French comedian convicted of publicly insulting Jews fails in article 10 appeal to Strasbourg

At the end of a show on 26 December 2008 in Paris, comedian Dieudonné M’Bala M’Bala invited academic Robert Faurisson – who has been convicted a number of times in France for negationist and revisionist opinions, such as the denial that gas chambers existed in concentration camps – onto the stage.

He awarded him a “prize for unfrequentability and insolence”.

The prize, which took the form of a three-branched candlestick with an apple on each branch, was awarded to him by an actor wearing what was described as a “garment of light” – a pair of striped pyjamas with a stitched-on yellow star bearing the word “Jew”.

The actor played the part of a Jewish deportee in a concentration camp.

The incident was recorded by the police. On 29 December 2008 a preliminary investigation was opened.

On 27 March 2009 the public prosecutor summoned Mr M’Bala M’Bala to appear before the Paris tribunal de grande instance on a charge of public insults directed at a person or group of persons on account of their origin or of belonging, or not belonging, to a given ethnic community, nation, race or religion, specifically in this case persons of Jewish origin or faith, by one of the means provided for in section 23 of the law of 29 July 1881 on freedom of the press.

On 27 October 2009 the Paris court found him guilty as charged and sentenced him to a fine of €10,000, awarding a token euro in damages to each civil party.

In a judgment of 17 March 2011 the Paris Court of Appeal upheld the judgment.

The Court of Cassation dismissed his appeal on 16 October 2012.

The ECtHR found that during the offending scene the performance could no longer be seen as entertainment but rather resembled a political meeting, which, under the pretext of comedy, promoted negationism through Robert Faurisson’s appearance and the degrading portrayal of Jewish deportation victims faced with a man who denied their extermination.

In the court’s view, the performance which, even if satirical or provocative, did not fall within the protection of article 10 of the European Convention on Human Rights (ECHR), but was, rather, a demonstration of hatred, anti-Semitism and support for Holocaust denial.

Disguised as an artistic production, it was in fact as dangerous as a head-on and sudden attack, and provided a platform for an ideology which ran counter to the values of the Convention.

The court concluded that Mr M’Bala M’Bala had sought to deflect article 10 from its real purpose by using his right to freedom of expression for ends which were incompatible with the letter and spirit of the Convention and which, if admitted, would contribute to the destruction of Convention rights and freedoms.