As a prosecutor in France, I’d like to share with you my professional experience as far combating racism is concerned. The very short introductory speech I was asked to deliver, will concentrate on the way criminal law may be used in France to counteract hatred speeches against individuals , minorities or groups of persons because of their origin, belonging , real or supposed to a race, an ethnic group, a nation, a religion.
Owing to lack of time, this report will not deal with discriminations in everyday life, such as refusal to employ a person because of her race, refusal of access to night-clubs because of the origins of youngsters , refusal of the tenancy of a flat on the same grounds. All these behaviors constitute criminal offenses which are prosecuted . Of course , I can answer questions if you are interested in this subject To return to hate speeches , Criminal justice is faced with three different kinds of expressions of racism. I wish to illustrate my speech with concrete examples in order to present the effective action a prosecution service can initiate. Then I’ll present the French criminal legislation and mention the legal difficulties. Lastly , I’d like to underline the limits of law where combating racism is concerned.

I/Expressions of racism

In a few cases, we may pass the file on a mediator of the prosecution service or order police officer to deliver the suspect a warning against such misbehaviors. He will be prosecuted for racist insults if he re-offends .
Let me quote a few examples:

-Paris first instance criminal court, May 2nd 2000, Public Prosecution v. K... K... insulted the security guard of an ice rink : “I do not like Arab, dirty Arab!!” He was fined 5000 Francs.(Racist insults) -Paris first instance criminal court , April 26th 2000, Public Prosecution v. C...

C... had sent a fax to a religious association Adath Shalom “I order you to leave France, abandon your possessions, You bloody Jews!! Go away !or we will expel you by force, dirty Jews go away!”. He was fined 7000 F.(threats with condition) C... was acquitted of non-public incitement to racial hatred. The court judged that the offense was not constituted in that the message had been sent to a person belonging to the Jewish community. The victim could not be urged to act against her own interests.

-Paris first instance criminal court ,June 29th 2000, Public Prosecution v. L... After a traffic accident, L... had said to the bus driver “ Fuck off with your race.” He was fined 4000 Francs.

B/ Press articles, books, political speeches

In recent years, proceedings have been instigated against articles in newspapers expressing extreme opinions, especially on immigration. We had to react to violent political speeches, and to counteract the publishing of articles or books questioning the reality of crimes against humanity during WWII.

There’s an obligatory deposit of newspapers with public prosecution services. This enables us to initiate criminal proceedings when we read articles which may constitute offenses such as insults or defamation against a person or a group of persons because of their origins, belonging or non-belonging, real or supposed to a race, nation, ethnical group, or religion. Provocation on the same motives to racial discrimination, violence and hatred is also a criminal offense. We also maintain links with associations whose purpose is to combat racism. These associations address us complaints when they notice, an article, or a book which may infringe criminal law. These associations or victims are also entitled by law to indict such offenses directly in criminal courts.
A few examples may be quoted here to make it quite clear:
Political speech:

Paris Criminal Court of Appeal, 1998,january the 7th. S... versus L...
During a press conference a political leader called S. President of an association combating racism “fat crazy Zebu”. The court considered that in common language the Zebu was an animal living in Africa The expression had undoubtedly been used because of the origins of S...The adjectives fat and crazy were manifestly outrageous. L ... was fined 5000 francs and sentenced to pay 1 F damages to S...During the court session, the prosecutor underlined that “nothing may justify that a person should be insulted because of her origins, her belonging to a race, an ethnical group, or a religion. These fundamental elements of human dignity command the utmost absolute respect in the interests of society and public order”
Newspaper articles:

Court of Appeal of Paris,1996, September 26th International League against Racism and Anti-Semitism versus P.... (journalist) The association sued the journalist for publishing an article the heading of which was “More and more ridiculous! The Lord Mayor of Carcassonne suggests urging immigrants to settle in the countryside!”

In fact the journalist, in speaking of immigrants from North Africa and their children, described them in a very pejorative way. They were said “to be violent, to earn their living from rackets, drugs trafficking, and all kinds of offenses.” The court judged that all persons originating from North Africa were defamed because of their origin. But the court acquitted the journalist of the charge of incitement to racial hatred. The ratio decidendi on that specific point was that there was no direct call to hatred, though the image and honor of that group of persons had been damaged.

First instance court of Paris, June 14th 2000, Public prosecution v. M....
In an article published in a newspapers sold in the streets by unemployed people, M.... was accused of writing: “In Europe, 18 million unemployed, not one of them a Jew! “In Europe, 45 million homeless, not one of them a Jew” “In Europe, 150 millions people living in difficult conditions, not one of them a Jew (...)!

The whole Jewish community was imputed to dominate the world, to manipulate the world politics for its benefits, and to never share the misery of others. The court judged that offenses of both racial defamation and racial provocation were constituted. The response of justice to authors, journalists, active members of some small political groups, denying the reality of crimes against humanity during the second world war has also to be brought to your attention.

I’ll refer to one decision by the Court of Appeal of Paris of 1998, December 16th ( Public Prosecution versus G...) That philosopher had published a book called “The fundamental Myths of Israeli Politics.” Numerous chapters and paragraphs of the book aimed to deny the crimes against humanity the nazis committed during WWII. .G... cast doubts on the number of deceased persons, the origin of the deaths of Jews, the use of gas chambers... denied the meaning of words in documents, rejected testimonies. The court deemed the offense of denial of crimes against humanity was constituted. G.. was given a six months suspended prison sentence and fined 50 000 F. As G... claimed he had performed a task of historical reconstruction, the court observed “his work aimed to destroy the values and principles which are the basement of counteracting racism and antisemitism”.

C/Racism and the web

If the web is a wonderful opportunity for individuals to gain easy and quick access to knowledge, a practical mean of exchanging opinions with other people, it is also used to convey racist ideas or opinions.

Each time one may access information on the web in France, French criminal law may be applied. It doesn’t matter whether the web host or the access provider are located in a foreign country, whether the person in charge doesn’t live in France . For example the decision of Paris first instance court October 18th 2000, fining 300 000 francs Ahmed Rami, born in Morocco and living in Sweden, for racial defamation may be quoted. (I must mention this decision is not definitive).

On the web site called Radio Islam was published an anonymous text “a total war:” “Dear friends and Muslims, Jews make a total war against Muslims and Christians -politically, culturally, economically, and militarily in Palestine – Jews crucified Christ,(...) they still call his mother a whore...Jews hate you... Those who betrayed Christ are ready to do anything to destroy you! Jews build up a world organization to dig your graves and those of Christians, they manipulate the weakened minds of your daughters and wives....Total war to international Zionism and its agents! (...)”

The International League against racism and Anti-Semitism lodged a complaint against such a publishing , that could characterize racial defamation and racial provocation. The investigating judge obtained international cooperation of Swedish authorities. A. Rami denied he was in charge of the management of the hosting and pretended that its identity had been usurped.

Material evidence and testimonies collected during the investigations could convince the court of the contrary.

Public prosecution offices can react very quickly.. Last October and November Mr X... sent lots of messages on internet forums urging to racial hatred against Jews, even threatening to bomb synagogues, and calling for attacks on or the murder of Jews. He was identified by police officers after inquiry, and good cooperation with the Internet societies. He was arrested, charged with racial provocation and provocation to murder. His computer was confiscated. He ‘s under judicial control until his trial. He has also been accused of racial insults against two neighbors he had committed during the same period. How does the French legal system reconcile these condemnations with the principle of freedom of expression? That will be the subject of the second part of this report.

II/Combating racism and freedom of expression.

According to the 1789 Declaration of Human and Citizen Rights, (article 10)” Nobody may be bothered by his opinions as long as their expression doesn’t affect public order. Article 11 of the same convention states that “the free communication of ideas is one of the most precious human rights; every citizen may freely speak, write and publish but may be responsible for abuses in cases established by law.”

The wording and meaning of the French convention is not very far from article 10 of the European Convention on Human Rights, which is binding upon French authorities, prosecutors and judges.

Printing activities have been free since 1881, when the press law was enacted. There is no pre-publication censorship in France. The same liberty also prevails for radio and television but for technical reasons .

Though, it has always been admitted that the abuses of freedom of expression could be sued or prosecuted. One is accountable for insults, slanders, denigration of a rival product .

According to article 14 of the European Convention on Human rights “the enjoyment of the rights and freedoms set forth by this convention shall be secured without discrimination on any grounds such as sex, race, color, language, religion, political or other opinion , national or social origin , association with a national minority, birth or other status”.

The introduction of the 1946 constitution in France recalls that “every human being without consideration of his origins , race, religion, belief, has inalienable and sacred rights”.

Article 10 §2 of the European Convention on human Rights underlines that, since freedom of expression carries with it duties and responsibilities, it may be subject to conditions, restrictions, or penalties as are prescribed by law and are necessary in a democratic society in the interests of (...) Public safety (...) for the protection of morals for the protection or the rights of others (...)

Thus , freedom of expression has limits. These restrictions must be necessary and strictly proportional in order to protect public order , and the reputation of others, in a democratic society. French legislation tries to reach and establish a balance between freedom of expression and the necessity of counteracting racism.

1/ Criminal law contains very precise and strictly specified offenses:

b/ insults against a person or a group of persons because of .....(same wording as above) (Art. 29§2 and 33§3 of law of July 29th, 1881) c/ incitement to racial discrimination, violence or hatred against a person or a group of persons ...(same wording as above).(art. 24§6 of law of July 29th, 1881)

d/ denial of crimes against humanity as specified in article 6 of the Nuremberg Military International War Crimes Tribunal Status joined with the London International Agreement of August 8th 1945, and committed by criminal organizations or criminals sentenced by the Nuremberg International Military Tribunal , or national courts.

2/ The courts made an important jurisprudential contribution in defining the extent of application of these offenses.

The necessity of combating racism shall not be used to restrain freedom of expression. In a democratic, society, such offenses could not be an obstacle to discussions about immigration.

For example, the courts discharged a manager in charge of a newspaper who had illustrated an article strongly opposed to immigration with two photographs, the first showing in a car factory only workers originated from North Africa, the second showing a day-nursery where all babies and mothers originated from Africa.

The public prosecutor had alleged the publication of these two photographs to be an incitement to racial discrimination and hatred, arguing that they were inciting readers to hatred of those two groups of persons in that the photographs aimed to prove that foreigners were taking the places, the advantages and the jobs of nationals. The court found that there was no direct call to violence and discrimination.

There was a long controversy, to decide whether immigrants as such could constitute a group such as the law aimed to protect.. At first the Court of Cassation said no:

immigrants were a social group, and in 1997,the jurisprudence changed : immigrants should be considered as non-national and protected as such by criminal law.
Courts had also to define the limits of humor (especially in television shows) and specify which kind of “jokes” could be tolerated.

3/ The rules of procedure are very specific and protect the freedom of expression

a/Legislator has subjected all legal actions against racism to a short limitation period of three months. That means that prosecution must be initiated within three months from the first day of the publishing of the offending article, or from the broadcasting.
Only the order to investigate the case given by prosecutors or investigating judges may interrupt this short limitation period.. We have to check that the limitation period is regularly interrupted every three months by investigations.
b/To be valid, the acts of prosecutors must precisely quote the paragraphs, sentences, of a press article, a book, the words, sentences of a speech which are regarded as offending.

Prosecutors are obliged to note which kind of offense may be constituted : racial insults or racial defamation. They have to choose between the two after analyzing the text, or the speech, otherwise the proceedings will be void. Lastly , the prosecutor has to mention the proper articles of law .

When a court considers the offending article to constitute a racial insult, and the accused has been charged with racial defamation, the court cannot sentence him.

4/ The court of cassation can revise the decisions of the lower courts (first instance and criminal appeal courts) The court of cassation may quash decisions where law has been misinterpreted. The European Court on Human Rights pays also close attention to the respect of freedom of expression...

CONCLUSION

To conclude, this too short presentation of the French legal system, I’d like to emphasize that criminal proceedings against hate speeches are only one way of counteracting racism. Criminal law and criminal courts decisions set up a borderline and remind citizens there are limits. Expressions of racism cannot be tolerated in a democratic society; they are an offense to public and social order; they are contrary to democratic principles , to human dignity. But, if criminal law is a defense against racism , it is not sufficient in itself .Every citizen must personally feel involved in this combat, every administration or enterprise too, it’s a question of education, morals and citizenship and maintaining the cohesion of our societies.