Baldassi and others v. France | 2020

Criminal convictions for urging Israel goods boycott cancelled

The first feeling is great joy. A joy to have seen through an 11-year fight with the support of many friends and many organisations.

Henri Eichholtzer, one of the protestors, writing about the European court's judgment for Association France Palestine Solidarité

Background

Eleven people were convicted for “inciting economic discrimination” after they protested in support of a boycott of Israeli goods in solidarity with Palestine.

In September 2009 and May 2010, the group “Collectif Palestine 68” staged two protests in a supermarket, exhibiting Israeli products, handing out flyers and, on the second occasion, presenting a petition for customers to sign.

The group formed part of an international campaign against Israel launched by the Palestinian-led movement Boycott, Divestment and Sanctions (BDS).

Not long after the protests, a public prosecutor summoned the protestors to appear before a court on criminal charges.

In December 2011, the court cleared the protestors of any wrongdoing.

However, two years later, an appeal court reversed the judgment, finding the protestors guilty of having “incited discrimination” against Israeli producers.

It gave each of them a €1,000 suspended fine and ordered them to jointly pay costs and damages to groups that had made complaints.

The protestors tried to invoke the European Convention on Human Rights (“ECHR”) in defence of their free speech, but the French Court of Cassation rejected their appeals in 2015.

Judgment of the European Court of Human Rights

The European court found that France had violated the protestors’ free speech.

It noted that, as the law was interpreted and applied in their case, any call for a boycott of goods based on their geographical origin was banned, “regardless of the substance, grounds or circumstances of such an initiative.”

This had led the French appeal court to conclude that the protestors’ call for a boycott had been illegal. It did not analyse their actions and remarks and so, in the European court’s view, had not established why their criminal conviction “was necessary in a democratic society”, as required by the ECHR.

The European court found that the need for detailed reasoning was even more essential because the protestors were ordinary citizens whose actions fell within the scope of political expression and formed part of a debate of general interest.

It also underlined that the protestors had neither been convicted for making racist or antisemitic statements nor for inciting hatred or violence.

The court awarded a total of €101,180 to the protestors, covering moral damages and legal costs and expenses.

...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...

Judgment of the European Court of Human Rights, September 2020

Follow-up

This decision of the European court marks a turning point in a period where, in France, a number of restrictions have been placed on freedom of expression. It restores to citizens the possibility to debate national and international questions and, if necessary, to call for a boycott.

Antoine Comte, lawyer for some of the protestors, quoted in Le Monde

Following the European court’s judgment, all eleven protestors applied to have their case re-examined in France.

In April 2022, the French Court of Cassation reopened the criminal proceedings, cancelled the protestors’ convictions and sent their case back to trial.

The French authorities reminded judges of the requirements concerning the reasoning of their decisions.

They also made public prosecutors aware that they should only prosecute those whose call for a boycott involves a real incitement to hatred or discrimination and not mere political speech and action.

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