29 Fall 2021 motivation, and the circumstances in which it is made. However, the Court considered that, in ruling on this legal basis, the local court did not provide a detailed statement of reasons, which was even more essential in the present case because Article 10 of the Convention requires a high level of protection of the right to freedom of expression (§78). Indeed, on the one hand,“the actions and statements of which the applicants were accused concerned a subject of general interest, namely respect for public international law by the State of Israel and the human rights situation in the occupied Palestinian territories, and were part of a contemporary debate that was open in France and throughout the international community;”16 on the other hand, these actions and words “were political and militant expression.”17 The Court concluded that the applicants’ conviction was not based on relevant and sufficient grounds, by applying the rules in accordance with the principles enshrined in Article 10 and based on an acceptable assessment of the facts. It concluded that there had been a violation of Article 10 of the Convention. In summary, the European Court held in its Baldassi judgment that the call to boycott belongs to political and activist speech discourse and that the judge must carry out a rigorous review of the necessity of the interference by demonstrating, in the light of the context, how the permissible limits of freedom of expression have been crossed. It is in application of this precedent that the circular of October 20, 2020, by the current French Minister of Justice, Mr. Eric Dupont-Moretti, relating to the repression of discriminatory calls for the boycott of Israeli products, was issued.18 According to the Minister, the decision of the European Court of Human Rights,“which is protective of freedom of militant expression in that it authorizes the call for a political boycott, does not, however, call into question the legal foundations of the repression as long as a call for discrimination is characterized.” Drawing the consequences of the judgment of June 11, 2020, the Minister of Justice insisted on“the need for rigor in the characterization of the facts in question. Prosecutors should only prosecute when the facts, considered in concreto, characterize an appeal to hatred or discrimination and not a simple political action.” “It will be necessary to verify in each case how, from a material and intentional point of view, the content of the call to boycott in question, its motives and the circumstances in which it took place, characterize the offense of public provocation to discrimination and thus justify the infringement of the freedom of political and activist expression,” the Minister said. Finally, the Minister explained that “The antisemitic character of the call to boycott may be directly derived from the words, gestures and writings of the respondent. It may also be inferred from the context. The representative of the public prosecutor should insist on the requirements of the European Court and the meeting of all these criteria during his or her submissions at the hearing.” This analysis was reiterated by the Ministry of Justice in a written reply of March 16, 2021, to a question from a member of Parliament on this point, on which occasion the Ministry confirmed the validity of the circulars of 2010 and 2012.19 Some commentators, based on a quick reading of this circular, saw in it the French authorities’ pure and simple refusal to comply with the solution rendered by the European Court, by upholding at all costs the French legal basis for the repression of the call of the boycott of Israeli products. In our view, however, the Ministry of Justice has fully grasped the scope of the Baldassi judgment, which authorizes the French authorities to condemn calls for boycots on the basis of Article 24(8) of the Law of July 29, 1881, as long as the local judge has given sufficient reasons for his or her decision, i.e. she or he has explained how the specific circumstances of the case in question allow him or her to restrict freedom of expression by sanctioning the call for a boycott on the basis of the Law of 1881. Conclusion It follows from the Baldassi ruling, the application of which was clarified by the circular of the Minister of 16. See Mamère v. France, ECtHR, no. 12697/03, § 20, Nov. 7, 2006. 17. In this regard, the Court quotes the UN Special Rapporteur on freedom of religion or belief, who recalled at the UN General Assembly of Sept. 20, 2019 (A/74/358) that“international law recognizes boycotts as legitimate forms of political expression and that non-violent expressions of support for boycotts are, as a general matter, legitimate speech that should be protected.” 18. Circular of the Ministry of Justice of Oct. 20, 2020, on the repression of discriminatory calls for a boycott of Israeli products, reference: DP 2020/0065/A4BIS. 19. Answer published in the Official Journal of the National Assembly of March 16, 2021, on written question no. 35917 by Mr. Pierre Dharréville published in the same Official Journal on Feb. 2, 2021.
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