The European Parliament recently stripped Marine Le Pen of her immunity from prosecution for her comparison of Muslims with the NazI occupation.
“Fifteen years ago, we started seeing veils on our streets; more and more veils. Then we started seeing burqas: more and more burqas. After that came prayers in the streets […] and now there are 10 to 15 locations in which people gather, taking our public space. […] I’m sorry, but some people are very fond of talking about the Second World War and about the occupation, so let’s talk about occupation, because that is what is happening here […] There are no tanks, no soldiers, but it is still an occupation and it weighs on people.”
These are the comments made by Marine Le Pen, the leader of the French far-right party Front National and a member of the European Parliament (MEP), during a public meeting of supporters held on Dec. 10, 2010, in Lyon. She was referring to Muslims praying outside on the streets because of a lack of mosques. The speech was made in the course of her campaign for the leadership of the party, a post which she took up in January 2011.
Was this hate speech? Incitement to hatred? Was it discrimination against a particular group of people on the basis of their religion? Is it legally admitted to compare Muslims praying on the streets to the Nazi occupation during World War II? Those are the questions a French judge will from now on be able to examine: Last week, the European Parliament stripped Marine Le Pen of her parliamentary immunity, paving the way for the far-right leader to potentially face charges over what some view as anti-Muslim comments.
The judicial investigation was opened by the public prosecutor in Lyon in response to a complaint filed by the Association de defense des droits de l’homme (Association for the Defense of Human Rights) for “incitement to hatred, discrimination or violence against a group of persons on grounds of their religious affiliation,” an offense provided for in French law. The investigation judge summoned Le Pen to appear in October 2012, but her lawyer stated that she would not appear before the judge, invoking her parliamentary immunity. This prompted the chief prosecutor to request the waiver of Le Pen’s immunity as an MEP.
As is the case with many national parliaments, members of the European Parliament enjoy immunity from criminal and civil liability for opinions expressed ‘as part of their duties.’ This last detail is important: In a recent case, the Court of Justice of the European Union recalled that the opinion of an MEP is covered by immunity only where it is expressed “in the performance of his/her duties,” thus implying the requirement of a link between the opinion expressed and the performance of the parliamentary duties. In Marine Le Pen’s case, “European lawmakers have considered that her statements present no link with her European mandate,” said Marielle Gallo, a French MEP.
The European Parliament cannot pass judgment on the merit of the case, though. According to the rules of procedure, under no circumstance shall the Parliament “pronounce on the guilt or otherwise of the member nor on whether or not the opinions or acts attributed to him or her justify prosecution.” It is now up to the French judge to decide whether what Marine Le Pen said was illegal or not, on the basis of a certain number of elements.
The specter of genocide
The right to freedom of expression is recognized as a human right under Article 19 of the Universal Declaration of Human Rights and article 10 of the European Convention on Human Rights. And it is generally considered as having a special relevance for political leaders – such as Marine Le Pen – because “we are here at the heart of what should be protected, i.e. the freedom of expression in the framework of the democratic process,” says Jogchum Vrielink, a researcher on hate speech and freedom of speech, and the coordinator of the Center for Discrimination Law at the University of Leuven (Belgium), in an interview with Mint Press News. “In a democracy, it is considered as particularly vital that politicians can freely express their opinions without running the risk of being persecuted.”
This is why courts in Europe have generally granted a wider protection to opinions expressed by politicians: this is viewed as essential to ensure their independence. There is one exception, though, which concerns hate speech. “Here, it is almost the other way round,” Vrielink explains. “In this case, the protection offered by the courts to political leaders tends to be limited because they are viewed as having an exemplary role; if they engage in hate speech, it is more likely to have an impact on public opinion.”
The European sensitivity about hate speech is linked to the context in which the European Convention of Human Rights was born. Drafted in the aftermath of the Second World War, the Convention expresses the wish of the Allied Powers to ensure that the most serious human rights violations which had occurred during the War – most notably, the Holocaust – be avoided in the future.
The writers of the Convention wanted to ensure that never again would free speech rights be used to abolish other rights or democracy. Judges all over Europe have since kept a particular sensitivity towards words that could be viewed as ‘anti-democratic’ or targeting a specific group of people.
The problem, though, is that ‘hate speech’ is a very vague notion and there is no clear definition of what it means. Nor are there clear-cut rules on how to interpret it and were to draw the line. But on the whole, says Jogchum Vrielink, “and based on the case-law of the European Court of Human Rights, we know that judges tend to be very severe with that sort of statements. In virtually no cases such as these has the European Court actually upheld the freedom of expression.”
What makes Le Pen’s words particularly delicate is her reference to the Second World War and her comparison with Nazi occupation: This is indeed a very sensitive matter in Europe and more especially in countries like France. “The French have a specific legislation that forbids the minimization of crimes against humanity and the denial of the Holocaust,” Vrielink explains. “This means that as soon as comments may be viewed as denying or minimizing Nazi crimes against humanity, they are liable under criminal law”.
This is what happened with Marine Le Pen’s father, former Front National leader Jean-Marie Le Pen, a few years ago. He was convicted of contesting crimes against humanity when he said that Nazi gas chambers were a mere “detail” in the history of World War II. Since she took over the leadership of the party, Marine has nevertheless sought to project a more palatable face of the far-right in France, generally free from the type of comments about the Second World War her father used to make. As her Lyon remarks show, however, this has not entirely been the case.
After the decision of the European Parliament, British MEP Sajjad Karim declared himself satisfied with the vote, commenting that Marine Le Pen “is, and always will be, a polarizing politician who seeks only to divide rather than unite. It is disappointing that she tries to hide behind her EU immunity as she espouses anti-EU and anti-immigration sentiments. Using Nazi occupation in France as a comparison to Muslims praying on the streets is appalling, insulting and highly inflammatory.” Anti-racism campaigners also declared themselves happy with the vote.
Others, however, consider the decision may be a mistake. Jean-Yves Camus, a political analyst and regular commentator of the far-right in France, declared that “she will no doubt try to turn this to her advantage and make herself out to be the victim of some kind of plot between the mainstream parties, who had her right to free speech taken away from her.”
As for Vrielink, he thinks “freedom of speech could have a lot more room in Europe. I feel we have become too stringent, with too many criminal cases. I don’t think there was an imminent risk of violence with Le Pen’s remarks, for example. I also believe this is not the best way to change people’s thinking, quite the contrary. Perhaps it would be more relevant to explain and show why what she said is wrong. This said, I don’t think we need to go as far as the United States, where virtually everything is permitted and protected and where it is often impossible to do something even if there is an obvious risk of violence, but we could definitely benefit from a move in their direction.”
Praying in the streets was banned in France in 2011; in the same year, France became the first EU state to ban public wearing of the niqab, a face-covering Islamic veil. This leaves France in a strange situation where politicians can be prosecuted for their Islamophobic remarks, while legislative bodies quietly and legally pass restrictive laws targeting Muslims.