Human Rights Committee
21 October - 8 November 1996
Views of the Human Rights Committee under article 5,
paragraph 4, of the Optional Protocol to the
International Covenant on Civil and Political Rights
- Fifty-eighth session -
Communication No. 550/1993 * **
Submitted by: Robert Faurisson
Victim: The author
State party: France
Date of communication: 2 January 1993 (initial submission)
Date of decision on admissibility: 19 July 1995
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 8 November 1996,
Having concluded its consideration of communication No. 550/1993 submitted to the Human Rights Committee by Mr. Robert Faurisson under the Optional Protocol to the International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the author of the communication and the State party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The author of the communication, dated 2 January 1993, is Robert Faurisson, born in the United Kingdom in 1929 and with dual French/British citizenship, currently residing in Vichy, France. He claims to be a victim of violations of his human rights by France. The author does not invoke specific provisions of the Covenant.
The facts as submitted by the author
2.1 The author was a professor of literature at the Sorbonne University in Paris until 1973 and at the University of Lyon until 1991, when he was removed from his chair. Aware of the historical significance of the Holocaust, he has sought proof of the methods of killings, in particular by gas asphyxiation. While he does not contest the use of gas for purposes of disinfection, he doubts the existence of gas chambers for extermination purposes ("chambres à gaz homicides") at Auschwitz and in other Nazi concentration camps.
2.2 The author submits that his opinions have been rejected in numerous academic journals and ridiculed in the daily press, notably in France; nonetheless, he continues to question the existence of extermination gas chambers. As a result of public discussion of his opinions and the polemics accompanying these debates, he states that, since 1978, he has become the target of death threats and that on eight occasions he has been physically assaulted. On one occasion in 1989, he claims to have suffered serious injuries, including a broken jaw, for which he was hospitalized. He contends that although these attacks were brought to the attention of the competent judicial authorities, they were not seriously investigated and none of those responsible for the assaults has been arrested or prosecuted. On 23 November 1992, the Court of Appeal of Riom followed the request of the prosecutor of the Tribunal de Grande Instance of Cusset and decreed the closure of the proceedings (ordonnance de non-lieu) which the authorities had initiated against X.
2.3 On 13 July 1990, the French legislature passed the so-called "Gayssot Act", which amends the law on the Freedom of the Press of 1881 by adding an article 24 bis; the latter makes it an offence to contest the existence of the category of crimes against humanity as defined in the London Charter of 8 August 1945, on the basis of which Nazi leaders were tried and convicted by the International Military Tribunal at Nuremberg in 1945-1946. The author submits that, in essence, the "Gayssot Act" promotes the Nuremberg trial and judgment to the status of dogma, by imposing criminal sanctions on those who dare to challenge its findings and premises. Mr. Faurisson contends that he has ample reason to believe that the records of the Nuremberg trial can indeed be challenged and that the evidence used against Nazi leaders is open to question, as is, according to him, the evidence about the number of victims exterminated at Auschwitz.
2.4 In substantiation of the claim that the Nuremberg records cannot be taken as infallible, he cites, by way of example, the indictment which charged the Germans with the Katyn massacre, and refers to the introduction by the Soviet prosecutor of documents purporting to show that the Germans had killed the Polish prisoners of war at Katyn (Nuremberg document USSR-054). The Soviet authorship of this crime, he points out, is now established beyond doubt. The author further notes that, among the members of the Soviet Katyn (Lyssenko) Commission, which had adduced proof of the purported German responsibility for the Katyn massacre, were Professors Burdenko and Nicolas, who also testified that the Germans had used gas chambers at Auschwitz for the extermination of four million persons (Document USSR-006). Subsequently, he asserts, the estimated number of victims at Auschwitz has been revised downward to approximately one million.
2.5 Shortly after the enactment of the "Gayssot Act", Mr. Faurisson was interviewed by the French monthly magazine Le Choc du Mois, which published the interview in its Number 32 issue of September 1990. Besides expressing his concern that the new law constituted a threat to freedom of research and freedom of expression, the author reiterated his personal conviction that there were no homicidal gas chambers for the extermination of Jews in Nazi concentration camps. Following the publication of this interview, eleven associations of French resistance fighters and of deportees to German concentration camps filed a private criminal action against Mr. Faurisson and Patrice Boizeau, the editor of the magazine Le Choc du Mois. By judgment of 18 April 1991, the 17th Chambre Correctionnelle du Tribunal de Grande Instance de Paris convicted Messrs. Faurisson and Boizeau of having committed the crime of "contestation de crimes contre l'humanité" and imposed on them fines and costs amounting to FF 326,832.
2.6 The conviction was based, inter alia, on the following Faurisson statements:
"... No one will have me admit that two plus two make five, that the earth is flat, or that the Nuremberg Tribunal was infallible. I have excellent reasons not to believe in this policy of extermination of Jews or in the magic gas chamber ..."
"I would wish to see that 100 per cent of all French citizens realize that the myth of the gas chambers is a dishonest fabrication ('est une gredinerie'), endorsed by the victorious powers of Nuremberg in 1945-46 and officialized on 14 July 1990 by the current French Government, with the approval of the 'court historians'".
2.7 The author and Mr. Boizeau appealed their conviction to the Court of Appeal of Paris (Eleventh Chamber). On 9 December 1992, the Eleventh Chamber, under the Presidency of Mrs. Françoise Simon, upheld the conviction and fined Messrs. Faurisson and Boizeau a total of FF 374,045.50. This sum included compensation for immaterial damage to the eleven plaintiff associations. The Court of Appeal did, inter alia, examine the facts in the light of articles 6 and 10 of the European Convention of Human Rights and Fundamental Freedoms and concluded that the court of first instance had evaluated them correctly. The author adds that, in addition to this penalty, he incurred considerable additional expenses, including attorney's fees for his defence and hospitalization costs as a result of injuries sustained when he was assaulted by members of Bétar and Tagar on the first day of the trial.
2.8 The author observes that the "Gayssot Act" has come under attack even in the French National Assembly. Thus, in June 1991, Mr. Jacques Toubon, a member of Parliament for the Rassemblement pour la République (RPR) and currently the French Minister of Justice, called for the abrogation of the Act. Mr. Faurisson also refers to the criticism of the Gayssot Act by Mrs. Simone Veil, herself an Auschwitz survivor, and by one of the leading legal representatives of a Jewish association. In this context, the author associates himself with a suggestion put forward by Mr. Philippe Costa, another French citizen tried under article 24 bis and acquitted by the Court of Appeal of Paris on 18 February 1993, to the effect that the Gayssot Act be replaced by legislation specifically protecting all those who might become victims of incitement to racial hatred and in particular to anti-semitism, without obstructing historical research and discussion.
2.9 Mr. Faurisson acknowledges that it would still be open to him to appeal to the Court of Cassation; he claims, however, that he does not have the FF 20,000 of lawyers' fees which such an appeal would require, and that in any event, given the climate in which the trial at first instance and the appeal took place, a further appeal to the Court of Cassation would be futile. He assumes that even if the Court of Cassation were to quash the judgments of the lower instances, it would undoubtedly order a re-trial, which would produce the same results as the initial trial in 1991.
3.1 The author contends that the "Gayssot Act" curtails his right to freedom of expression and academic freedom in general, and considers that the law targets him personally ("lex Faurissonia"). He complains that the incriminated provision constitutes unacceptable censorship, obstructing and penalizing historical research.
3.2 In respect of the judicial proceedings, Mr. Faurisson questions, in particular, the impartiality of the Court of Appeal (Eleventh Chamber). Thus, he contends that the President of the Chamber turned her face away from him throughout his testimony and did not allow him to read any document in court, not even excerpts from the Nuremberg verdict, which he submits was of importance for his defence.
3.3 The author states that, on the basis of separate private criminal actions filed by different organizations, both he and Mr. Boizeau are being prosecuted for the same interview of September 1990 in two other judicial instances which, at the time of submission of the communication, were scheduled to be heard in June 1993. This he considers to be a clear violation of the principle ne bis in idem.
3.4 Finally, the author submits that he continues to be subjected to threats and physical aggressions to such an extent that his life is in danger. Thus, he claims to have been assaulted by French citizens on 22 May 1993 in Stockholm, and again on 30 May 1993 in Paris.
State party's submission on the question of admissibility and author's comments thereon
4.1 In its submission under rule 91, the State party provides a chronological overview of the facts of the case and explains the ratio legis of the law of 13 July 1990. In this latter context, it observes that the law in question fills a gap in the panoply of criminal sanctions, by criminalizing the acts of those who question the genocide of the Jews and the existence of gas chambers. In the latter context, it adds that the so-called "revisionist" theses had previously escaped any criminal qualification, in that they could not be subsumed under the prohibition of (racial) discrimination, of incitement to racial hatred, or glorification of war crimes or crimes against humanity.
4.2 The State party further observes that in order to avoid making it an offence to manifest an opinion ("délit d'opinion"), the legislature chose to determine precisely the material element of the offence, by criminalizing only the negation ("contestation"), by one of the means enumerated in article 23 of the law on the Freedom of the Press of 1881, of one or several of the crimes against humanity in the sense of article 6 of the Statute of the International Military Tribunal. The role of the judge seized of allegations of facts that might be subsumed under the new law is not to intervene in an academic or an historical debate, but to ascertain whether the contested publications of words negate the existence of crimes against humanity recognized by international judicial instances. The State party points out that the law of 13 July 1990 was noted with appreciation by the Committee on the Elimination of Racial Discrimination in March 1994.
4.3 The State party submits that the communication is inadmissible on the basis of non-exhaustion of domestic remedies in so far as the alleged violation of Mr. Faurisson's freedom of expression is concerned, as he did not appeal his case to the Court of Cassation. It recalls the Committee's jurisprudence that mere doubts about the effectiveness of available remedies do not absolve an author from availing himself of them. Furthermore, it contends that there is no basis for the author's doubt that recourse to the Court of Cassation could not provide him with judicial redress.
4.4 In this context, the State party notes that while the Court of Cassation indeed does not examine facts and evidence in a case, it does ascertain whether the law was applied correctly to the facts, and can determine that there was a violation of the law, of which the Covenant is an integral part (art, 55 of the French Constitution of 4 June 1958). Article 55 stipulates that international treaties take precedence over domestic laws, and according to a judgment of the Court of Cassation of 24 May 1975, domestic laws contrary to an international treaty shall not be applied, even if the internal law was adopted after the conclusion of the treaty. Thus, the author remained free to invoke the Covenant before the Court of Cassation, as the Covenant takes precedence over the law of 13 July 1990.
4.5 As to the costs of an appeal to the Court of Cassation, the State party notes that pursuant to articles 584 and 585 of the Code of Criminal Procedure, it is not mandatory for a convicted person to be represented by counsel before the Court of Cassation. Furthermore, it observes that legal aid would be available to the author, upon sufficiently motivated request, in accordance with the provisions of Law 91-647 of 10 July 1991 (especially para. 10 thereof). The author did not file any such request, and in the absence of information about his financial resources, the State party contends that nothing would allow the conclusion that an application for legal aid, had it been filed, would not have been granted.
4.6 Concerning the alleged violation of article 14, paragraph 7, the State party underlines that the principle of "ne bis in idem" is firmly anchored in French law, which has been confirmed by the Court of Cassation in numerous judgments (see in particular article 6 of the Code of Criminal Procedure).
4.7 Thus, if new complaints and criminal actions against the author were entertained by the courts, for facts already judged by the Court of Appeal of Paris on 9 December 1992, then, the State party affirms, the prosecutor and the court would have to invoke, ex officio, the principle of "non bis in idem" and thereby annul the new proceedings.
4.8 The State party dismisses the author's allegation that he was a target of other criminal procedures based on the same facts as manifestly abusive, in the sense that the sole existence of the judgment of 9 December 1992 is sufficient to preclude further prosecution. In any event, the State party argues that Mr. Faurisson failed to produce any proof of such prosecution.
5.1 In his comments on the State party's submission, the author argues that the editor-in-chief of the magazine Le Choc, which published the disputed interview in September 1990, did appeal to the Court of Cassation; on 20 December 1994, the Criminal Chamber of the Court of Cassation dismissed the appeal. The author was informed of this decision by registered letter of 21 February 1995 from the Registry of the Court of Appeal of Paris.
5.2 Mr. Faurisson reiterates that assistance of legal counsel in proceedings before the Court of Cassation is, if not necessarily required by law, indispensable in practice: if the Court may only determine whether the law was applied correctly to the facts of a case, the accused must have specialized legal knowledge himself so as to follow the hearing. On the question of legal aid, the author simply notes that such aid is generally not granted to individuals with the salary of a university professor, even if this salary is, in his own situation, severely reduced by an avalanche of fines, punitive damages and other legal fees.
5.3 The author observes that he invokes less a violation of the right to freedom of expression, which does admit of some restrictions, but of his right to freedom of opinion and to doubt, as well as freedom of academic research. The latter, he contends, may not, by its very nature, be subjected to limitations. However, the Law of 13 July 1990, unlike comparable legislation in Germany, Belgium, Switzerland or Austria, does limit the freedom to doubt and to carry out historical research in strict terms. Thus, it elevates to the rank of infallible dogma the proceedings and the verdict of the International Military Tribunal sitting at Nuremberg. The author notes that the proceedings of the Tribunal, its way of collecting and evaluating evidence, and the personalities of the judges themselves have been subjected to trenchant criticism over the years, to such an extent that one could call the proceedings a "mascarade" (... "la sinistre et déshonorante mascarade judiciaire de Nuremberg").
5.4 The author dismisses as absurd and illogical the ratio legis adduced by the State party, in that it even prohibits historians from proving, rather than negating, the existence of the Shoah or the mass extermination of Jews in the gas chambers. He contends that in the way it was drafted and is applied, the law endorses the orthodox Jewish version of the history of the Second World War once and for all.
5.5 As to the alleged violation of article 14, paragraph 7, the author reaffirms that one and the same interview published in one and the same publication resulted in three (distinct) proceedings before the XVIIth Criminal Chamber of the Tribunal de Grande Instance of Paris. These cases were registered under the following registry codes: (1) P. 90 302 0325/0; (2) P. 90 302 0324/1; and (3) P. 90 271 0780/1. On 10 April 1992, the Tribunal decided to suspend the proceedings in as much as the author was concerned for the last two cases, pending a decision on the author's appeal against the judgment in the first case. The proceedings remained suspended after the judgment of the Court of Appeal, until the dismissal of the appeal filed by the journal Le Choc du Mois by the Court of Cassation on 20 December 1994. Since then, the procedure in the last two cases has resumed, and hearings took place on 27 January and 19 May 1995. Another hearing was scheduled for 17 October 1995.
The Committee's admissibility decision
6.1 During its fifty-fourth session, the Committee considered the admissibility of the communication. It noted that, at the time of the submission of the communication on 2 January 1993, the author had not appealed the judgment of the Court of Appeal of Paris (Eleventh Chamber) of 9 December 1992 to the Court of Cassation. The author argued that he did not have the means to secure legal representation for that purpose and that such an appeal would, at any rate, be futile. As to the first argument, the Committee noted that it was open to the author to seek legal aid, which he did not. As to the latter argument the Committee referred to its constant jurisprudence that mere doubts about the effectiveness of a remedy do not absolve an author from resorting to it. At the time of submission, therefore, the communication did not meet the requirement of exhaustion of domestic remedies set out in article 5, paragraph 2 (b), of the Optional Protocol. In the meantime, however, the author's co-accused, the Editor-in-Chief of the magazine Le Choc, which published the disputed interview in September 1990, had appealed to the Court of Cassation, which, on 20 December 1994, dismissed the appeal. The judgment delivered by the Criminal Chamber of the Court of Cassation reveals that the court concluded that the law was applied correctly to the facts, that the law was constitutional and that its application was not inconsistent with the French Republic's obligations under international human rights treaties, with specific reference to the provisions of article 10 of the European Convention on Human Rights, which provisions protect the right to freedom of opinion and expression in terms which are similar to the terms used in article 19 of the International Covenant on Civil and Political Rights for the same purpose. In the circumstances, the Committee held that it would not be reasonable to require the author to have recourse to the Court of Cassation on the same matter. That remedy could no longer be seen as an effective remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol, i.e. a remedy that would provide the author with a reasonable prospect of judicial redress. The communication, therefore, no longer suffered from the initial bar of non-exhaustion of domestic remedies, in so far as it appeared to raise issues under article 19 of the Covenant.
6.2 The Committee considered that the author had sufficiently substantiated, for purposes of admissibility, his complaint about alleged violations of his right to freedom of expression, opinion and of academic research. These allegations should, accordingly, be considered on their merits.
6.3 On the other hand, the Committee found that the author had failed, for purposes of admissibility, to substantiate his claim that his right not to be tried twice for the same offence had been violated. The facts of the case did not reveal that he had invoked that right in the proceedings that were pending against him. The Committee noted the State party's submission that the prosecutor and the court would be obliged to apply the principle of "non bis in idem" if invoked and to annul the new proceedings if they related to the same facts as those judged by the Court of Appeal of Paris on 9 December 1992. The author, therefore, had no claim in this respect under article 2 of the Optional Protocol.
6.4 Similarly, the Committee found that the author had failed, for purposes of admissibility, to substantiate his claims related to the alleged partiality of judges on the Eleventh Chamber of the Court of Appeal of Paris and the alleged reluctance of the judicial authorities to investigate aggressions to which he claims to have been subjected. In this respect, also, the author had no claim under article 2 of the Optional Protocol.
6.5 On 19 July 1995, therefore, the Human Rights Committee declared the communication admissible in as much as it appeared to raise issues under article 19 of the Covenant.
State party's observations on the merits and author's comments thereon
7.1 In its submission under article 4, paragraph 2, of the Optional Protocol, the State party considers that the author's claim should be dismissed as incompatible ratione materiae with the provisions of the Covenant, and subsidiarily as manifestly ill-founded.
7.2 The State party once again explains the legislative history of the "Gayssot Act". It notes, in this context, that anti-racism legislation adopted by France during the 1980s was considered insufficient to prosecute and punish, inter alia, the trivialization of Nazi crimes committed during the Second World War. The Law adopted on 13 July 1990 responded to the preoccupations of the French legislator vis-à-vis the development, for several years, of "revisionism", mostly through individuals who justified their writings by their (perceived) status as historians, and who challenged the existence of the Shoah. To the Government, these revisionist theses constitute "a subtle form of contemporary anti-semitism" ("... constituent une forme subtile de l'antisémitisme contemporain") which, prior to 13 July 1990, could not be prosecuted under any of the existing provisions of French criminal legislation.
7.3 The legislator thus sought to fill a legal vacuum, while attempting to define the new provisions against revisionism in as precise a manner as possible. The former Minister of Justice, Mr. Arpaillange, had aptly summarized the position of the then Government by stating that it was impossible not to devote oneself fully to the fight against racism, adding that racism did not constitute an opinion but an aggression, and that every time racism was allowed to express itself publicly, the public order was immediately and severely threatened. It was exactly because Mr. Faurisson expressed his anti-semitism through the publication of his revisionist theses in journals and magazines and thereby tarnished the memory of the victims of Nazism, that he was convicted in application of the Law of 13 July 1990.
7.4 The State party recalls that article 5, paragraph 1, of the Covenant allows a State party to deny any group or individual any right to engage in activities aimed at the destruction of any of the rights and freedoms recognized in the Covenant; similar wording is found in article 17 of the European Convention on Human Rights and Fundamental Freedoms. The State party refers to a case examined by the European Commission of Human Rights / Cases Nos. 8348/78 and 8406/78 (Glimmerveen and Hagenbeek v. The Netherlands), declared inadmissible on 11 October 1979./ which in its opinion presents many similarities with the present case and whose ratio decidendi could be used for the determination of Mr. Faurisson's case. In this case, the European Commission observed that article 17 of the European Convention concerned essentially those rights which would enable those invoking them to exercise activities which effectively aim at the destruction of the rights recognized by the Convention ("... vise essentiellement les droits qui permettraient, si on les invoquait, d'essayer d'en tirer le droit de se livrer effectivement à des activités visant à la destruction des droits ou libertés reconnus dans la Convention"). It held that the authors, who were prosecuted for possession of pamphlets whose content incited to racial hatred and who had invoked their right to freedom of expression, could not invoke article 10 of the European Convention (the equivalent of article 19 of the Covenant), as they were claiming this right in order to exercise activities contrary to the letter and the spirit of the Convention.
7.5 Applying these arguments to the case of Mr. Faurisson, the State party notes that the tenor of the interview with the author which was published in Le Choc (in September 1990) was correctly qualified by the Court of Appeal of Paris as falling under the scope of application of article 24 bis of the Law of 29 July 1881, as modified by the Law of 13 July 1990. By challenging the reality of the extermination of Jews during the Second World War, the author incites his readers to anti-semitic behaviour ("... conduit ses lecteurs sur la voie de comportements antisémites") contrary to the Covenant and other international conventions ratified by France.
7.6 To the State party, the author's judgment on the ratio legis of the Law of 13 July 1990, as contained in his submission of 14 June 1995 to the Committee, i.e. that the law casts in concrete the orthodox Jewish version of the history of the Second World War, clearly reveals the demarche adopted by the author: under the guise of historical research, he seeks to accuse the Jewish people of having falsified and distorted the facts of the Second World War and thereby having created the myth of the extermination of the Jews. That Mr. Faurisson designated a former Chief Rabbi (Grand rabbin) as the author of the law of 13 July 1990, whereas the law is of parliamentary origin, is another illustration of the author's methods to fuel anti-semitic propaganda.
7.7 On the basis of the above, the State party concludes that the author's "activities", within the meaning of article 5 of the Covenant, clearly contain elements of racial discrimination, which is prohibited under the Covenant and other international human rights instruments. The State party invokes article 26 and in particular article 20, paragraph 2, of the Covenant, which stipulates that "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law". Furthermore, the State party recalls that it is a party to the International Convention on the Elimination of All Forms of Racial Discrimination; under article 4 of this Convention, States parties "shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred" ( para. 4 (a)). The Committee on the Elimination of Racial Discrimination specifically welcomed the adoption of the Law of 13 July 1990 during the examination of the periodic report of France in 1994. In the light of the above, the State party concludes that it merely complied with its international obligations by making the (public) denial of crimes against humanity a criminal offence.
7.8 The State party further recalls the decision of the Human Rights Committee in case No. 104/1981, / Communication No. 104/1981 (J.R.T. and the W.G. Party v. Canada), declared inadmissible 6 April 1983, para. 8 (b)./ where the Committee had held that "the opinions which Mr. T. seeks to disseminate through the telephone system clearly constitute the advocacy of racial or religious hatred which Canada has an obligation under article 20 (2) of the Covenant to prohibit", and that the claim of the author based on article 19 was inadmissible as incompatible with the provisions of the Covenant. This reasoning, the State party submits, should be applied to the case of Mr. Faurisson.
7.9 On a subsidiary basis, the State party contends that the author's claim under article 19 is manifestly without merits. It notes that the right to freedom of expression laid down in article 19 of the Covenant is not without limits (cf. art. 19, para. 3), and that French legislation regulating the exercise of this right is perfectly consonant with the principles laid down in article 19; this has been confirmed by a decision of the French Constitutional Court of 10 and 11 October 1984. / No. 84-181 D.C. of 10 and 11 October 1984, Rec. p. 78./ In the instant case, the limitations on Mr. Faurisson's right to freedom of expression flow from the Law of 13 July 1990.
7.10 The State party emphasizes that the text of the Law of 13 July 1990 reveals that the offence of which the author was convicted is defined in precise terms and is based on objective criteria, so as to avoid the creation of a category of offences linked merely to expression of opinions ("délit d'opinion"). The committal of the offence necessitates (a) the denial of crimes against humanity, as defined and recognized internationally, and (b) that these crimes against humanity have been adjudicated by judicial instances. In other words, the Law of 13 July 1990 does not punish the expression of an opinion, but the denial of a historical reality universally recognized. The adoption of the provision was necessary in the State party's opinion, not only to protect the rights and the reputation of others, but also to protect public order and morals.
7.11 In this context, the State party recalls once more the virulent terms in which the author, in his submission of 14 June 1995 to the Committee, had criticized the judgment of the International Tribunal of Nuremberg, dismissing it as a sinister and dishonouring judicial sham ("... la sinistre et déshonorante mascarade judiciaire de Nuremberg"). In so doing, he not only challenged the validity of the judgment of the Nuremberg Tribunal, but also unlawfully attacked the reputation and the memory of the victims of Nazism.
7.12 In support of its arguments, the State party refers to decisions of the European Commission of Human Rights addressing the interpretation of article 10 of the European Convention (the equivalent of para. 19 of the Covenant). In a case decided on 16 July 1982, / Case No. 9235/81 (X. v. Federal Republic of Germany), declared inadmissible 16 July 1982./ which concerned the prohibition, by judicial decision, of display and sale of brochures arguing that the assassination of millions of Jews during the Second World War was a Zionist fabrication, the Commission held that "it was neither arbitrary nor unreasonable to consider the pamphlets displayed by the applicant as a defamatory attack against the Jewish community and against each individual member of this community. By describing the historical fact of the assassination of millions of Jews, a fact which was even admitted by the applicant himself, as a lie and zionist swindle, the pamphlets in question not only gave a distorted picture of the relevant historical facts but also contained an attack on the reputation of all those ... described as liars and swindlers ...". The Commission further justified the restrictions on the applicant's freedom of expression, arguing that the "restriction was ... not only covered by a legitimate purpose recognized by the Convention (namely the protection of the reputation of others), but could also be considered as necessary in a democratic society. Such a society rests on the principles of tolerance and broad-mindedness which the pamphlets in question clearly failed to observe. The protection of these principles may be especially indicated vis-à-vis groups which have historically suffered from discrimination ...".
7.13 The State party notes that identical considerations transpire from the judgment of the Court of Appeal of Paris of 9 December 1992, which confirmed the conviction of Mr. Faurisson, by reference, inter alia, to article 10 of the European Convention and to the International Convention on the Elimination of All Forms of Racial Discrimination. It concludes that the author's conviction was fully justified, not only by the necessity of securing respect for the judgment of the International Military Tribunal at Nuremberg, and through it the memory of the survivors and the descendants of the victims of Nazism, but also by the necessity of maintaining social cohesion and public order.
8.1 In his comments, the author asserts that the State party's observations are based on a misunderstanding: he concedes that the freedoms of opinion and of expression indeed have some limits, but that he invokes less these freedoms than the freedom to doubt and the freedom of research which, to his mind, do not permit any restrictions. The latter freedoms are violated by the Law of 13 July 1990 which elevates to the level of only and unchallengeable truth what a group of individuals, judges of an international military tribunal, had decreed in advance as being authentic. Mr. Faurisson notes that the Spanish and United Kingdom Governments have recently recognized that anti-revisionist legislation of the French model is a step backward both for the law and for history.
8.2 The author reiterates that the desire to fight anti-semitism cannot justify any limitations on the freedom of research on a subject which is of obvious interest to Jewish organizations: the author qualifies as "exorbitant" the "privilege of censorship" from which the representatives of the Jewish community in France benefit. He observes that no other subject he is aware of has ever become a virtual taboo for research, following a request by another political or religious community. To him, no law should be allowed to prohibit the publication of studies on any subject, under the pretext that there is nothing to research on it.
8.3 Mr. Faurisson asserts that the State party has failed to provide the slightest element of proof that his own writings and theses constitute a "subtle form of contemporary anti-semitism" (see para. 7.2 above) or incite the public to anti-semitic behaviour (see para. 7.5 above). He accuses the State party of hybris in dismissing his research and writings as "pseudo-scientific" ("prétendument scientifique"), and adds that he does not deny anything but merely challenges what the State party refers to as a "universally recognized reality" ("une réalité universellement reconnue"). The author further observes that the revisionist school has, over the past two decades, been able to dismiss as doubtful or wrong so many elements of the "universally recognized reality" that the impugned law becomes all the more unjustifiable.
8.4 The author denies that there is any valid legislation which would prevent him from challenging the verdict and the judgment of the International Tribunal at Nuremberg. He challenges the State party's argument that the basis for such prohibition precisely is the Law of 13 July 1990 as pure tautology and petitio principis. He further notes that even French jurisdictions have admitted that the procedures before and decisions of the International Tribunal could justifiably be criticized. / Cf. Seventeenth Criminal Chamber, Tribunal Correctionnel de Paris, 18 April 1991./
8.5 The author observes that on the occasion of a recent revisionist affair (case of Roger Garaudy), the vast majority of French intellectuals as well as representatives of the French League for Human Rights have publicly voiced their opposition to the maintenance of the Law of 13 July 1990.
8.6 As to the violations of his right to freedom of expression and opinion, the author notes that this freedom remains severely limited: thus, he is denied the right of reply in the major media, and judicial procedures in his case are tending to become closed proceedings ("... mes procès tendent à devenir des procès à huis-clos"). Precisely because of the applicability of the Law of 13 July 1990, it has become an offence to provide column space to the author or to report the nature of his defence arguments during his trials. Mr. Faurisson notes that he sued the newspaper Libération for having refused to grant him a right of reply; he was convicted in first instance and on appeal and ordered to pay a fine to the newspaper's director. Mr. Faurisson concludes that he is, in his own country, "buried alive".
8.7 Mr. Faurisson argues that it would be wrong to examine his case and his situation purely in the light of legal concepts. He suggests that his case should be examined in a larger context: by way of example, he invokes the case of Galileo, whose discoveries were true, and any law, which would have enabled his conviction, would have been by its very nature wrong or absurd. Mr. Faurisson contends that the Law of 13 July 1990 was hastily drafted and put together by three individuals and that the draft law did not pass muster in the National Assembly when introduced in early May 1990. He submits that it was only after the profanation of the Jewish cemetery at Carpentras (Vaucluse) on 10 May 1990 and the alleged "shameless exploitation" ("exploitation nauséabonde") of this event by the then Minister of the Interior, P. Joxe, and the President of the National Assembly, L. Fabius, that the law passed. If adopted under such circumstances, the author concludes, it cannot but follow that it must one day disappear, just as the "myth" of the gas chambers at Auschwitz.
8.8 In a further submission dated 3 July 1996 the State party explains the purposes pursued by the Act of 13 July 1990. It points out that the introduction of the Act was in fact intended to serve the struggle against anti-semitism. In this context the State party refers to a statement made by the then Minister of Justice, Mr. Arpaillange, before the Senate characterizing the denial of the existence of the Holocaust as the contemporary expression of racism and anti-semitism.
8.9 In his comments of 11 July 1996 made on the State party's submission the author reiterates his earlier arguments; inter alia he again challenges the "accepted" version of the extermination of the Jews, because of its lack of evidence. In this context he refers for example to the fact that a decree ordering the extermination has never been found, and it has never been proven how it was technically possible to kill so many people by gas-asphyxiation. He further recalls that visitors to Auschwitz have been made to believe that the gas chamber they see there is authentic, whereas the authorities know that it is a reconstruction, built on a different spot than the original is said to have been. He concludes that as a historian, interested in the facts, he is not willing to accept the traditional version of events and has no choice but to contest it.
Examination of the merits
9.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as it is required to do under article 5, paragraph 1, of the Optional Protocol.
9.2 The Committee takes note of public debates in France, including negative comments made by French parliamentarians on the Gayssot Act, as well as of arguments put forward in other, mainly European, countries which support and oppose the introduction of similar legislations.
9.3 Although it does not contest that the application of the terms of the Gayssot Act, which, in their effect, make it a criminal offence to challenge the conclusions and the verdict of the International Military Tribunal at Nuremberg, may lead, under different conditions than the facts of the instant case, to decisions or measures incompatible with the Covenant, the Committee is not called upon to criticize in the abstract laws enacted by States parties. The task of the Committee under the Optional Protocol is to ascertain whether the conditions of the restrictions imposed on the right to freedom of expression are met in the communications which are brought before it.
9.4 Any restriction on the right to freedom of expression must cumulatively meet the following conditions: it must be provided by law, it must address one of the aims set out in paragraph 3 (a) and (b) of article 19, and must be necessary to achieve a legitimate purpose.
9.5 The restriction on the author's freedom of expression was indeed provided by law i.e. the Act of 13 July 1990. It is the constant jurisprudence of the Committee that the restrictive law itself must be in compliance with the provisions of the Covenant. In this regard the Committee concludes, on the basis of the reading of the judgment of the 17th Chambre correctionnelle du Tribunal de grande instance de Paris that the finding of the author's guilt was based on his following two statements: "... I have excellent reasons not to believe in the policy of extermination of Jews or in the magic gas chambers ... I wish to see that 100 per cent of the French citizens realize that the myth of the gas chambers is a dishonest fabrication". His conviction therefore did not encroach upon his right to hold and express an opinion in general, rather the court convicted Mr. Faurisson for having violated the rights and reputation of others. For these reasons the Committee is satisfied that the Gayssot Act, as read, interpreted and applied to the author's case by the French courts, is in compliance with the provisions of the Covenant.
9.6 To assess whether the restrictions placed on the author's freedom of expression by his criminal conviction were applied for the purposes provided for by the Covenant, the Committee begins by noting, as it did in its General Comment 10 that the rights for the protection of which restrictions on the freedom of expression are permitted by article 19, paragraph 3, may relate to the interests of other persons or to those of the community as a whole. Since the statements made by the author, read in their full context, were of a nature as to raise or strengthen anti-semitic feelings, the restriction served the respect of the Jewish community to live free from fear of an atmosphere of anti-semitism. The Committee therefore concludes that the restriction of the author's freedom of expression was permissible under article 19, paragraph 3 (a), of the Covenant.
9.7 Lastly the Committee needs to consider whether the restriction of the author's freedom of expression was necessary. The Committee noted the State party's argument contending that the introduction of the Gayssot Act was intended to serve the struggle against racism and anti-semitism. It also noted the statement of a member of the French Government, the then Minister of Justice, which characterized the denial of the existence of the Holocaust as the principal vehicle for anti-semitism. In the absence in the material before it of any argument undermining the validity of the State party's position as to the necessity of the restriction, the Committee is satisfied that the restriction of Mr. Faurisson's freedom of expression was necessary within the meaning of article 19, paragraph 3, of the Covenant.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee do not reveal a violation by France of article 19, paragraph 3, of the Covenant.
* Pursuant to rule 85 of the Committee's rules of procedure, Committee members Christine Chanet and Thomas Buergenthal did not participate in the consideration of the case. A statement made by Mr. Buergenthal is appended to the present document.
** The text of five individual opinions, signed by seven Committee members, is appended to the present document.