Law Gayssot

The law French n° 90-615 of the July 13rd 1990, known as law Gayssot , “ten to repress any racist matter , xenophobe anti-semite or ”. It was submitted to the Parliament by the communist deputy Jean-Claude Gayssot.

Its article first lays out that “Any discrimination based on the membership or the not-membership of a Ethnie, a Nation, a Race or a Religion is prohibited. ”

Moreover it qualifies offense, in its article 9, the dispute of the existence of the crimes against humanity, defined in the statute of the international Tribunal military of Nuremberg, which were committed either by the members of an organization declared criminal pursuant to this statute or by a person found guilty such crimes.

Several private bills were since then deposited extending the application of the law Gayssot to the negation of the Armenian genocide or that of the whole of the Génocide S.

Comparison with other texts

Legislations antiracists or antinegationnists

Germany

The Germany has a similar legislation. In 1985 was introduced into the German penal code (section 130) prohibition to deny or minimize the importance of the genocide, the incurred sorrow going up to one year of prison. In 1994, the negation of Shoah was built-in a general law against the incentive with hatred, the sorrow incurred being high at five years of prison.

The German legislation was ratified by the European Court of the human rights, in a judgment delivered on September 6th, 1995 following a complaint of the former officer Nazi Otto Ernst Remer, who had been condemned in October 1992 to a custodial sentence for incentive with the racial hate and negation of Shoah. Contrary at the request of Remer, the Court considered its judgment - and the legislation which founded it - in conformity with the Convention of safeguard of the human rights and fundamental freedoms. (Remer, meanwhile, had fled Germany, being established in Spain then in Egypt and Syria. He died in 1997.)

Belgium

Its Belgian counterpart is the law of the July 30th 1981, known as “Law Moureaux”, tending to repress certain acts inspired by racism and xenophobia . Were added there the law of the March 23rd 1995, tending to repress the negation, minimization, the justification or the approval of the genocide made during the Second world war by the mode German national-Socialist , then that of the December 12th 2002, called “Law Mahoux”, tending to fight against discriminations . The extension of the Belgian law of 1995 was discussed to the Sénat in June 2005 and stumbled on the legal qualification of the Armenian genocide. A statutory body, the Center for the equal opportunity and the fight against racism, depending directly on the services of the Prime Minister is primarily charged to take care of the application of these three laws while estant in justice if necessary.

Canada

Adopted in 1982 like integral part of the Canadian Constitution, the Canadian Charter of the rights and freedoms prohibited, in its article 15.1, the “discriminations based on the race, the national or ethnic origin, the color, the religion, the sex, the age or deficiencies mental or physical”. Article 15.2 authorizes as for him “the laws, programs or activities intended to improve the situation of individuals or disadvantaged groups”, is measurements of positive discrimination or affirmative action of the type of those which are in force in the United States or the United Kingdom.

The Charter of the rights and freedoms of the person of the Quebec, adopted in 1975, explicitly prohibits discrimination for reasons related to “the race, the color, the religion, the language, the ethnic origin or main road”. Two institutions are charged to make respect this Québécois charter: commission of the rights of the person and the Court of the rights of the person, instituted in 1989. Since 1982, all the other laws of Quebec must respect this charter which in addition envisages, like its equivalent Canadian, of measurements aiming at reducing existing discriminations by programmes of access to the equality.

The Law on the customs and excises prohibits the importation of “material considered as obscene, likely to foment treason, sedition or heinous propaganda”.

the Council of Europe

An additional protocol with convention on the cybercriminality, “relating to the incrimination of acts of racist nature and xenophobe made by the means of computing systems”, was adopted on January 30th, 2003 by the Council of Europe and subjected to the ratification of the Member States and observers. Its article 6 is entitled “Negation, coarse minimization, approval or justification of the genocide or the crimes against humanity”. France integrated it in its legislation on May 19th, 2005. At the time of the debates in June 2005 to the Belgian Senate on the integration of this additional protocol to the Belgian legislation, the question of the inclusion of the Armenian genocide was the subject of sharp debates. The additional protocol will come into effect only after ratification by five States, as soon as possible on March 1st 2006. At December 29th, 2005, 25 States (of which 24 members of the Council of Europe, plus the Canada) signed it and five (Albania, Cyprus, Denmark - with reserves, Macedonia and Slovenia) formally ratified it.

The United Kingdom

The the United Kingdom does not have a similar law.

Swiss

In Swiss, it is the article 261bis Penal code, adoptee in 1994 by referendum, which allows and made it possible to condemn negationnists like Jürgen Graf or Gaston Armand Amaudruz. Contrary to other European laws, the article 261bis of the Penal code punishes the authors having held of the remarks negationnists only when the expression of their thought is regarded as abusive, provocante or when it will to attack the dignity of the victims seems manifest.

Other French laws known as “mémorielles Laws”

See the article mémorielles Lois for a more exhaustive talk.

the law of the January 29th 2001 recognizes the existence of the Armenian genocide of 1915
the law of the May 21st 2001 (known as “Loi Taubira”) tending to the recognition of the draft and of slavery as a crime against humanity issues in particular in its article 2 that “ the school programs and the research programs in history and social sciences will grant to the draft négrière and slavery the consequent place (sic) that they deserve. ”.
the law on the colonization of February 23rd, 2005 lays out that “ the school programs recognize in particular the positive role of the French presence overseas. ”

DEBATEs on the law Gayssot

Oppositions to the law

At the time of the vote, the line and the Senate were opposed to this law which carried according to them breach of liberty of expression. The Sénat had voted of rejection June 11th, 29th and 30th 1990. Among the politicians one can quote the ministers Dominique Perben, Pascal Clément, Francois Fillon, Gilles de Robien like Jean-Louis Debré, Pierre Mazeaud and Jacques Chirac.

One can also quote the former ministers for justice Jean Foyer, Jacques Toubon, Alain Peyrefitte and Simone Veil.

Jacques Toubon, which was still only appointed, declared: “I am against the offense of revisionism, because I am for the right and the history, and that the offense of revisionism makes move back the right and weakens the history” (YEAR, 3rd meeting of June 21st, 1991).

Philippe de Villiers, former deputy of the the Vendée, voted against this law, but re-examined its position since.

The opposition also came from intellectuals and in particular from historians: “large majority of the historians” according to the terms of Pierre Vidal-Naquet ( Le Monde , May 4th, 1996); the historians François Pipe cleaner and François Bédarida. But also of writers like Michel Tournier, Michel Houellebecq, Jean Daniel and Alain Robbe-Grillet, magistrates like Philippe Bilger, journalists like Philippe Shard and Ivan Rioufol and of philosophers like Paul Ricœur.

And more recently: The historian Claude Liauzu: “We are not for the law Gayssot as historians, far from there. It is dangerous to prevent the freedom of research and it is preferable to face the negationnists in a combat of ideas. ” (Nouvel Obs cat, September 22nd, 2005). Finally a call was published on December 13rd, 2005 in Libération .

Patrick Louis, appointed European, created an Internet site where various historians express themselves against the mémorielles laws.

In the negationnists mediums, the law was also strongly criticized, in particular by Eric Delcroix (lawyer negationnist which in particular defended Robert Faurisson).

Critical of the “official truth”

The opponents with the law say that this one founds a “official truth” and night with the historical research.

Its partisans claim that it is not the case since which there is not several versions of reality. According to Gilles Karmasyn, Webmaster of a site of reference on the negationnism, “the law does not fix reality. It takes note of reality” (see its study, '' the law Gayssot and its criticisms in good faith ''). For them, this law is not an obstacle with the historical research since the ideology Nazi, the policy of extermination or the interpretation of the genocide are always étudiables as long as the existence and the width of the genocide are not denied.

Quotations

The historian and former minister max Gallo: “For the historian, it is not acceptable that the national representation dictates " correct history, that which must be enseignée". Too many laws already • quite disposed • characterized such or such historical event. And in fact the courts slice. The judge is thus led to say the history according to the law. But the historian, has to him the role of saying the history according to the facts”. ( Le Figaro , November 30th, 2005).

The European deputy Jean-Louis Bourlanges (UDF): “I am extremely reserved, since always, with all these laws which I actually find of Soviet inspiration, all these laws which consist in saying the way in which one must speak about the history, that it is the law Gayssot on the revisionism, the law Taubira, that on slavery, or this law on the colonial past, I find inadmissible that the State goes beyond what is its role. ” (Public Spirit, France-Culture , December 4th, 2005).

Didier Daeninckx (writer), Alain Jakubowicz (lawyer), Serge Klarsfeld (lawyer), Claude Lanzmann (scenario writer), Denis Tanovic (scenario writer), Yves Ternon (historian) (nonrestrictive list): “The legislator did not involve himself on the territory of the historian. He leant there to limit the refusals related on these very specific historical subjects, which comprise a criminal dimension, and which make as a such object of political attempts at dressings-up. These voted laws do not sanction opinions but recognize and name offenses which, as well as racism, the slandering or the diffusion of false informations, threaten the law and order. ” (petition “let us not mix all”, December 20th, 2005)

Critical “the judge says the history”

The opponents with the law say that with this law, the judge would have the capacity to say the history. Its partisans answer that on the contrary it is thanks to this law which the judge does not have to determine any more historical truth but only to look at if the speech is in contradiction with the law.

For Jean-Pierre Azéma, there existed, before the law Gayssot, of the legal tendencies repressing racial slandering, the racial insult, the provocation with the racial hate and the apology for the racial hate, provisions in virtue of which were condemned Rassinier, Bardèche and Faurisson; he thus wonders about the utility to add to the legal arsenal a specific text, the law Gayssot, which “says the history”.

Constitutionality and conventionnality of the law

The opponents with this law claim that it is contrary with freedom of expression and the human rights and that it would be thus contrary with several international texts ratified by the France like with the Constitution.

Conformity with international texts

Certain negationnists seized of the international institutions.

United Nations

The Committee of the human rights of the Haut-Commissariat of the United Nations with the human rights of UNO considered to be the law in conformity with the international Pacte relating to the civil laws and political, and the European Cour of the human rights in conformity with the European Convention of the human rights, whose article 10§2 admits the restrictions on freedom of expression.

the Council of Europe

the European commission of the human rights, in a decision of June 24th, 1996, estimated that “contrary to the assertion of the applicant according to whom article 10 par. 2 (Article 10-2) of Convention would not apply to the " seek scientifique" , to suppose that it is acted as the species of a " publication; scientifique" , paragraph 2 of article 10 (Article 10-2) does not distinguish according to nature from the expression in question. ”

In a decision of July 16th, 1982, concerning the prohibition made to the applicant, by German justice, to reiterate the declarations qualifying of lie the assassination of million Jews under the 3^ème Reich, the Commission had declared inadmissible because obviously badly founded the request calling upon the violation of the articles 6§1 and 10 of Convention.

Constitutionality

The French Constitutional council was not seized, in particular by the parliamentary opposition . It is thus impossible to know with certainty if the text is in conformity with the Constitution.

However the question of the constitutionality was treated in an article of the professor of public Droit Michel Troper and in a very thorough way by Nicolas Bernard.

Penal jurisprudence

does not violate the decree of November 5th, 1870 the stop which, to draw aside the argument of the defendant according to whom was incontestable for him, fault of being published in the Journal officiel de la R3epublique fran1caise, the judgment of the international military tribunal to which article 24 (a) refer, raises:

that the agreement of London of May 8th, 1945, with its bearing appendix statute of the international military tribunal, was regularly published in the Official journal of October 7th, 1945
that, according to article 26 of the known as statute, the decision " will be final and nonlikely of revision "
that the authority of thing judged of a legal decision proceeds of its final nature, independently of any publication and that the decree of November 5th, 1870 is inapplicable with the legal decisions

the commentator of the stop to the Gazette of the Palate (July 20th, 1993, chronicle of criminal right, Somm. p.291) challenges the equivalence made between the publication and the authority between the parts of the judged thing, but admits that, in the species, the defendant could not claim to be unaware of principal the provision of the judgment of Nuremberg.

Is opposable to the defendant the judgment of the international military Tribunal of Nuremberg, whereas this one was not published in the Official journal and was not produced with the debates, because ( taking again Crim. ):

the authority of the legal decisions results from their delivery and their final nature, independently of a publication which is not prescribed by the decree of November 5th, 1870 governing the publicity of the laws and decrees
the defendant of infringement in article 24 (a) of the law of July 29th, 1881 could not prevail himself of the ignorance of the content of the judgment of the international military Tribunal of Nuremberg, dated October 1st, 1946, which was the object, in accordance with article 25 of the statute of this court, of French an official transcription

Rejet of the argument according to which the article 24bis would violate the principle of the separation of the legislative powers and legal:

article 6 of the European Convention of the human rights authorizes the judges to be withdrawn from the application of their national law only insofar as this one would be incompatible with other provisions of the aforesaid Convention, which is not the case in the species
the texts having legislative value are essential on the jurisdictions of the legal order which are not judges of their constitutionality

the law Gayssot is not contrary in article 10 of the European Convention of the human rights
justifies its decision the Court of Appeal which raises that the defendant did not restrict himself to question " alleged the gazages" clerk in the camp of Struthof but also, by a very dubitative formulation, the use of the gas chambers in the other concentration camps in order to exterminate the Jewish community

: “ if the dispute of the number of the victims of the policy of extermination in a given concentration camp does not enter the forecasts of article 24 (a) of the law of July 29th, 1881, the outrageous decrease of this number characterizes the offense of dispute of crimes against humanity envisaged and punished by the aforementioned article, when it is insincerely made ”

Other designations

This law is sometimes indicated under the name “law Fabius - Gayssot” (especially by the negationnists); in an interview by Phil Sanchez, Robert Faurisson declares that “ we call it sometimes " law Gayssot" , which is the name of a Communist, but sometimes we call it also " law Fabius-Gayssot". Fabius is a very rich Jew, he is socialist but extremely rich. Therefore, the law antirevisionnist of 1990 is a law judéo-socialo-Communist. ” This last name makes it possible to the negationnists to explicitly refer to an alliance of the left parties and Jews, Faurisson in addition speaking, in its Écrits revisionists , of “decisions of the great rabbinate ratified by the French Republic” (see critical this description by PHDN)

Random links: