Paris Letter: Magistrate who tested the limits of French expression retires

Anne-Elisabeth Credeville retires this month after 41 years on the bench, 24 of which were spent at the Cour de Cassation, France’s supreme court. She has devoted much of the past 12 years to cases that tested the limits of freedom of expression.

The French 1789 declaration of the rights of man defined freedom of expression as “one of the most precious rights of man” and specified that every citizen “may speak, write, and print freely, but must answer for the abuse of that freedom in cases determined by the law”.

“We laid down the principle, and immediately after, we set limitations. It’s very French,” Credeville says.

The 1881 law on freedom of the press made no distinction between press freedom and freedom of expression. That has been rectified by the European Convention on Human Rights, which has gradually replaced the 1881 law as the text of reference, Credeville explains. “The Convention has enabled us to go further.”

Defending terrorism

A new law last November made “defending terrorism” punishable by five years in prison and a €75,000 fine. “It’s a violation of freedom of expression, because it prescribes criminal punishment for what was a civil offence under the 1881 law,” Credeville explains.

Landmark decisions written by the retiring judge have angered Catholic and pro-Israeli groups.

In 2005, the clothes company Marithé et François Girbaud hung a 400sq m poster of fashion models imitating the apostles in Leonardo da Vinci's Last Supper (inset) at a busy intersection. A Catholic association sued on the grounds that it was offensive to Catholics.

"This founding event of Christianity, when Jesus Christ established the sacrament of the Eucharist, is incontestably an essential element of the Catholic faith," says the appeals court ruling, which Credeville reads in an incredulous tone. The advertisers had "insulted" the Catholic faith with their "weird travesty of the Last Supper," the lower court ruled.

So much for French secularism, Credeville jokes. Her decision reversing the appeals court ruling says the parody of the Last Supper "did not aim to offend the Catholic faithful . . . does not constitute an insult, a personal or direct attack against a person or group of persons because of their religious belonging".

An opinion piece titled Israel-Palestine: the Cancer, published by Le Monde in June 2002, was another cause célèbre handled by Credeville.

"We find it difficult to imagine that a nation of fugitives, descended from the most persecuted people in the history of mankind . . . has transformed itself in two generations into a self-confident and domineering people, with the exception of an admirable minority, a people filled with contempt and who take satisfaction in humiliating," wrote the French intellectuals Edgar Morin, Danièle Sallenave and Sami Nair.

The authors accused Israeli Jews of “ghettoising” and “persecuting” Palestinians. The appeals court sided with Jewish lawyers and student groups when it concluded that the newspaper column constituted “racial defamation”.

“There was a lot of discussion about whether it was anti-Semitic to criticise Israeli government policies,” Credeville recalls. Her decision ruled that “criticising the policies of the Israeli government towards Palestinians does not attack the honour or consideration of the Jewish community as a whole . . . but is the expression of an opinion . . .”

In a decision that revolutionised the status of investigative journalists, Credeville reversed a decade of courtroom defeats suffered by the journalist Denis Robert, whose television documentary The Dissimulators explained how the Luxembourg bank Clearstream laundered Russian money through numbered accounts.

Public interest

Credeville convinced her colleagues that Robert’s investigation was valid, that the subject was a matter of public interest.

A fellow judge telephoned Credeville to say that clearing Robert would mean “opening the door to all kind of plots”.

“I think we can take that risk,” Credeville told him. “We’re a democracy.”

A substantial number of French cases involve opposing views of history.

Robert Hebras, a survivor of the June 1944 massacre at Oradour-sur-Glane, had been sued by Alsatian veterans of the Waffen SS.

The Alsatians call themselves the “malgré nous” and say they were forced into service. Hebras maintained some were volunteers.

Credeville ruled that Hebras’s text “expressed a doubt on a historic question which is an object of dispute”.

Credeville does not believe the 1990 Gayssot law banning holocaust negationism violates freedom of expression, but she questions its necessity.

“We mustn’t have too many such laws,” she says. “Anyone who denies what happened should be considered an imbecile. We have enough evidence to know what happened and how . . . These laws establish a kind of political correctness. At the end of the day, they risk establishing politically acceptable thought.”

*This text was amended on August 8th, 21015