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France: Law on Denial of Recognized Genocide Crimes Challenged Before Constitutional Council

(Feb. 2, 2012) On January 23, 2012, the French Senate adopted, without any modifications, the draft law passed earlier by the National Assembly making a criminal offense “the denial or extreme minimization of one or several genocide crimes as defined in article 211-1 of the Penal Code and recognized as such by French law via one of the means listed in article 23 of the 1881 Law on the Freedom of the Press as amended.” The maximum penalty is one year of imprisonment and a €45,000 fine (about US$58,000). (Proposition de loi visant à réprimer la contestation de l'existence des génocides reconnus par la loi (Texte définitif), Sénat website (last visited Jan. 30, 2012).)

The means of expression listed in article 23 of the Law on the Freedom of the Press include speeches, shouting, threats made in public places or during public meetings, written or printed statements, drawings, engraved images or any other medium used for writing, words or images sold or distributed in public places or during public meetings, placards or posters exposed to the public view, or any public means of electronic communication. (Loi du 29 juillet 1881 sur la liberté de la presse (Consolidated version as of May 21, 2011, LEGIFRANCE.)

The new Law aims to punish the denial of the Armenian genocide of 1915; France officially recognized that genocide in 2001 (Loi 2001-70 du 29 janvier 2001 relative à la reconnaissance du génocide arméniende 1915, LEGIFRANCE). Denial of the existence of the Holocaust was already covered by article 24bis of the Law on Freedom of the Press. This article was added in 1992 (Loi du 29 juillet 1881 sur la liberté de la presse, supra).

The promulgation of the recently adopted Law, however, has been suspended, as its constitutionality has been challenged on several grounds, including violation of freedom of expression and communication, by 65 members of the National Assembly and 75 members of the Senate (Caroline Bruneau, Loi sur le génocide arménien: le Conseil constitutionnel saisi, LE FIGARO (Jan.31, 2012)).

In France, the review of the constitutionality of laws is solely entrusted to the Constitutional Council. As a general rule, the Council expresses an opinion on the constitutionality of a law before its promulgation. It is mandatory to refer to the Council all laws relating to the institutions and the rules of procedures of both parliamentary assemblies, while ordinary laws can be submitted to the Council by the President of the Republic, the Prime Minister, the President of the National Assembly, or the President of the Senate, or, more commonly, by 60 deputies or senators. In addition, since 2008, a party to a trial who considers that a law or one of its provisions applicable to his/her case infringes on the rights and liberties set forth in the Constitution may refer the law or provision to the Constitutional Council through the Cour de Cassation,France's Supreme Court for civil and criminal matters, or the Conseil d'Etat, France's highest administrative court. (Conseil Constitutionnel, Presentation (last visited Jan. 30, 2012).)