Genocide Denial Legislation Declared Unconstitutional by French Conseil Constitutionnel

The French Constitutional Council has declared recent legislation providing for criminalization of genocide denial to be unconstitutional. Under French law, the Constitutional Council may provide preliminary rulings on constitutionality of legislation. As is the style of the French Constitutional Council, the decision is laconic and does little more than state the basis of its finding.

The legislation in question made it a crime to deny the existence of genocides that have already been legally recognized. The Constitutional Council seems to have objected to the whole idea that genocide can be recognized by legislation, and said that this did not provide an acceptable normative basis for making an act criminal.

The French version is available on the website of the Council. I have prepared a rather amateurish translation:

1. Whereas the applicant deputies and senators have referred the Suppression of Contestation of Legally Recognized Genocides Act to the Constitutional Council;

2. Whereas section 1 of the impugned legislation adds section 24ter to the Freedom of the Press Act of 29 July 1881; this provision imposes imprisonment and a fine of 45,000 euro on anyone who “contests or minimizes in an outrageous manner”, by whatever means of expression that are employed, “the existence of one or several crimes of genocide defined by section 211-1 of the Penal Code and recognized as such by French law”; section 2 of the impugned act amends section 48-2 of the 29 July 1881 Act; it authorizes certain associations to become civil parties, in particular with respect to the consequences of the creation of this new crime;

3. Whereas the applicants claim that the impugned legislation violates freedom of expression proclaimed by article 11 of the Declaration of the Rights of Man and Citizen of 1789,  as well as the principle of legality set out in article 8 of the Declaration; that in punishing genocides recognized by French law, on the one hand, to the exclusion of other crimes against humanity, the right to equality is breached; that the applicant deputies furthermore contend that the legislator has exceeded his authority and breached the principle of separation of powers set out in article 16 of the 1789 Declaration; that in addition the principle of necessity of penalties proclaimed in article 8 of the 1789 Declaration is violated, as well as freedom of research and the principle that flows from article 4 of the Constitution by which activities may be exercised freely;

4. Whereas, in accordance with article 6 of the Declaration of 1789, “Law is the expression of the general will”; that as a consequence of this and of other constitutional norms relating to the object of the legislation, subject to exceptions set out in the Constitution, the purpose of law is to set out rules that must have normative force;

5. Whereas, pursuant to article 11 of the Declaration of 1789: “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law”; article 34 of the Constitution states: “Statutes shall determine the rules concerning: - civic rights and the fundamental guarantees granted to citizens for the exercise of their civil liberties”;  on this basis, legislation should provide for the exercise of free communication and freedom to speak, write and print; that it should also criminalize the abuse of the exercise of freedom of expression that threatens public order and the rights of others; however, freedom of expression and communication is so precious that its exercise is a condition of democracy and one of the guarantees of respect of other rights and freedoms; that violations of this freedom must be necessary and proportionate to the object that is being pursued;

6. Whereas a legislative provision whose purpose is to “recognize” genocide cannot, in itself, have the normative force that law requires; however, section 1 of the impugned act punishes contestation or minimization of the existence of crimes of genocide “recognized as such by French law”; that in so punishing the contestation of the existence and the legal qualification of crimes that it has itself recognized and qualified as such, the legislator has breached the constitution and freedom of expression and communication; consequently, and without it being necessary to consider other challenges to the legislation, section 1 of the impugned act is declared to violate the Constitution; section 2 cannot be severed and is therefore also in breach of the Constitution.

In its General Comment on article 19 of the International Covenant on Civil and Political Rights, issued last July, the United Nations Human Rights Committee stated:  

49.        Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression.[116. So called “memory-laws”, see communication No. , No. 550/93, Faurisson v. France. See also concluding observations on Hungary (CCPR/C/HUN/CO/5) paragraph 19.] The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events. Restrictions on the right of freedom of opinion should never be imposed and, with regard to freedom of expression, they should not go beyond what is permitted in paragraph 3 or required under article 20.

I note that the reference in the footnote to the Faurisson case is a mistake, as Faurisson does not support what paragraph 49 of the General Comment states. My suspicion is that paragraph 49 was altered during the deliberations of the Committee and that in the final draft the Committee forgot to remove the inappropriate reference to Faurisson.
Thanks to Laurent Pech.