Case: Bidart v. France
Judgement date: 12 November 2015
Topic: Terrorism and the European Convention on Human Rights
Aspect: Prevention of terrorism

Summary of the facts:
This case concerned the obligation imposed on the applicant, the former leader of the Basque separatist organisation Iparretarrak, in the context of his release on licence, to refrain from disseminating any work or audio-visual production authored or co-authored by him concerning the offences of which he had been convicted, and from speaking publicly about those offences.

Summary of the Court's findings:
The Court held that there had been no violation of Article 10 (right to freedom of expression) of the Convention. It noted in particular that the impugned measure was limited in time and concerned only the offences committed by the applicant. He had also been able to have the measure reviewed by the courts. The Court therefore found that, in imposing on the applicant, in the context of his release on licence, an obligation to refrain from disseminating any work or audio-visual production authored or co-authored by him concerning, in whole or in part, the offences of which he had been convicted, and from speaking publicly about those offences, the French courts had not overstepped their margin of appreciation.

The facts:
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1953 and lives in Béziers.
6. The applicant is the former head of the Basque separatist organisation Iparretarrak. After his detention in 1988, he was convicted several times: on 4 March 1991 he was sentenced to six years ’ imprisonment for criminal association with a view to preparing a terrorist offence; on 10 November 1992 he was sentenced to life imprisonment for murder in the framework of terrorist activity, killing two members of the State security police force ( “ CRS ” ); on 9 April 1993 he was sentenced to six years ’ imprisonment for armed robbery; on 9 June 1993 he was sentenced to life imprisonment for murder in the framework of terrorist activity, killing a gendarme; and on 31 March 2000 he was sentenced to twenty years ’ imprisonment for conspiracy to murder, complicity in murder and armed robbery.
7. By judgment of 1 February 2007 the Sentence enforcement division of the Paris Court of Appeal released him on licence from 14 February 2007 to 14 February 2014, ordering to follow a seven-year programme of assistance and supervision. The Government pointed out that the applicant was the first person sentenced to life imprisonment for offences linked to terrorism ever to have been released on licence.
8. The Sentence enforcement division reiterated in its judgment that the applicant ’ s release on licence would be accompanied by the following general obligations (Article 132-44 of the Penal Code): complying with the instructions of the sentence enforcement judge or of the social worker from the Prison rehabilitation and probation service; receiving visits from the latter and providing him or her with information or documents facilitating supervision of his livelihood and compliance with his obligations; informing the social worker of any job changes and, if such changes are liable to hamper compliance with his obligations, obtaining prior authorisation from the sentence enforcement judge; informing the social worker of any changes of address and of any travel lasting for more than two weeks, reporting back to the latter on his return; and obtaining the authorisation of the sentence enforcement judge for any foreign travel and for any change of job or of address liable to impede compliance with his obligations. The division added the following special obligations ( Article 132-45 [ 1 ], [ 3 ], [ 5 ] and [ 14 ] of the Penal Code) : exercising an occupation or following vocational education or training; residing in Béziers; continuing, in accordance with his means, to pay into the Guarantee Fund for the compensation of victims of terrorism; and refraining from possessing or carrying a weapon.
9. On 7 November 2007 the Criminal Chamber of the Court of Cassation dismissed the appeal on points of law lodged by the Public Prosecutor with the Paris Court of Appeal.
10. On 24 December 2007 the applicant took part in a peaceful demonstration outside Agen Prison in support of Basque detainees being held there. The media reported on that demonstration.
11. Consequently, the Paris Sentence Enforcement Court delivered a judgment on 14 May 2008 imposing additional special obligations on the applicant: refraining from attending, in the vicinity of a prison or other detention facility, any demonstration in support of persons detained for terrorist offences or of any association or movement which is committing or has committed terrorist acts (Article 135-45 [ 9 ] of the Penal Code); refraining from distributing any document or audiovisual material produced or co- produced by himself concerning, in whole or in part, an offence committed by himself, and refraining from discussing that offence in public (Article 132-45 [ 16 ] of the Penal Code).
12. That judgment was upheld by judgment of the Paris Court of Appeal on 2 October 2008. However, the latter judgment was quashed by judgment of the Criminal Chamber of the Court of Cassation on 10 June 2009, on the grounds that the sentence enforcement court did not have jurisdiction to modify the obligations for release on licence, for which matter the sentence enforcement judge held jurisdiction.
13. On 18 February 2010 the Public Prosecutor ’ s Office requested that the sentence enforcement judge of the Regional Court of Paris add both the aforementioned obligations to the applicant ’ s list of obligations for release on licence, as well as a prohibition on “contacting any person actively engaged in promoting Basque separatism or supporting detainees convicted of or charged with terrorist acts pursuant to Articles 421-1 to 421-6 of the Penal Code, particularly with a view to expressing support for such detainees ( Article 132-42 [ 12 ] of the Penal Code ) ”.
14. By judgment of 28 June 2010 the sentence enforcement judge decided to impose on the applicant the obligation set out in Article 132-45 ( 16 ) of the Penal Code : “ refraining from distributing any document or audiovisual material produced or co- produced by himself concerning, in whole or in part, the offence committed, and refraining from discussing that offence in public, whereby [ these ] provisions [ are ] applicable only in cases of convictions for serious offences of intentional homicide, sexual assault or sexual abuse ”. He noted that in its judgment of 1 February 2007 the Paris Court of Appeal had described the applicant “ as a calm, respectful person who spent most of his time writing his memoirs”. The judge inferred that “although it is unclear what the word ‘ memoirs ’ entails, it is quite possible that Mr Bidart might be tempted to publish his memoirs and make statements on the offences of which he was convicted ”. Nor did the judgment go into further detail on that point. It explained, however, that “during the adversarial proceedings Mr Bidart was reminded that the prosecution had requested the prohibition only of writings or statements connected with the offences of which he had been convicted”.
15. That judgment was upheld by judgment of the Paris Court of Appeal on 31 August 2010, stating that the obligation in question “ merely prohibited commenting on or condoning the offences committed ” and “ that the obligation was not a disproportionate measure in the light of the need to protect public order, nor does it prevent Philippe Bidart from expressing his political convictions ”.
16. By judgment of 30 March 2011 the Criminal Division of the Court of Cassation dismissed the appeal on points of law lodged by the applicant, on the grounds that in its judgment the Court of Appeal had properly applied Article 132-45 [ 16 ] of the Penal Code, in compliance with the legal texts and conventions relevant to the applicant ’ s appeal ( including Article 10 of the Convention).
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Relevant law and the Court's assessment:
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
22. The applicant complained that his freedom of expression had been restricted in the framework of his release on licence. He relied on Article 10 of the Convention, which reads as follows:
“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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
23. The Government contested that argument.
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B. Merits
1. The parties
a) The applicant
25. The applicant submitted that when the Paris Court of Appeal had initially decided to release him on licence, it had not considered it necessary to impose any obligations affecting his freedom of expression, that he had always scrupulously honoured all the obligations imposed on him in the framework of his release on licence, and that he had at no stage since his release condoned the offences of which he had been convicted. In his view, that fact demonstrated that there was no need for such a restriction, whose disproportionality also stemmed from its general nature, which afforded the judicial authorities a very wide margin of appreciation. In fact, the restriction was tantamount to banning him from voicing any opinion on the current political situation in the Basque Country, since the offences of which he had been convicted had been committed in that context.
26. The applicant took the view that despite the careful language used by the French judges, the real purpose of the obligation in question was to prohibit him from uttering any statement concerning the history and the political context of the Northern Basque Country. It was therefore an attempt unjustifiably to infringe his freedom of opinion and expression, particularly as it transpired from Article 729 of the Code of Criminal Procedure that only measures aimed at the convicted person ’ s rehabilitation and prevention of recidivism could be imposed in the framework of release on licence.
b) The Government
27. The Government agreed that the prohibition imposed on the applicant amounted to an interference in the exercise of his right to freedom of expression.
28. They considered, however, that that interference was prescribed by law, that is to say in Article 132-45 ( 16 ) of the Penal Code, which met the requirements of precision and clarity set out in the case-law of the Court, particularly since the sentence enforcement judge and the Court of Appeal had pointed out that the measure imposed “merely prohibit[ed] commenting on or condoning the offences committed” and the applicant had not been banned from “expressing his political convictions ”. As regards the meaning of the word “ condoning ” ( apologie, in French), we might refer to the definition given in the Larousse dictionary : “commending or justifying something presented in a document or a speech”; “speech or document glorifying an act expressly prohibited by law ( e.g. condoning murder or racial hatred ) ”.
29. The Government submitted that the interference had pursued several of the legitimate aims listed in the second paragraph of Article 10 : the protection of public safety, prevention of disorder or crime, and the protection of the reputation or rights of others, namely those of the victims of the crimes committed by the applicant and of their families. On the latter point, they emphasised that the applicant ’ s release on licence had caused much emotion not only among the victims ’ families but also, more broadly, within the local population, particularly because, on the one hand, on leaving the prison the applicant had given a speech in Basque stating that his joy at being free was not complete because the French State did not recognise the Basque Country, and on the other hand, a few months later he had taken part in a demonstration in support of Basque prisoners, during which he had denounced the injustice of the situation of those political prisoners and stated that they should be released. According to the Government, therefore, the aim had been to prevent any act or comment likely to offend the victims ’ families and any further criminal activity. With reference to the judgment in the case of Leroy v. France (no. 36109/03, § 36, 2 October 2008), the Government observed that in the Court ’ s view, the legitimacy of the aims pursued by the interference should be assessed in the light of the sensitivity of the endeavour to combat terrorism and the need for the authorities to remain vigilant about acts liable to increase the attendant violence.
30. The Government further considered that the interference had been necessary in a democratic society. They referred to Zana v. Turkey (25 November 1997, § 55, Reports of Judgments and Decisions 1997 ‑ VII), where the Court had stated that it had, with due regard to the circumstances of each case and a State ’ s margin of appreciation, to ascertain whether a fair balance had been struck between the individual ’ s fundamental right to freedom of expression and “a democratic society ’ s legitimate right to protect itself against the activities of terrorist organisations”. They pointed out that the Court had already had occasion to consider the situation in the Basque Country in the cases of Leroy (cited above, § 38) and Association Ekin v. France (no. 39288/98, ECHR 2001 ‑ VIII).
31. As regards the proportionality of the measure, they emphasised, first of all, that Article 132-45 ( 16 ) of the Penal Code limited the scope of the impugned restriction to specific offences considered as extremely serious and that the provision only applied to persons who were on probation, were serving a semi-custodial sentence or had been released on licence, and that that restriction was implemented strictly in the framework and context of release on licence, that is to say in the context of individualised penalties aimed at the early release of a convicted person under certain conditions, with the fundamental aim of facilitating his rehabilitation. As that aim required the person concerned to stand back from the offences which he had committed, it had not been disproportionate to expect the applicant to refrain from any circulation of writings or documents or any public speech amounting to commenting on or condoning offences which had offended large sections of the general public. Furthermore, regard should be had to the fact that the impugned obligation had been imposed on the applicant following his participation in a demonstration outside Agen Prison in support of Basque prisoners, which the domestic courts, availing themselves of their discretionary powers, had regarded as conduct incompatible with his rehabilitation as it had been liable to expose him to risks of recidivism and to cause public disorder. According to the Government, the obligation had been linked to the situation and conduct of the applicant, who had held a special position in the Basque terrorist organisation: owing to the influence of his words, it had been necessary to take precautions to ensure that others did not interpret his words and behaviour as a call to further violence.
32. Secondly, according to the Government, the impugned restriction had been strictly limited in its purpose because it had only covered utterances on the offences of which the applicant had been convicted. Moreover, although the applicant had run the risk of having his release on licence revoked in the event of non-compliance with that obligation, such a sanction, which was left to the discretion of the judges, would not have been automatic and could only have been a partial revocation. They added that the revocation had been limited in time because it ended, as required, on expiry of the release licence.
2. The Court
33. The Court notes that in the framework of the applicant ’ s release on licence the domestic courts had, in particular, imposed on him the obligation to refrain from circulating any document or audiovisual material, produced or co-produced by himself, concerning the offences of which he had been convicted, and to refrain from making any public reference to those offences. That is obviously a restriction on the exercise of his freedom of expression within the meaning of Article 10 of the Convention, which fact, moreover, the Government do not deny. Such an interference infringes that provision unless it is “prescribed by law ”, pursues one or more of the legitimate aims set out in Article § 2 and is “necessary” “ in a democratic society” to attain those aims.
34. The Court first of all notes that the legal basis of the restriction is provided by Article 731 of the Code of Criminal Procedure and Article 132-45 ( 16 ) of the Penal Code, which state, in particular, that the sentence enforcement judge can make the release on licence of a person convicted of serious offences of intentional homicide subject to an obligation to “ refrain from circulating any document or audiovisual material, produced or co-produced by himself, concerning the offence committed and to refrain from making any public reference to that offence”. The Court consequently concludes that the restriction was “prescribed by law ”.
35. Secondly, it notes that the Government refer to several of the “ legitimate aims ” listed in Article 8 § 2 : the protection of public safety, prevention of disorder or crime, and the protection of the reputation or rights of others. It observes, however, that the domestic courts concentrated solely on the fact that the impugned measure was necessary for the prevention of “ public disorder ” (see paragraphs 16 and17 above). That being the case, the Court takes note of the Government ’ s explanations to the effect that the release on licence of the applicant, a former head of the Basque separatist organisation Iparretarrak who had been sentenced to life imprisonment for the murder of three persons in a terrorist context, had caused widespread emotion among the victims ’ families and, more broadly, within the local population. It observes, as stated by the Government, that the impugned measure was taken a few months after the beginning of the applicant ’ s release on licence, following his participation in a peaceful demonstration outside Agen Prison in support of Basque prisoners who were held there, which participation had attracted media coverage. The Court also understands why, in that context, the judicial authorities might have feared that the applicant would place himself in a position conducive to possible recidivism. It therefore accepts, having regard to the situation prevailing in the Basque Country ( see Association Ekin, cited above, § 48), that the restriction complained of pursued one of the aims listed in Article 10 § 2, namely “ prevention of disorder or crime ”.
36. The fundamental principles as regards the necessity “ in a democratic society” of an interference with the exercise of freedom of expression are well established in the Court ’ s case-law, and may be summarised as follows ( see, among other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Case Reports 1998 ‑ VI; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012; Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013; Morice v. France [GC], no. 29369/10, § 124, 2 3 April 2015; and Delfi AS v. Estonia [GC], no. 64569/09, § 131, ECHR 2015 ):
“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...
(ii) The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10.
(iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ... ”
37. In Leroy ( cited above, § 37), relating to the publication of a satirical drawing in a Basque weekly magazine, and Zana ( cited above, § 55), referred to by the Government, the Court pointed out that those principles apply to measures taken by national authorities to maintain national security and public safety as part of the fight against terrorism, and that it must, with due regard to the circumstances of each case and a State ’ s margin of appreciation, ascertain whether a fair balance has been struck between the individual ’ s fundamental right to freedom of expression and a democratic society ’ s legitimate right to protect itself against the activities of terrorist organisations. These considerations are relevant to the present case mutatis mutandis.
38. The Court has also emphasised that although Article 10 does not as such prohibit prior restraints on publication or bans on distribution of “information” or “ideas”, the dangers which restrictions of that kind pose for a democratic society are such that they call for the most careful scrutiny on the part of the Court ( see, in particular, Association Ekin, cited above, § 56, and Éditions Plon v. France, no. 58148/00, § 42, ECHR 2004 ‑ IV). That is particularly true in the case of measures to prevent the distribution of comments which are only potential at the time of adoption of the former.
39. In the present case, therefore, the Court is concerned by the fact that when deciding to impose the impugned restriction on the applicant, the sentence enforcement judge did not base his decision on the latter ’ s specific comments or writings, but on potential comments or writings, stating that “ it [was] quite possible that [he] might be tempted to publish his memoirs and make statements on the offences of which he was convicted ”.
40. The Court further considers it regrettable that the domestic judge neither balanced the competing interests nor fully characterised the risk of public disorder.
41. That being the case, the Court notes that decisions to apply Article 132 ‑ 45 of the Code of Criminal Procedure are not administrative but judicial, because they are taken by the sentence enforcement judge and the convicted persons in question can lodge an ordinary appeal, followed by an appeal on points of law. It notes that the applicant availed himself of that right since he appealed to the Paris Court of Appel against the judgment imposing the impugned obligation – emphasising, in particular, that that obligation merely prohibited him commenting on or condoning the offences committed, that it was not a disproportionate measure in the light of the need to protect public order, and that it in no way prevented him from expressing his political convictions – and that he subsequently appealed on points of law to the Court of Cassation ( see paragraphs 16 and 17 above ). He therefore benefited from judicial review providing genuine safeguards against abuse, to which procedure the Court attaches great importance ( see Association Ekin, cited above, § 61).
42. The Court further notes that the measures taken pursuant to paragraph 16 of that Article are limited in three respects. They are limited with regard to the persons on whom they can be imposed, as they apply solely to persons convicted of specific crimes or offences ( culpable injury of life, sexual assault or sexual abuse ). They are also limited not only in time (ending at the same time as the period of release on licence ) but also in their purpose, since they can only affect the person ’ s freedom of expression on the offence which he or she had committed. In the present case, moreover, the Paris Court of Appeal very clearly reiterated in its judgment of 31 August 2010 that the restriction imposed on the applicant “ merely prohibited commenting on or condoning the offences committed ” ( see paragraph 16 above ). It would therefore seem that, contrary to his allegations, the applicant retained the right to express his views on the Basque question, provided that he did not mention the offences of which he had been convicted.
43. When the Court assesses an interference with the rights secured under Article 10, it also attaches great importance to the limited nature of the measure adopted ( see, for example, Donaldson v. the United Kingdom (dec.), 56975/09, §§ 30-31, 25 January 2011).
44. Furthermore, the present case should also been seen in the light, mutatis mutandis, of the case of Nilsen v. the United Kingdom (dec.) (no. 36882/05, 9 March 2010), in which, relying on his freedom of expression, a prisoner complained of the fact that the manuscript of his autobiography had been confiscated on the ground, in particular, that it had gone into detail on the crimes of which he had been convicted. While reiterating that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, and in particular the right to freedom of expression, and any restriction must be specifically justified in each case, the Court found that the complaint under Article 10 was manifestly ill-founded owing, in particular, to the fact that the impugned measure had not amounted to a complete restriction on the exercise of the rights set out in that provision.
45. Finally, the Court cannot overlook the context in which the applicant ’ s freedom of expression was restricted, that is to say that the decision was taken to restrict that right in the framework of the early release of a major, well-known figure in a terrorist organisation who had been sentenced to life imprisonment for murders committed in a terrorist context, which early release, as already mentioned in paragraph 35 above, had caused considerable emotion among the victims ’ families and, more broadly, within the local population.
46. All these factors lead the Court to accept that in imposing on the applicant, in the framework of his release on licence, the obligation to refrain from distributing any document or audiovisual material produced or co-produced by himself concerning, in whole or in part, the offences of which he was convicted, and to refrain from making any public reference to those offences, the domestic courts did not exceed the margin of appreciation available to them.
47. Therefore, there was no violation of Article 10 of the Convention.