austrian national, Mr. Paul Giniewski ("Petitioner"), to the Court on December 13, 2000 pursuant to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the "Convention").
2. Petitioner is represented by the firm of Arnaud Lyon-Caen, Françoise Fabiani, Frédéric Thiriez, attorneys at law. The French government (the "Government") is represented by Ms. Edwige Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs.
3. The government of Austria, which was informed by the clerk’s office of its right to intervene (Articles 36 § 1 of the Convention and 44 § 1(a) of the Rules), indicated, by means of a letter dated June 29, 2005, that it did not intend to avail itself of such right.
4. Petitioner alleged an infringement of his right to freedom of expression within the meaning of Article 10 of the Convention.
5. The petition was assigned to the second section of the Court (Article 52 § 1 of the Rules). Within such section, the chamber responsible for examining the matter (Article 27 § 1 of the Convention) was impaneled in accordance with Article 26 § 1 of the Rules.
6. On November 1, 2001 and November 1, 2004, the Court modified the composition of its sections (Article 25 § 1 of the Rules). The present petition was assigned to the restructured second section (Article 52 § 1).
7. By a decision dated June 7, 2005, the chamber declared the petition admissible.
8. Both Petitioner and the Government filed briefs on the merits of the case (Article 59 § 1 of the Rules).
9. By letters dated June 15, 2005 transmitted to the parties via the intermediary of the clerk, the Court invited the parties to submit, if they wished, additional information and briefs. It also invited Petitioner’s counsel to submit its request for just satisfaction pursuant to Article 41 of the Convention no later than September 9, 2005.
10. On September 20, 2005, without any motion for extension having been filed with the Court, Petitioner presented a supplemental brief and its request for just satisfaction. As these were submitted after the expiry of the allotted time period, the chairman of the panel decided, pursuant to Article 38 § 1 of the Rules, not to enter these documents in the record.
FACTS
I. CIRCUMSTANCES OF THE CASE
A. Procedure
11. Petitioner was born in 1926 and resides in Paris. He states that he is a journalist, sociologist and historian. He explains that, in the ensemble of his works, he strives to advocate reconciliation between Jews and Christians.
12. The facts of the case, as adduced by the parties, may be summarized as follows.
13. In its January 4, 1994 issue, the newspaper
Le quotidien de Paris published an article written by Petitioner entitled "The Darkness of Error" on the topic of the papal encyclical
The Splendor of Truth released in late 1993 ("
Veritatis Splendor").
14. By a written complaint dated March 18, 1994, the association "General Alliance Against Racism and for the Respect of French and Christian Identity" (AGRIF) brought directly before the Paris criminal court Mr. P. Tesson, the newspaper's director of publication, Petitioner, and
Le quotidien de Paris in their respective capacities as author, accomplice and civilly liable party, in order to answer the charge of racial defamation against the Christian community in violation of Article 32 para. 2 of the Law of July 29, 1881, by virtue of the publication of the aforementioned article and in particular the following passages:
"The Catholic Church appoints itself the sole keeper of divine truth …. It loudly proclaims the fulfillment of the Old Covenant by the New, and the superiority of the latter…
… many Christians have acknowledged that scriptural anti-Judaism and the doctrine of the 'fulfillment' of the Old by the New Covenant lead to anti-Semitism and prepared the ground in which the idea and the fulfillment of Auschwitz germinated."
15. By a ruling dated October 4, 1994, the criminal court rejected the objections raised by Petitioner and ordered that the case proceed. By an order dated March 8, 1995, the criminal court found the defendants guilty of the misdemeanor of publicly defaming a group of persons by reason of their religious affiliation, namely the community of Christians. The director of publication and Petitioner were each ordered to pay a fine of 6,000 French francs (FRF).
16. Declaring admissible the joinder of AGRIF as a civil party, the court ordered the director of publication and Petitioner, jointly, to pay to such association 1 FRF in damages as well as 7,000 FRF pursuant to Article 475-1 of the Code of Criminal Procedure. In addition, the court ordered the publication of its judgment, at the defendants' expense (up to 10,000 FRF) in a nationally circulated newspaper. In its opinion, the court noted:
The Catholic Church, presented as the exclusive and wrongful holder of divine truth, is criticized for proclaiming its attachment to the doctrine of the fulfillment of the Old Covenant by the New Covenant, a doctrine affirmed again in the encyclical The Splendor of Truth. It is added that scriptural anti-Judaism and this doctrine of fulfillment "lead to anti-Semitism and formed the soil in which the idea and the execution of Auschwitz germinated."
Thus, according the text’s author, not only the idea but the very execution of the massacres and horrors committed at Auschwitz, symbol of the Nazi extermination camps, is the direct extension of one of the foundations of the Catholic faith, namely the doctrine of the fulfillment of the Old Covenant in the New, and thus directly gives rise to responsibility on the part of Catholics as well as the part of Christians generally.
Such an assertion is obviously detrimental to the honor and reputation of Christians and more particularly the Catholic community, and falls within the scope of Article 32 para. 2 of the Law of July 29, 1881.
… a causal link between membership in a religion and the fact imputed by the litigious statement certainly exists in this case: because they belong to a religion that allegedly manifests historical anti-Semitism and because they acknowledge the worth of the Pope’s encyclical and of the doctrine of fulfillment affirmed therein, it is alleged that Christians and Catholics and Catholics to be partly responsible for the massacres of Auschwitz.
… Albeit that the defendant was entitled to denounce historical Christian anti-Semitism and to forewarn the reader against any new manifestation or resurgence of such sentiment by recalling that, historically, Christian churches have sometimes accepted and even encouraged the idea of "the cultivation of contempt" with regard to the Jewish people, presented as the perpetrators of deicide, nothing entitled him, upon the occasion of the publication of the Pope’s new encyclical reaffirming the doctrine of "fulfillment", to employ outrageous terms and to hold the Catholic community guilty by association of the Nazi massacres committed at Auschwitz.
In fact, the witnesses produced by the defendant at trial all affirmed that Nazism, a racist and biological doctrine, was completely foreign to historical Christian anti-Semitism and the doctrine of "fulfillment" which signifies the full realization of the Old Covenant of God with his people in the New Covenant born of Christ’s sacrifice.
Finally, the association drawn between, on the one hand, Christian anti-Semitism and the encyclical The Splendor of Truth, which Mr. Giniewski moreover refrained from explaining to the court, and on the other hand, the persecution of the Jews at Auschwitz, reflect a personal animosity on the party of the defendant and a bad-faith resentment with regard to the Christian community, as the litigious remarks go well beyond any theoretical and theological discussion.
In this regard, the Court notes the deliberate use of the word "fulfillment" to designate both the organization of the Auschwitz massacres and the doctrine reaffirmed by the Pope in his encyclical.
Accordingly, the defendant's good faith has not been established by the body of evidence.
17. Petitioner appealed. By a decision handed down on November 9, 1995, the Paris Court of Appeals upheld, with regard to Petitioner, the judgment rendered on October 4, 1994, and reversed the judgment rendered on March 8, 1995. The court of appeals dismissed the proceedings against Petitioner and rejected the civil party complainant’s demands. The appellate court opined:
…in his article, Paul Giniewski essentially reproaches the encyclical The Splendor of Truth for elevating, among theological principles, the doctrine of the "fulfillment" of the Old Covenant by the New, a doctrine which appears to him to contain the seeds of anti-Semitism; this criticism is unambiguously expressed in the next-to-last paragraph of the article…;
… the meaning of Paul Giniewski's remark can be summarized thusly: certain principles of the Catholic religion colored by anti-Semitism facilitated the Holocaust.
… the Court is fully aware of the reactions that such an article may provoke within the Catholic community, even though the author claims to express the opinion of "many Christians";
… nevertheless, … by so vigorously criticizing the encyclical The Splendor of Truth, Paul Giniewski is prompting a debate simultaneously theological and historical on the scope of certain religious principles and on the origins of the Holocaust; because the thesis advanced by this author is a matter of doctrinal debate, it does not constitute, from a legal perspective, a specific act of defamation ….
18. AGRIF appealed to the Court of Cassation (French Supreme Court). In a judgment rendered on April 28, 1998, the Court of Cassation overturned the decision of the Paris Court of Appeals, "but solely with regard to the civil action, all other parts of the decision being expressly upheld." It remanded the case and the parties to the Orléans Court of Appeals. The Court of Cassation stated:
…in so ruling, although the challenged remarks imputed to the Catholic community incitation to anti-Semitism and responsibility for the massacres committed at Auschwitz, the court of appeals did not provide a legal basis for its decision;
The decision of the court of appeals is reversed, but only as to the civil action…
19. By a decision dated December 14, 1998, the Orléans Court of Appeals, ruling on the civil merits and adopting the analysis of the Court of Cassation, confirmed the rulings of October 4, 1994 and March 8, 1995 with regard to Petitioner. The appellate court award AGRIF a new indemnity of 10,000 FRF on the basis of Article 475-1 of the Code of Criminal Procedure. It also ordered the following notice to be published, at the defendant’s expense (up to 10,000 FRF), in a nationally circulated newspaper of the civil complainant's choice:
"By a decision dated December 14, 1998, the Orléans Court of Appeals ordered Paul Giniewski, journalist, to pay to the General Alliance Against Racism and for the Respect of French and Christian Identity (AGRIF) 1 FRANC in damages after finding him guilty of the misdemeanor of public defamation of a group of persons by reason of their religious profession, in this case the community of Christians, for having published … an article entitled 'On the Encyclical
The Splendor of Truth: The Darkness of Error.'"
20. In its opinion, the appellate court specifically noted:
… the defendant is wrong to deny having blamed Catholics and, more generally, Christians for the Nazi massacres; it matters little that such responsibility can be analyzed as more or less long-term given the use of the expression "prepared the ground".
After examining the documents produced, neither the Pope nor the Church in France can directly implicate Catholics in the extermination perpetrated at Auschwitz;
Accordingly, by reason of their religious affiliation, Christians are indeed the victims of misdemeanor defamation.
… the virulence of the general tone of the article, the parallel in the pertinent passage between the "doctrine of fulfillment" and "the fulfillment of Auschwitz", the very use of the latter term by itself evoking both genocide and the extermination of the opponents of the Nazi regime, rule out the good faith of the author…
21. Petitioner appealed to the Court of Cassation. In the context of the sole argument advanced in support of his appeal, he invoked Article 10 of the Convention and submitted that his remarks, which were objective and sincere, had no gratuitous polemical or malicious content, and thus met the requirements of good faith.
22. On June 14, 2000, the Court of Cassation rejected the appeal in a decision justified in the following terms:
… the statements of the contested decision and the examination of the procedural elements enables the Court of Cassation to verify to its satisfaction that the court of appeals, on sufficient and defensible grounds, responsive to the matter before it, had, after examining the particular circumstances invoked by the defendant, properly rejected the defendant's defense of good faith…
B. The Article
23. The published text read as follows:
On the Encyclical The Splendor of Truth: The Darkness of Error…
The subject of John Paul II’s new encyclical, The Splendor of Truth, is the foundations of moral theology according to Catholic Teaching. It seeks to provide the faithful with answers to the question posed to Jesus by a young man in the New Testament: "What must I do to gain eternal life?"
Unfortunately, from the point of view of other religions and the Jewish point of view, the papal text is supported by two kinds of affirmation:
1. The Catholic Church appoints itself the sole keeper of divine truth and assumes for itself the "duty" to diffuse its doctrine as the only universal.
2. It loudly proclaims the fulfillment of the "Old" Covenant by the New, and the superiority of the latter, a doctrine which continues the "teaching of contempt" for the Jews, once denounced by Jules Isaac as the foundation of anti-Semitism.
According to John Paul II, "the task of authentically interpreting the word of God, whether in its written form or in that of Tradition, has been entrusted only to those charged with the Church's living Magisterium", which is, accordingly, entitled to declare that some theological and even "philosophical affirmations are incompatible with revealed truth." The Catholic Church supposedly possesses "a light and a power capable of answering even the most controversial and complex questions".
Non-Catholics are regarded with condescension: "Whatever goodness and truth is found in them is considered by the Church as a preparation for the Gospel."
The supersession of the Jewish religious heritage is affirmed with the same arrogance.
The law, which the Church calls "old", is only a prefiguration of Christian perfection. The Decalogue of Moses is "a promise and sign of the New Covenant". Jesus is the "new Moses". The law of Moses is but "a figure of the true law", "an image of the truth". Moses descended Mount Sinai bearing "tablets of stone" in his hands. The apostles carried "the Holy Spirit in their hearts". The Christian law is "written not with ink, not on tablets of stone but on tablets of human hearts". The prescriptions imparted by God in the Old Covenant "attained their perfection in the New".
For the old law is inefficient. It has, granted, a pedagogical role. But the "justice" which it demands, it can provide to no one: only the new law confers grace; it "is not content to say what must be done", but also gives the power to "do what is true".
The encyclical contains ideas already developed, in 1992, in the voluminous Catechism of the Catholic Church. And as in that regrettable catechism, a few barbs are fired, in keeping with Catholic tradition, at the Pharisees. "Great care" is required of the faithful "not to allow themselves to be tainted by the attitude of the Pharisee", which consists, in our time, in adapting moral norms to the capacities and interests of the individual - in other words, rejecting the very idea of a norm.
One wonders how the Catholics and their religious authorities would swallow an equivalent Jewish attack on the New Covenant.
One also wonders how the Polish pope reckons that his encyclical is compatible with the exhortation of the "Ten Points of Seelisberg", and with the requirement contemplated in the first draft of the Vatican II document on the Jews, asking Christians to teach nothing that disparages the Jews and their doctrines.
Many Christians have acknowledged that scriptural anti-Judaism and the "doctrine of the fulfillment" of the Old by the New Covenant lead to anti-Semitism and prepared the ground in which the idea and the fulfillment of Auschwitz germinated.
In 1993, the Holy See pays this no heed. Though proclaiming the splendor of truth, it carries on in darkness and error.
C. General Context
24. Petitioner’s remarks arose in the context of a recurring debate of ideas, in which historians, theologians and religious authorities are participants. The two most recent Popes themselves, John Paul II and Benedict XVI, as well as the authorities of the Catholic Church, have weighed in on the possibility that the portrayal of Jews in the New Testament has contributed to creating hostility toward them. We refer in particular to the "Declaration of Penitence of the Catholic Church in France" of September 30, 1997, which underscores the historical responsibility of the French Church with regard to the Jewish people; to an address given on October 31, 1997 by John Paul II on the occasion of a symposium on "The Roots of Anti-Judaism in the Christian Milieu", or, more recently, to the work The Jewish People and their Sacred Scriptures in the Christian Bible, published in 2001 by the Pontifical Biblical Commission under the direction of Cardinal Joseph Ratzinger, who, in the preface, notes on the subject of the Shoah that "what ought to emerge now is a new respect for the Jewish interpretation of the Old Testament."
II. THE RELEVANT INTERNAL LAW
25. The pertinent articles of the Law of July 29, 1881 on freedom of the press provide as follows:
Article 29
"Any allegation or imputation of a fact which harms the honor or reputation of the person or body to which such fact is imputed constitutes defamation. The direct publication or reproduction of such allegation or imputation is punishable, even if done in a doubtful way or if directed at a person or body not expressly identified, but the identification of which is made possible by the terms of the discourse, incriminating shouts, threats, written or printed matter, signs or posters. Any offensive expression, terms of contempt or invective not imputing specific facts constitutes an injury."
Article 32
(Prior to amendment by order no. 2000-916 of September 19, 2000, art. 3, promulgated September 22, 2000 and effective as of January 1, 2002)
"Defamation committed against individuals by any means described in article 23 shall be punished by a fine of 80,000 FRF.
Defamation committed by the same means against a person or group of persons by reason of origin or membership or non-membership in a given ethnicity, nation, race or religion shall be punished by either or both of one year in prison and a fine of 300,000 FRF.
In the event of a conviction for one of the acts described in the foregoing paragraph, a court may also order:
1. The posting or publication of the judgment in the manner set forth in Article 131-35 of the Criminal Code."
LAW
I. THE ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
26. Petitioner alleges that his conviction under articles 29 and 32 § 2 of the Law of July 29, 1881 constituted a violation of Article 10 of the Convention, which provides in pertinent part:
"1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. (...)
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, … for the protection of the reputation or the rights of others … ."
A. Positions of the parties
1. Petitioner
27. Petitioner maintains that his conviction for publication of the litigious article constitutes an unlawful interference with his right to freedom of expression. He rejects the interpretation of his article given by the national courts. According to him, the text criticizes the attitude of the Catholic Church to the extent that it "appoints itself the sole keeper of divine truth". He next wished to demonstrate that the doctrine of supremacy embodied through the primacy conferred on the New Covenant, since its corollary is the devaluation of the Old Covenant made between God and the Jewish people, cast opprobrium on the latter and was the seed of the anti-Semitism without which there would have been no Auschwitz. The litigious article does not affirm that the doctrine of the Catholic Church is intrinsically anti-Semitic, but that "scriptural anti-Judaism" leads to anti-Semitism, which is a nontrivial nuance. Petitioner cannot, except through a caricatural oversimplification, be accused of having blamed the Catholic Church for the crimes perpetrated at Auschwitz. He adds that the national courts systematically extrapolated from his remarks by extending them to all Christianity, whereas they only mention the Catholic Church.
28. Petitioner next contests the claim that, under the pretext that the litigious article bears upon a sensitive question of a religious nature, his freedom of expression can be more narrowly circumscribed. He argues that the circumstances of the case at bar are far from those examined by the Court in Wingrove v. United Kingdom (November 25, 1996, Collected Decisions 1996-V) and Otto-Preminger-Institut v. Austria (September 20, 1994, Series A no. 295-A, pp. 18-19). The present case, he avers, calls for assessing not the article’s form but solely the idea advanced by Petitioner, without animosity or malice. He explains that in his capacity as an experienced historian and journalist, he intended only to contribute to the body of thought on the origin of anti-Semitism and the extermination of the Jews and thus to participate in a debate of general interest. Although he understands that his view is not shared by all, including by AGRIF, he nonetheless thinks that his article contributed to an essential discussion. While aware that his discourse may have disturbed or shocked some readers, he maintains that, in light of the foregoing, he should not have been subject to criminal prosecution, which was not "necessary in a democratic society".
29. Finally, the question of the amount of Petitioner's monetary fines is not the object of this controversy, which relates fundamentally to an objection to the very principle of his conviction.
2. The Government
30. The Government does not contest that Petitioner’s judicial conviction constitutes an "interference" in the exercise of his right to free expression and that such interference is "prescribed by law", namely Articles 29 and 32 of the Law of July 29, 1881.
31. The Government considers, nevertheless, that the complaint raised under Article 10 of the Convention is baseless.
32. First and foremost, the aforementioned interference served one of the legitimate aims cited in paragraph 2 of Article 10 of the Convention, namely the protection of the reputation or rights of others, since Petitioner’s conviction was aimed at protecting Christians against defamation.
33. According to the Government, the interference was particularly "necessary in a democratic society". In effect, Petitioner’s conviction fulfilled the criteria of necessity and proportionality articulated by the Court in its jurisprudence, with due regard for the measure of discretion which must be accorded to national authorities in such matters.
34. In this regard, the Government argues first that the grounds on which the national courts based their decisions are "relevant and adequate", as the Petitioner was convicted only following a thorough and painstaking examination of the litigious remarks.
35. As for the proportionate nature of the sentence with respect to the legitimate aim pursued, the Government explains that Petitioner’s remarks targeted a large group of persons - the Christian community - by means of a nationally distributed newspaper, and were especially serious. Moreover, while the Government acknowledges the theoretically reduced discretion of States in free-expression matters involving political discourse or serious questions of general interest, it nonetheless argues that such discretion can be broadened in the case of attacks on religious convictions (notably in Wingrove, cited supra). Accordingly, Petitioner should have taken additional precautions in drafting his article – especially since the condemned passage does not represent a value judgment but evokes a fact susceptible to proof or refutation. In effect, the article clearly asserts the liability of the Catholic Church, and thus of its adherents, in the extermination of the Jews by the Nazi regime. Petitioner thus did not express an opinion, but rather imputed a fact to the Christian community's responsibility.
36. Secondarily, the Government contends that Petitioner’s remarks, even if they were interpreted as constituting a value judgment, went beyond participation (even polemical) in a historical debate, and constituted a calumnious amalgamation that had the effect of imputing to the Catholic Church responsibility in one of history’s greatest crimes.
37. Finally, the Government emphasizes the small monetary value of the sentence imposed on Petitioner and concludes that the national courts carefully crafted a fair balance between freedom of expression on one hand, and respect for the rights of others, on the other hand.
B. The Court's Analysis
38. The challenged conviction may indisputably be analyzed as an "interference" with Petitioner’s exercise of his right to freedom of expression. Such an interference contravenes the Convention if it does not meet the requirements of paragraph 2 of Article 10. Thus, it must be determined whether it was "prescribed by law", inspired by one or more of the legitimate goals mentioned in such paragraph, and "necessary, in a democratic society", in order to attain such goals.
1. "Prescribed by law"
39. The parties agree that the interference was "prescribed by law", namely Article 29 and Article 32 para. 2 of the Law of July 29, 1881, as they existed at the time in question (see paragraph 26 supra). The Court concurs in this view.
2. Legitimate aim
40. The Court notes that the objective of the interference was to protect a group of persons against defamation by reason of their membership in a given religion, in this case the Christian community. This aim corresponds to that of the protection "of the reputation or the rights of others" within the meaning of paragraph 2 of Article 10 of the Convention. It is also perfectly consistent with the objective of the protection of religious freedom offered by Article 9 (see, mutatis mutandis, Wingrove, supra, § 48).
41. Determining whether there was a real need to protect the Christian community (as the national courts and the Government have affirmed), or whether the litigious article was limited to a criticism of the Catholic Church and the papal encyclical The Splendor of Truth only (as Petitioner maintains), requires us to analyze the motives invoked by the national authorities to justify the interference and thus relates to the criterion of "necessity in a democratic society" examined hereinafter.
42. Accordingly, the challenged interference had a legitimate aim within the meaning of paragraph 2 of Article 10 of the Convention.
3. "Necessary in a democratic society"
43. As the Court has held on several occasions, freedom of expression constitutes one of the essential foundations of any democratic society, of the primordial conditions of its progress and of individual development. Subject to paragraph 2 of Article 10, it applies not only to "information" or ideas" that are favorably received or considered inoffensive or innocuous, but also to those that disturb, shock or upset (Handyside v. United Kingdom, decision of December 7, 1976, Series A no. 24. p.23, § 49). As recognized by paragraph 2 of Article 10, the exercise of this freedom nonetheless carries with it duties and responsibilities. Among them - in the context of religious opinions and beliefs - may legitimately be included the obligation to avoid expressions which are gratuitously offensive to another, thus constituting an injury to his rights, and which do not contribute to any form of public discourse capable of fostering progress in the affairs of the human race (see, mutatis mutandis, Otto-Preminger-Institut, supra, § 49, Wingrove, supra, § 52, and Gündüz v. Turkey, no. 35071/97, § 37, ECHR 2003-XI).
44. In examining whether restrictions on the rights and freedoms guaranteed by the Convention can be deemed "necessary in a democratic society", the Court has declared again and again that the Contracting States enjoy a certain – but not unlimited - degree of discretion (Wingrove, supra, § 53). The lack of a uniform conception, among European countries, of the requirements entailed by the protection of the rights of others in the context of attacks on religious beliefs, broadens the discretion of Contracting States when regulating freedom of expression in areas likely to offend private personal convictions of a moral or religious nature (see Otto-Preminger-Institut, supra, § 50; Wingrove, supra, § 58, and Murphy v. Ireland, decision of July 10, 2003, Collected Decisions, 2003-IX, § 67). It is the European Court which must ultimately rule on the compatibility of the restriction in question with the Convention, and it will do so by assessing in the circumstances of a particular case, inter alia, whether the interference corresponded to a "pressing social need" and whether it was "proportionate to the legitimate aim pursued" (see, mutatis mutandis, Wingrove, supra, § 53).
45. In the present case, the Court notes first of all, as did the Paris Court of Appeals whose decision was partially overturned, that Petitioner’s article basically reproaches the encyclical The Splendor of Truth for elevating, among theological principles, the so-called doctrine of "fulfillment" of the Old Covenant by the New, and the superiority of the latter. Yet, according to the litigious article, such doctrine contains the seeds of anti-Semitism which facilitation the conception and fulfillment of the Holocaust.
46. According to the national courts, and particularly the Orléans Court of Appeals, whose judgment was upheld by the Court of Cassation, this is equivalent to "blaming Catholics and, more generally, Christians for the Nazi massacres". Thus, according to the appellate court, Christians are victims of the misdemeanor of defamation by virtue of their religious affiliation.
47. The Court cannot subscribe to this thesis.
48. The Court notes first that the defamation proceeding filed against Petitioner was brought by an association, the "General Alliance Against Racism and for the Respect of French and Christian Identity". It is not for the Court to rule on the representative nature of this group, nor on its vocation to defend the Catholic Church or Christianity generally. Nor is it this Court's place to assume the role of the national courts and determine whether the article in question directly injured the complainant association or the interests it purports to defend.
49. The Court next observes that, although Petitioner’s article criticized a papal encyclical and this the Pope’s position, such an analysis cannot be extended to the whole of Christianity which, as Petitioner points out, includes many different strains, several of which reject papal authority.
50. The Court finds that Petitioner intended to elaborate a thesis on the scope of effect of a dogma and on its possible relationship to the origins of the Holocaust. Petitioner thus made a contribution, by definition debatable, to a very vast ideological discourse already in progress (see paragraph 24 supra), without engaging in polemic that was gratuitous or far removed from the reality of contemporary thought.
51. By contemplating the harmful consequences of a doctrine, the litigious text thus was participating in the discussion of the various possible causes of the extermination of the Jews in Europe, a question undeniably of general interest in a democratic society. In this area, restrictions on freedom of expression require a narrow interpretation. While the question raised in the present case concerns a doctrine defended by the Catholic Church, and thus a religious subject, an examination of the litigious article shows that it does not contain attacks on religious convictions as such, but an idea Petitioner wished to express as a journalist and historian. In this regard, the Court considers that it is fundamental in a democratic society that the debate engaged relative to the origin of especially grave facts constituting crimes against humanity be able to be carried on freely (see, mutatis mutandis, Lehideux and Isorni v. France, decision of September 23, 1998, Collected Decisions 1998-VII, §§ 54 and 55). The Court has already had occasion to note that "the search for historical truth is an integral part of the freedom of expression", and "that it is not the Court's role to arbitrate" a basically historical question (see Chauvy et al. v. France, decision of June 29, 2004, § 69).
52. Although, as Petitioner himself concedes, the published text contains conclusions and expressions which may disturb, shock or even upset certain persons, the Court has consistently held that such ideas do not per se lose the benefit of freedom of expression (see, in particular, De Haes and Gijsels v. Belgium, decision of February 24, 1997, Collected Decisions 1997-I, § 46). Moreover, the article written by Petitioner was neither "gratuitously offensive" (see Otto-Preminger-Institut, supra, § 49), nor injurious (see İ.A. v. Turkey, no. 42571/98, § 29, September 13, 2005), and incites neither disrespect nor hatred. Furthermore, it in no way denies clearly established historical facts (see Garaudy v. France, no. 65831/01, ECHR 2003-IX).
53. In light of the foregoing, the justifications proffered in support of Petitioner's conviction are insufficient to persuade the Court that the interference in Petitioner’s exercise of his right to freedom of expression was "necessary in a democratic society"; in particular, his conviction on the charge of public defamation of the Christian community did not correspond to a “pressing social need".
54. As for the proportionality of the interference in question to the legitimate aim pursued, given the sanctions imposed, the Court notes that the nature and weight of sentences imposed are elements to be taken into consideration (see, for example, Pedersen and Baadsgaard v. Denmark, no. 49017/99, § 03, ECHR 2004). The Court must also employ great prudence where the measures or sanctions imposed by national authorities are likely to dissuade the press or authors from participating in the discussion of questions of legitimate general interest (see, mutatis mutandis, Jersild v. Denmark, decision of September 23, 1994, Series A no. 298, pp.25-26, § 35).
55. In the present case, Petitioner did not receive a penal sentence. With regard to the civil cause, he was ordered to pay 1 FRF in damages to the complainant association, and especially to publish a notice at his expense in a nationally circulated newspaper. Yet, although in principle such publication does not appear to be a measure especially restrictive of freedom of expression (Chauvy et al., supra, § 78), in this instance the mention of the commission of the misdemeanor of defamation surely has a chilling effect and the penalty seems disproportionate, given the importance of the discussion in which Petitioner legitimately desired to participate and the interest of which need not be revisited (see §§ 48 et 49 supra).
56. A violation of Article 10 of the Convention thus occurred.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
57. In accordance with Article 41 of the Convention,
"If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."
58. The Court notes that Petitioner, after the initial decision on admissibility, failed to submit any claim for just satisfaction within the allotted time.
59. In accordance with its consistent jurisprudence (see, in particular, Andrea Corsi v. Italy, no. 42210/98, July 4, 2002, Andrea Corsi v. Italy (amended opinion), no. 42210/98, October 2, 2003, Willekens v. Belgium, no. 50859/99, April 24, 2003, and Mancini v. Italy, no. 44955/98, ECHR 2001-IX), the Court does not award any compensatory sums where a monetary figure for damages and the necessary supporting documentation have not been submitted within the time period provided in Article 60 § 1 of the Rules.
60. Under the circumstances, the Court finds that Petitioner has not satisfied his obligations under Article 60 of the Rules. As no request for just satisfaction has been validly formulated, the Court holds that no indemnity should be awarded to Petitioner in this regard.
ON THE FOREGOING GROUNDS, THE COURT UNANIMOUSLY:
1. Finds a violation of Article 10 of the Convention; and
2. Holds that Article 41 of the Convention should not be applied.
