PROCEDURE

The case originated in an application (no. 26118/10) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Hervé Eon (“the applicant”), on 12 April 2010.

The applicant was represented by Mr D. Nogueres, a lawyer practising in Paris. The French Government (“the Government”) were represented by their Agent, Ms E. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs.

The applicant alleged, in particular, a violation of Article 10 of the Convention.

On 15 April 2011 notice of the application was given to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1952 and lives in Laval.

On 28 August 2008, during a visit to Laval by the President of France, the applicant waved a small placard reading “Casse toi pov’con” (“Get lost, you sad prick”) as the President’s party was about to pass by.

The applicant was making an allusion to a much publicised phrase which the President himself had uttered on 23 February 2008 at the International Agricultural Show in response to a farmer who had refused to shake his hand. The phrase had given rise to extensive comment and media coverage and had been widely circulated on the Internet and used as a slogan at demonstrations.

The applicant was immediately stopped by the police and taken to the police station. He was prosecuted by the public prosecutor for insulting the President, an offence under section 26 of the Act of 29 July 1881 (see paragraph 16 below). A summons to appear before the criminal court was handed to him later that day.

In a judgment of 6 November 2008 the Laval tribunal de grande instance found the applicant guilty of insulting the President and fined him 30 euros (EUR), a penalty which was suspended. The court held as follows: “... On the day of the President’s visit ... the defendant ... saw fit to wave a small placard containing an exact copy, served cold, of a famous retort prompted by a direct affront. If the defendant had not intended to cause offence, but solely to give an incongruous lesson in manners, he would surely have preceded the phrase ‘casse toi pov’con’ with words to the effect ‘you shouldn’t say’. Having adopted the phrase strictly as his own, he cannot reasonably maintain that he had no intention of causing offence. The apparently underlying issue of double standards does not even arise, since the purpose of the law is to protect the office of President, and Mr Eon, as an ordinary citizen, cannot claim the right to be treated on an equal footing. The offence of insulting the President of the French Republic has therefore been fully made out ...” As to the sentence, the court noted that in view of the applicant’s circumstances and modest income (EUR 450 per month), it was appropriate to give him a simple warning in the form of a fine described by the judges as “a matter of principle”.

The applicant and the public prosecutor both appealed.

In a judgment of 24 March 2009 the Angers Court of Appeal upheld the lower court’s judgment in its entirety. On the issue of the applicant’s guilt, it set out its reasoning as follows: “As to the question of guilt: Actus reus of the offence The definition in the 1959, 2002 and 2006 editions of Le Petit Larousse is almost unchanged: ‘insult [offense] is a concept defined as a remark or action which undermines a person’s dignity or honour; in law, it specifically denotes an affront to a head of State (1959) or a public affront to the President of France ... constituting a criminal offence’ (2006). It is accepted in the case-law that the actus reus of the offence is any insulting or disparaging expression or any defamatory insinuation that is liable to undermine the President’s honour, dignity or reputation, either in the performance of his official duties or in his private life. There is no need for lengthy discussion of the fact that describing the President as a ‘sad prick’ [‘pauvre con’] amounts to insulting him. The small placard containing the phrase in question is indisputably a form of publicly conveying a message, which can take place by means of placards or posters on public display (section 23 of the 1881 Act). Accordingly, the actus reus of the offence has been made out. Mens rea of the offence The expression ‘casse toi pov’con’, which the first-instance judges described as a ‘famous retort’, does not obviate the need for an examination of the insulting nature of the phrase, which has not passed into the public domain and hence has not entered general usage or lost any insulting connotations it might have had. In other words, the accused cannot maintain that he was acting in good faith. In this connection, the court observes that Mr Hervé Eon is an activist and a former Socialist elected representative in the département of Mayenne, who had recently fought a long-running campaign actively supporting a Turkish family residing unlawfully in national territory; several days before the head of State’s visit to Laval, this political battle had ended in a resounding failure for the support committee as the family had been deported. Mr Eon explained to the court that at the time of the events he had been feeling bitter, to say the least. Accordingly, his political involvement (as corroborated by the fact that the accused called a senator as a witness) and the very nature of the phrase used, which was wholly premeditated, conclusively rule out any notion of good faith. The court will therefore endorse the reasoning of the first-instance judges, who found that the accused could not reasonably maintain that he had no intention of causing offence. The offence is therefore established in terms of both actus reus and mens rea as outlined above. The first-instance judges were thus correct in concluding from all these factors that the accused should be found guilty. ...” The Court of Appeal further noted that the applicant had declined to apologise, which meant that he could not be given a discharge. It observed that the first-instance court had found that a simple warning was required and had given him a suspended fine of EUR 30 as a matter of principle. It noted that the applicant had a previous conviction for destroying genetically modified crops. Accordingly, it concluded that the penalty imposed was entirely appropriate in view of the nature of the offence and the applicant’s character.

The applicant appealed on points of law to the Court of Cassation. He applied to the Court of Cassation’s Legal Aid Board for legal aid. In a decision of 14 May 2009 the Legal Aid Board observed that the applicant’s resources were below the statutory limit but refused his application, holding that no arguable ground of appeal could be made out. The applicant appealed to the judge delegated by the President of the Court of Cassation, challenging the decision to refuse legal aid in the absence of an arguable ground of appeal. He submitted as follows: “In the case between myself and the public prosecutor’s office, the reason for my appeal on points of law was obviously not the amount of the penalty but the question of the fundamental principle of freedom of expression and the concept of insulting the head of State. By not granting me legal aid, you are preventing me from lawfully exercising my rights in relation to a fundamental freedom.”

In an order of 15 June 2009 the President of the Court of Cassation upheld the refusal to grant legal aid in the absence of any arguable grounds of appeal.

The applicant nevertheless pursued his appeal on points of law to its conclusion. The Government stated that on 15 September 2009 the law firm instructed to represent him had sent the Court of Cassation a letter indicating that it did not intend to file further pleadings in support of the appeal; nor had the applicant filed any pleadings himself. The applicant submitted that in view of his inability to pay the fees charged by the law firm, the firm had informed him that it would not file any pleadings.

In a judgment of 27 October 2009 the Court of Cassation declared the appeal inadmissible, finding that there were no grounds to warrant its examination.