EGMR: European Convention on Human Rights does not protect negationist and anti-Semitic performances

von Dr. Georg Neureither

In its decision in the case of M’Bala M’Bala v. France (application no. 25239/13) the European Court of Human Rights has by a majority declared the application inadmissible. The decision is final. The case concerns the conviction of Dieudonné M’Bala M’Bala, a comedian with political activities, for public insults directed at a person or group of persons on account of their origin or of belonging to a given ethnic community, nation, race or religion, specifically in this case persons of Jewish origin or faith.

At the end of a show on 26 December 2008 at the “Zénith” in Paris, Dieudonné M’Bala M’Bala 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 to receive a “prize for unfrequentability and insolence”. The prize, which took the form of a three-branched candlestick with an apple on each branch, was awarded to him by an actor wearing what was described as a “garment of light” – a pair of striped pyjamas with a stitched-on yellow star bearing the word “Jew” – who thus played the part of a Jewish deportee in a concentration camp.

The Court found that during the offending scene the performance could no longer be seen as entertainment but rather resembled a political meeting, which, under the pretext of comedy, promoted negationism through the key position given to Robert Faurisson’s appearance and the degrading portrayal of Jewish deportation victims faced with a man who denied their extermination. In the Court’s view, this was not a performance which, even if satirical or provocative, fell within the protection of Article 10 (freedom of expression) of the European Convention on Human Rights, but was in reality, in the circumstances of the case, a demonstration of hatred and anti-Semitism and support for Holocaust denial ...

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