Europäischer Gerichtshof für Menschenrechte, Baldassi and others v. France, Applications no. 15271/16, Urteil v. 11.6.2020 zu BDS

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Auszug:

74.  The Court will not call into question the interpretation of section 24 of the Law of 29 July 1881 on which the applicants’ conviction was based, according to which they had, within the meaning of that provision, caused discrimination on grounds of origin against the producers or suppliers of products from Israel by calling for a boycott of those products. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. The Court’s role is limited to verifying whether the interference which resulted from the applicants’ conviction for that offence can be regarded as “necessary in a democratic society” (see, for example, Lehideux and Isorni, cited above, § 50), that is to say, in particular, whether the reasons given to justify it are relevant and sufficient (see paragraph 61 above).

75.  The Court would note, however, that, as interpreted and applied in the present case, French law prohibits any call for a boycott of products on account of their geographical origin, regardless of the substance, grounds or circumstances of such an initiative.

76.  It further finds that, ruling on that legal basis, the Colmar Court of Appeal did not analyse the acts and statements in question in the light of those factors. It concluded generally that the call for a boycott constituted incitement to discrimination within the meaning of section 24, eighth paragraph, of the Law of 29 July 1881, on the basis of which the applicants had been prosecuted, and that the action “could not fall within the right to freedom of expression”.

77.  In other words, the domestic court did not establish that, in the circumstances of the case, the applicants’ conviction on account of their call for a boycott of products from Israel was necessary, in a democratic society, to achieve the legitimate aim pursued, namely the protection of the rights of others, within the meaning of the second paragraph of Article 10.

78.  The need for detailed reasoning was, however, all the more essential in the present case because it involved a situation in which Article 10 of the Convention required a high level of protection of the right to freedom of expression. On the one hand, the actions and remarks complained of concerned a subject of general interest, namely the State of Israel’s compliance with public international law and the human rights situation in the occupied Palestinian territories, and were part of a contemporary debate which was ongoing in France and throughout the international community. On the other hand, these actions and statements were a form of political and “militant” expression (see, for example, Mamère v. France, no. 12697/03, § 20, ECHR 2006-XIII). The Court has repeatedly emphasised that there is little scope under Article 10 § 2 of the Convention for restrictions on political expression or on debate on questions of public interest (see Perinçek, cited above, § 197, and the references therein).

79.  As the Court pointed out in Perinçek (ibid., § 231), it is in the nature of political speech to be controversial and often virulent That does not diminish its public interest, provided of course that it does not cross the line and turn into a call for violence, hatred or intolerance. That is also true of a call for a boycott, as observed by the Special Rapporteur on freedom of religion or belief in his report to the members of the United Nations General Assembly dated 20 September 2019 (paragraph 21 above), and by the Fédération internationale des ligues des droits de l’homme together with the Ligue des droits de l’homme in the observations they submitted as third-party interveners in the present case (see paragraph 55 above).

80.  The Court concludes that the applicants’ conviction was not based on relevant and sufficient reasons. It is not persuaded that the domestic court applied rules which adhered to the principles enshrined in Article 10 or that it based its decision on an acceptable assessment of the facts.

81.  Accordingly, there has been a violation of Article 10 of the Convention.