28 No. 67 JUSTICE constitutes a nation within the meaning of the applicable legal indictment provisions and of international law. Moreover, according to the Court of Appeal, incitement to discrimination does not fall within the right to freedom of opinion and expression when it constitutes a positive act of rejection, manifested by incitement to differential treatment of a category of persons – in this case, the producers of goods in Israel. In two rulings of October 20, 2015,11 the Criminal Chamber of the Court of Cassation upheld the analysis of the Court of Appeal, which had“correctly”noted that the legal conditions of the offense provided for in Article 24(8) of the Law of July 29, 1881 were met and that the exercise of freedom of expression, proclaimed by Article 10 of the Convention, could be subject, pursuant to the second paragraph of that text, to restrictions or sanctions constituting, as in the present case, measures necessary in a democratic society for the preservation of order and the protection of the rights of others. The applicants then referred their case to the European Court of Human Rights. Up until then, the Court only rarely had occasion to examine the question of the compliance of a call to boycott with Article 10 of the Convention, notably in the Willem v. France case. The Baldassi ruling is a first precedent, as the Court qualified the boycott as a“means of expressing protesting opinions,” while recalling the limits not to be exceeded in the context of Article 10. In its analysis of whether the interference (here constituted by the conviction of the applicants) was justified, the Court proceeded in three stages. i) The Court rejected the precedent-setting nature of the Willem judgment, in which it had found that there had been no violation of Article 10 of the Convention, after noting that the applicant had not been convicted for his political opinions but for incitement to a discriminatory act. In the Baldassi case, on the other hand, the applicants were private citizens who are not subject to the duties and responsibilities of a mayor’s office, and whose influence on consumers is not comparable to that of a mayor in the services of his municipality; and the Court considered that the applicants had clearly carried out the boycott actions with a view to provoke or stimulate debate among consumers of supermarkets, which led to the proceedings which they were complaining about before the Court. (ii) After stating that Article 10 of the Convention “leaves little room for restrictions on freedom of expression in the field of political discourse or matters of public interest.12 Political discourse is by nature often virulent and controversial. It is nevertheless in the public interest, unless it degenerates into a call for violence, hatred or intolerance,” the Court emphasized that the applicants had not been convicted of making racist or antisemitic statements or of inciting hatred or violence, nor of being violent or causing damage. Thus, according to the Court, the call for a boycott of products, in this case from the State of Israel, can only constitute an offense if there is evidence of racist, antisemitic or violent acts or statements that would“degenerate” into the call to boycott.13 In France, racist or antisemitic statements constitute offenses which are prohibited by criminal law and punished according to their seriousness;14 when such statements are publicly held, the penalties are more severe.15 Article 132-76 of the Criminal Code defines the aggravating circumstance of racism or antisemitism: “The penalties incurred for a crime or offense are increased when the offense is committed because of the victim’s actual or supposed membership or nonmembership of a particular ethnic group, nation, race or religion.”More specifically, the Law of July 29, 1881, on the freedom of the press, defines several offenses against racist or antisemitic speech. (iii) Without calling into question the interpretation of the law on which the applicants’ conviction was based, namely incitement to economic discrimination, the Court finally examined the grounds on which the French courts had convicted the applicants. It noted that, as interpreted and applied in this case, French law prohibits any call for a boycott of products based on their geographical origin, regardless of the content of such a call, its 11. Cass. Crim. Oct. 20, 2015, no. 14-80.020 and 14-80.021 (two judgments). 12. Castells v. Spain, ECtHR, §43, April 23, 1992; Wingrove v. UK, ECtHR, §58, Nov. 25, 1996. 13. This position was already taken by the highest courts in the U.S., Great Britain and Germany, which have recognized the right of citizens to promote and practice boycotts of products originating from a state or group of persons whose policies or practices are criticized in the name of human rights or international law. 14. Art. R. 625-7 of the French Criminal Code: Non-public incitement to discrimination, hatred or violence against a person or a group of persons because of their origin or their membership or non-membership, real or assumed, of a specific ethnic group, nation, alleged race or religion is punishable by a fine of 1,500 euros. 15. Law on Freedom of the Press, July 29, 1881, Art. 24(8): one year’s imprisonment and a fine of 45,000 euros.
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