Court of Cassation Ruling on Freedom of Expression

Extract

[...] Again, the third paragraph of Article 38 of the law of 1881, which prohibited the reproduction of any or part of the circumstances of a crime or a delict, was considered contrary to Article 10 of the Convention by a judgment of the Criminal Chamber of 20 February 2001. This submission of French law to the law of the ECHR, which leads to an obvious legal insecurity, seems to be necessary in order to harmonize the legislations in Europe. [...]

[...] Qbeing incompatible with these Convention provisions, the provisions of the law of 19 July 1977 could not serve as a basis for a criminal conviction Scope/Analysis : By this decision, once again, the criminal chamber of the Court of Cassation sets aside a domestic law due to the primacy of the freedom of expression affirmed by the European Convention on Human Rights. At the same time, we observe the competence of the national judge in terms of conventionality control, since the French judge in this case checks the conformity of the 1977 law with Article 10 of the European Convention on Human Rights in accordance with Article 55 of the Constitution, which provides for the superiority of regularly ratified treaties over laws. [...]

[...] Thus, if the choice of voters must be enlightened, it must be able to exercise freely, that is to say, in conditions that are conducive to preserving personal reflection, particularly in the days preceding the consultation. The man then filed a cassation appeal and still argues the argument of the incompatibility of the texts of the law of 19 July 1977 with Articles 10 and 14 of the EDH Convention. Question : Is the prohibition on publishing opinion polls in the week preceding an election a restriction on freedom of expression necessary to protect legitimate interests under Article 10 of the EDH Convention? Solution : The Court of Cassation answered in the negative. [...]

[...] From now on, the publication of opinion polls is limited to the eve and the day of the election. The Paris Court of Appeal in a judgment of 23 May 2002 considering that this law could not be considered as a milder law that would apply immediately, since by incriminating facts that were not susceptible of being prosecuted previously, the new law contains more severe provisions under Article 112-1 of the Penal Code, it cannot therefore be applied to facts committed prior to its entry into force. [...]

[...] Court of Cassation, Criminal Chamber September 2001, n°00-85.359 - Is the prohibition on publishing opinion polls in the week preceding an election a restriction on freedom of expression necessary to protect legitimate interests under Article 10 of the ECHR? Facts : In this case, a publisher was prosecuted for an infringement of the regulation of opinion polls after the publication in Le Parisien of a poll related to the 1997 legislative elections between the two rounds of the latter. Procedure : The Paris Correctional Court had acquitted him of the offense due to the incompatibility of the offense provided for by the law of 19 July 1977, which prohibits the publication of opinion polls in the week preceding an election, with Articles 10 and 14 of the European Convention on Human Rights (EDH Convention). [...]