EGMR: Forthcoming judgment on Tuesday 10 November 2015 – M’Bala v. France (no. 25239/13)

The applicant, Dieudonné M’Bala, is a French national, who was born in 1966 and lives in Paris (France). He is a comedian known by the stage name “Dieudonné”. He has also engaged in political activities. On 26 December 2008 Dieudonné M’Bala put on a performance at the “Zénith” in Paris in the context of a show entitled “J’ai fait l’con” (“I’ve been a naughty boy”). At the end of the show he invited Robert Faurisson, an academic who has received a number of convictions in France for his negationist and revisionist opinions, mainly his denial of the existence of gas chambers in concentration camps, to join him on stage.

Dieudonné M’Bala then got an actor wearing what was described as a “garment of light”, in fact a pair of striped pyjamas reminiscent of the clothing worn by Jewish deportees, on which was sewn a yellow star bearing the word “Jew”, to present Mr Faurisson with the “prize for unfrequentability and insolence”. The prize took the form of a threebranch candelabra (the seven-branch candelabra being an emblem of the Jewish religion), with three apples on top.

The incident was recorded by the police. On 29 December 2008 a preliminary investigation was opened. On 27 March 2009 the public prosecutor summoned Dieudonné M’Bala to appear before the Paris tribunal de grande instance for public insults directed at a person or group of persons on account of their origin or of belonging, or not belonging, to a given ethnic community, nation, race or religion, specifically in this case persons of Jewish origin or faith, by one of the means provided for in section 23 of the Law of 29 July 1881 on freedom of the press.

On 27 October 2009 the Paris court found Dieudonné M’Bala guilty on the charges and sentenced him to a fine of 10,000 €, awarding a token euro in damages to each civil party. The judges took the view, in particular, that Dieudonné M’Bala could not have been unaware of the fact that Robert Faurisson was one of the leading advocates of Holocaust denial and that the offending remarks would be both insulting and contemptuous towards persons of Jewish origin or faith. They also observed that Dieudonné M’Bala had knowingly staged the scene in question and that he could not hide behind any humorous intent; for although caricature and satire, even of a deliberately provocative nature, was undeniably, in a democratic society, part of freedom of expression and creation, involving the communication of ideas and opinions, the right to humour had certain limits, and in particular that of respect for the dignity of the human person. In the case at hand, according to the judges, the permissible limits of the right to humour had been crossed to an excessive degree. Dieudonné M’Bala, the public prosecutor and a number of civil parties appealed against the judgment.

In a judgment of 17 March 2011 the Paris Court of Appeal upheld the judgment as to the guilt of Dieudonné M’Bala. The judges found that with the arrival on stage of Robert Faurisson, the performance could no longer be seen as a form of entertainment but rather took on the features of a political event, observing in their turn that the offending mise en scène and the circumstances surrounding it, in particular an obscene hand gesture known as the “glissage de quenelle” that had been announced to the audience, served to fulfil the show’s stated aim to do “better” in terms of antisemitism than in previous performances. The Court of Cassation dismissed the appeal of Dieudonné M’Bala on 16 October 2012.

Relying on Articles 7 (no punishment without law) and 10 (freedom of expression), the applicant complains about his conviction.

Press release ECHR 346 (2015) 03/11/2015

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