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Published online by Cambridge University Press: 12 February 2016
Great efforts have been made during the last decade to combat all forms of racial discrimination and anti-semitism, by legislation as well as on the social plain. On an international level, special conventions have been adopted, and some countries such as the United States, Great Britain, and Austria have, in addition, adopted special provisions to deal with their own specific problems. The growing number of foreigners who now come to work (Arabs, Africans, Portuguese, Italians, Greeks, Turks etc.) in Western Europe, have aggravated the ever present tradition of racism and anti-semitism, and have produced new forms of racial discrimination. In 1972, France widened the legislation which had been initiated in 1939. A number of cases have already been decided by French courts applying the 1972 law and in this article we will discuss its practical application.
1 The most important international document is certainly the International Convention on the Elimination of Forms of Racial Discrimination (Res. 2106 (XX) 21 December 1965). To this should be added the various “Human Rights” documents: the Universal Declaration of Human Rights (General Assembly Res. 217 (III), 10 December 1948), the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (GA Res. 2200 (XXI, 16 December 1966), the European Convention for the Protection of Human Rights and Fundamental Freedoms adopted 1950 (313 UNTS 221).
2 With regard to the negro problem; the Civil Rights Act of 1964, 78 Stat. 241 (1964).
3 The problem of racial relations has been particularly acute in Britain in the last ten years, since the increase in the number of non-whites in Britain. Two Race Relations Acts have been passed: in 1965 (c.73) and in 1968 (c.71). See Lester, Anthony and Bindman, Geoffrey, Race and Law (1972).Google Scholar Apparently those two statutes have not achieved their goals and the government published a White Paper announcing the preparation of a new Law, Cmnd. 6234 (11 September 1975).
4 Federal Constitutional Act of 3 July 1973 (Federal Law Gazette No. 390) to ensure the implementation of the International Convention on the Elimination of All Forms of Discrimination). See (1973) 7 Council of Europe-Bulletin of Legislative Activities 27.
5 Obviously the Marchandeau decree was repealed immediately by the Vichy Régime (Law of 27 August 1940 Dalloz Périodique 1940–4–264). It was reintroduced through the famous Ordinance of 9 August 1944 “relative au rétablissement de la légalité républicaine”. Dalloz Périodique 1939–4–351.
6 A “décret-loi” during the 3rd and the 4th Republic was an administrative regulation which had the power to amend a law (after a special qualifying law passed by Parliament); Marchandeau was the Minister who initiated that decree.
7 Dalloz Périodique 1881–4–65; see also Dalloz Code administratif 1975 at “Presse”.
8 “Réflexions sur la diffamation raciale” (Eléments constitutifs du délit et imperfections du texte actuel) Dalloz 11 970 Chroniques XXIX 133.
9 See Sénat (1971–1972) no. 192, draft law presented by MM. Gaston Monnerville et Pierre Giraud. See also the report presented by Senator Monnerville as introduction to the discussion relating to the ratification of the Convention on the Elimination of All Forms of Racial Discrimination (Sénat 1970–71 no. 231–13 May 1971).
10 See for instance a decision by the Cour d'Appel de Paris 26/3/1952 Dalloz 1953–342: an article which suggested a “healthy mistrust against the Jews” and asked for “reasonable anti-semitism, opposed to racial persecutions” was not considered as reprehensive.
11 It was traditional in French law not to permit associations to sue directly. Yet the Public Prosecutor (Procureur de la République) rarely used his prerogative to initiate prosecution.
12 See the discussion of those numerous proposals by Judge Foulon-Piganiol in another Chronique “Nouvelles réflexions sur la diffamation raciale-critique des propositions de loi en instance devant le Parlement” Dalloz 1970 Chroniques XXXV–163.
13 See the commentary by Judge Foulon-Piganiol “La lutte contre le racisme” (commentary on the Law of 1 July 1972 Dalloz 1972 Chroniques 1–261; see the Law at Dalloz 1972–328. See also the report presented at the Senate by Senator Pierre Mailhe-Sénat 15 June 1972 no. 280; at the National Assembly the Report was presented by Alain Terrenoire 1972 no. 2357 and 2394.
14 Dalloz Périodique 1936–4–169.
15 The “publicity” as defined by the Law is wide indeed: speeches, shouts, threats (in public places), writings, printed matters, drawings… The penalty is prison (one month to one year) and/or a fine (2000Fr. to 300,000Fr.).
16 Dalloz 1975–275 Loi 75–625 of 2 July 1975.
17 It is not clear why the right of associations to sue in case of racial or religious discrimination has not been extended equally to the associations working to prevent discrimination on ground of sex or family situation. The protection for sex or family situation applies only in “job” problems.
18 See Foulon-Piganiol, “La lutte contre le racisme” (équisse d'un bilan de trois années de jurisprudence) Dalloz 1975 Chronique XXV 159.
19 Ch. Criminelle, Cour de Cassation 15 February 1973 Dalloz 1975 Sommaire 58.
20 See Bouzat, et Pinatel, , Traité de Droit pénal et de criminologie (2nd ed., 1970) no. 1682 p. 1613.Google Scholar
21 See Dalloz 1975 Sommaire 60. The whole trial has been published in an English translation at Wildwood House London, 1974 under the title: “Soviet Antisemitism: the Paris Trial”.
22 The quotation is taken from the English translation of The Paris Trial at p. 114.
23 As Judge Foulon-Piganiol writes in his Chronique at Dalloz 1975—Chroniques XXV–159, the Ministry of Justice asked for an evaluation of the application of the Law. There were approximately 30 cases between 1972 and 1975.
24 See Tribunal de Grande Instance de Grenoble 9 July 1973 Dalloz 1975–489 note Foulon-Piganiol: a paper concerning the question of whether or not Christopher Colombus was a Jew and concludes that he was, on ground of some specifically “Jewish” features of his character (some of them being described as rather negative ones).
25 Tribunal de Grande Instance de Grenoble 18 December 1973 Dalloz 1975–489 note Foulon-Piganiol (the caricatures represented Arab, Spanish and Portuguese workers as repulsive people).
26 See for instance the decision of the Cour d'Appel de Paris of 17 June 1974 reversing a previous judgment of the Tribunal de Grande Instance de Paris, releasing the author of such an article: Dalloz 1975–468 note Foulon-Piganiol. With respect, it seems that Judge Foulon-Piganiol underestimates the importance of the problem (since it was very clear in the case under discussion there).
27 Cour d'Appel de Paris 12 November 1974 Dalloz–470, note Foulon-Piganiol.
28 Cour d'Appel de Douai, 25 June 1974 Dalloz 1975–492.
29 Tribunal de Grande Instance de Strasbourg 21 November 1974 Dalloz 1975–492 note Foulon-Piganiol.
30 Some of the very technical problems which have arisen as a consequence of the new Law have not been considered here. See for instance, the question of the “non public injury” (injure non publique): Henri Blin: “Une conséquence inattendue de la loi du 1er juillet 1972 sur la lutte contre le racisme: la ferte de son caractère d'infraction de presse de la contravention d'injure non publique” JCP 1973–1–2546—Also: Cass Crim. 22 May 1974 JCP 1975–18019 note Blin et Dalloz 1975 1975–128 note Foulon-Piganiol.
