DEFAMATION BY EXPOSURE OF SIGNS
LexInter | January 24, 2007 | 0 Comments

DEFAMATION BY EXPOSURE OF SIGNS OR EMBLEMS

FRENCH REPUBLIC 
IN THE NAME OF THE FRENCH PEOPLE
CASSATION on the Bouithier couple’s appeal, against a judgment of the Orléans Court of Appeal of February 8, 1946, which in the proceedings against Blain and Chobert, on the count of defamation, acquitted the defendants and dismissed the civil parties of their purposes and conclusions.
THE COURT, On the report of Mr. Patin, the observations of Mr. Coutard, lawyer in the Court, and the conclusions of Mr. Advocate General Dorel; Considering the brief produced; On the first plea, based on the violation of articles 28 and 32 of the law of July 29, 1881, and of article 7 of the law of April 20, 1810, for lack of reasons and lack of legal basis, in that the The judgment under appeal denied that the affixing of a swastika on the wall of the applicants’ house constituted the offense of defamation on the grounds that the incriminated emblem did not include the indication of any precise fact and that only moreover, paintings, drawings and emblems were not among the means exhaustively indicated in the
Having regard to the said articles; Whereas, on the one hand, the imputation or allegation of a determined and precise fact, affecting the honor or the consideration of a person, falls within the provisions of article 29 of the law of July 29, 1881, even if it is presented in a disguised form and by way of insinuation, and that it is for the Court of Cassation to control in this respect the appreciations of the trial judge; Whereas, on the other hand, article 32 of the law of July 29, 1881 punishes public defamation, when it is committed not only by speeches or writings, but also by one of the means set out in article 28 of the law, that is, by offering for sale, distribution or exhibition of drawings, engravings, paintings, emblems or images; that if, it is true, said article 28 was repealed by article 129 of the decree of July 29, 1939, it follows from all the provisions of articles 119 and following of this decree that this text relates only to the offense of insult to good morals, the repression of which it supplements and aggravates, and that it does not concern the offense of defamation; that consequently the reference made by the aforementioned article 32 to article 28, insofar as it specifies the means of publicity which defamation must take in order to be punishable, has not been affected by this repeal and retains its value legal; the aforementioned article 28 was repealed by article 129 of the decree of July 29, 1939, it follows from all the provisions of articles 119 and following of this decree that this text relates only to the offense of contempt of good morals, of which it complements and aggravates the repression, and that it does not concern the offense of defamation; that consequently the reference made by the aforementioned article 32 to article 28, insofar as it specifies the means of publicity which defamation must take in order to be punishable, has not been affected by this repeal and retains its value legal; the aforementioned article 28 was repealed by article 129 of the decree of July 29, 1939, it follows from all the provisions of articles 119 and following of this decree that this text relates only to the offense of contempt of good morals, of which it complements and aggravates the repression, and that it does not concern the offense of defamation; that consequently the reference made by the aforementioned article 32 to article 28, insofar as it specifies the means of publicity which defamation must take in order to be punishable, has not been affected by this repeal and retains its value legal; contempt of good morals, the repression of which it supplements and aggravates, and that it does not concern the offense of defamation; that consequently the reference made by the aforementioned article 32 to article 28, insofar as it specifies the means of publicity which defamation must take in order to be punishable, has not been affected by this repeal and retains its value legal; contempt of good morals, the repression of which it supplements and aggravates, and that it does not concern the offense of defamation; that consequently the reference made by the aforementioned article 32 to article 28, insofar as it specifies the means of publicity which defamation must take in order to be punishable, has not been affected by this repeal and retains its value legal;
Whereas it follows from the findings of the trial judges that Blain and Chobert affixed a swastika in red paint on the exterior wall of the dwelling house of the Bouithier couple and that these facts occurred on the night of 8 to May 9, 1945, with the announcement of the final victory of the Allied armies over Germany; Whereas to release Blain and Chobert from the prevention of defamation raised against them because of these facts, the trial judges declared that the affixing of this emblem did not imply any precise fact and could not moreover fall under the effect of article 32 of the law of July 29, 1881 following the repeal of article 28 of this law; But since the affixing of a swastika on the applicants’ residence, on the date it occurred, obviously incriminated their attitude during the occupation of French territory by the enemy and consequently implied the imputation of precise and determined facts; that therefore, by refusing to recognize this fact as a defamatory charge, brought to the attention of the public by one of the means referred to in the aforementioned article 32 to which the decree of July 29, 1939 made no modification , the trial judges violated the articles of law referred to in the plea; attribution of precise and determined facts; that therefore, by refusing to recognize this fact as a defamatory charge, brought to the attention of the public by one of the means referred to in the aforementioned article 32 to which the decree of July 29, 1939 made no modification , the trial judges violated the articles of law referred to in the plea; attribution of precise and determined facts; that therefore, by refusing to recognize this fact as a defamatory charge, brought to the attention of the public by one of the means referred to in the aforementioned article 32 to which the decree of July 29, 1939 made no modification , the trial judges violated the articles of law referred to in the plea;
On the second plea based on the violation by false application of articles 23, 31 and 32 of the law of July 29, 1881 and of article 7 of the law of April 20, 1810 for lack of reasons, and lack of legal basis, in what the judgment under appeal, by confirmation of the decision of the first judges, ruled out the defamatory character of the remarks made by Blain, on the grounds that it would have been provoked, whereas the provocation does not remove the defamatory character of the ‘insinuation;
Having regard to the said articles; Whereas under article 65 of the Penal Code, no crime or misdemeanor can be excused except in the cases and circumstances where the law declares the fact excusable, and no excuse resulting from the provocation is allowed by law for the benefit of the author of a defamation; Whereas Blain was accused of having, on May 12, 1945, publicly treated the Bouthier spouses as “dirty fascists” and “collaborators”; that without ignoring the defamatory character of these imputations, the judges of the bottom however released the defendant, declaring that it had been provoked, without moreover specifying the elements from which they made result this provocation; That as a result there was violation of the articles referred to in means; For these reasons: BREAKS and ANNULS the judgment of the Orléans Court of Appeal of February 8, 1946 and returns the case and the parties to the Bourges Court of Appeal.

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