Lois Mémorielles et Liberté d’Expression: De la controverse à l’ambiguïté ('Historical Memory Laws' and Freedom of Expression: From Controversy to Ambiguity)

Abstract

This case note (in French) offers a critical assessment of the French bill, which made it a criminal offence to deny that genocide was committed against Armenians by Ottoman Turks in 1915 and which was subsequently turned down by the French Constitutional Court on the grounds that the French Parliament violated the constitutional right to free speech by punishing anyone contesting the existence of crimes that the French Parliament itself recognized or qualified as such. It is submitted that this controversial bill is indeed not compatible with freedom of expression as guaranteed under the French Constitution. However, it is also argued that the Court’s reasoning is both excessively succinct and unacceptably ambiguous and confusing. Instead, the Court should have clearly and comprehensively explained that any legislative provision, which aims to punish the denial of any genocide recognized by the sole French Parliament, cannot be held 'necessary in a democratic society' within the meaning of Article 10 of the ECHR. And while the Gayssot Act, which punishes the denial of the Holocaust may also be described as a pure “content-based” restriction on freedom of expression, it is submitted that following the reasoning defended in this paper would not automatically lead to its annulment: On the one hand, the Holocaust has been the subject of a final ruling by the Nuremberg International Military Tribunal and on the other hand, Holocaust denial clearly constitutes an abuse of right within the meaning of Article 17 ECHR as Holocaust deniers tend to be animated by racial hatred and anti-democratic ideology.