Last Updated on September 2, 2021 by LawEuro
Information Note on the Court’s case-law 254
August-September 2021
Z.B. v. France – 46883/15
Judgment 2.9.2021 [Section V]
Article 10
Article 10-1
Freedom of expression
Conviction of the applicant for having slogans with a terrorist connotation printed on a T-shirt worn at his request by his three-year-old nephew at nursery school: no violation
Article 17
Conviction of the applicant for having slogans with a terrorist connotation printed on a T-shirt worn at his request by his three-year-old nephew at nursery school: admissible
Facts – The applicant was convicted for the offence of glorifying crimes of wilful killing on account of slogans with terrorism connotations, “I am a bomb” and “Jihad, born on 11 September”, displayed on a T-shirt that he had given his three-year-old nephew, referring to the child’s forename and date of birth. The T-shirt was worn by the boy in a nursery school.
Law – Article 10
(a) Admissibility – Notwithstanding the domestic courts’ characterisation of the offence as glorification of crimes of wilful killing, the slogans themselves did not suffice to show, in an immediately evident manner, that the applicant had been seeking by this means to destroy any Convention rights and freedoms and thus could not in itself engage Article 17. The Court had previously found that an “offence against the memory of the victims of the 11 September attacks” did not entail in itself that the content of the impugned remarks, concerning those attacks, could not be examined in the light of the right to freedom of expression.
Accordingly, the present application did not constitute an abuse of rights for the purposes of Article 17 and it was not incompatible ratione materiae with the Convention provisions. The Government’s preliminary objection thus had to be rejected. This conclusion could not, however, prevent the Court from relying on Article 17 in order to interpret Article 10 § 2 in assessing whether the interference had been necessary.
Conclusion: admissible.
(b) Merits – The criminal conviction complained of constituted an interference with the applicant’s right to freedom of expression. It was prescribed by law and pursued the legitimate aims of preventing disorder of crime.
The applicant had knowingly devised the slogans, relying on the polysemic nature of the word “bomb”, which could refer, in colloquial French, to the physical characteristics of an attractive person, while associating this description with his nephew’s identity.
The slogans could not be regarded as participating in a debate of general interest in relation to the attacks of 11 September 2001 or other subjects. Moreover, the applicant did not claim that he had sought to contribute to or prompt such a debate. The State’s margin of appreciation in the present case was thus broader.
The general context of terrorist attacks in France, however serious, could not in itself justify the interference at issue in the present case. However, the Court could not ignore the importance and weight of that general context. Although more than eleven years separated the attacks of 11 September 2001 from the events giving rise to the present case, the fact remained that the slogans at issue had been displayed only a few months after other terrorist attacks, which had resulted in the death of three children in a school. The passage of time could not be regarded as having diminished the significance of the message at issue. The fact that the applicant had no links with any terrorist group and did not espouse a terrorist ideology could not detract from the significance of that message either.
As to the specific context in which the slogans had been made public, the Court of Appeal had noted that a three-year-old child, who was the unwitting bearer of the offending message, had been instrumentalised without any possible awareness of the fact, and that the message had been disseminated not only in “a public place” but also on the “premises of a school” where young children were present.
In addition, the T-shirt bearing the slogans at issue was not directly visible to third parties but was discovered when the child was being dressed by adults. Nor was it accessible to the general public, since it was worn only on school premises. The message could thus only be read by two adults. While the Court could not speculate on the exact nature of the applicant’s intentions on this point, he had not denied that he had specifically asked his nephew to wear the T-shirt in question at school or that he had intended to share its message. On the contrary, he had presented it as a humorous gesture.
The applicant could not have been unaware of the particular connotation – over and above the mere provocation or bad taste on which he relied – of such slogans on the premises of a nursery school, shortly after attacks that had claimed the lives of children in another school and in the context of a proven terrorist threat.
The Court saw no serious reason to substitute its own assessment for that of the domestic courts, which had been careful to assess the applicant’s guilt based on the assessment criteria defined by the Court’s case-law, having weighed in the balance the various interests at stake. The grounds on which the applicant’s conviction had been based, namely to prevent the glorification of mass violence, were both “relevant” and “sufficient” and in this sense it had met a pressing social need.
That being said, in spite of the fact that the advocate-general’s opinion, referring as it did to the emotion and tensions aroused by the offending message and its impact on social harmony, had contributed to a better understanding of the resolution of the case, a more developed reasoning would have made the Court of Cassation’s decision more accessible and easier to follow as regards the applicant’s argument under Article 10.
Lastly, the sanction imposed on the applicant, a suspended two-month prison sentence and a fine of EUR 4,000, had not been disproportionate to the legitimate aim pursued.
Accordingly, having regard to the specific circumstances of the present case, the impugned interference could be regarded as “necessary in a democratic society”.
Conclusion: no violation (unanimously).
(See also Garaudy v. France (dec.), 65831/01, 26 June 2003, Legal summary; Leroy v. France, 36109/03, 2 October 2008, Legal summary; Hizb Ut-Tahrir and Others v. Germany (dec.), 31098/08, 12 June 2012, Legal summary; Perinçek v. Switzerland [GC], 27510/08, 15 October 2015, Legal summary; and Ayoub and Others v. France, 77400/14 et al., 8 October 2020, Legal summary)
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