Background

In Allouche v France [2024] ECHR 305 [in French], Ms Allouche met B, a bartender, in a café near her workplace, an association working to remember the victims of the Holocaust. They evidently struck up some kind of rapport, but after she declined B’s invitations to a date he sent her 26 e-mails expressing his disappointment and containing insults, threats of violence, rape and death, some accompanied by antisemitic remarks. His last e-mail included a photograph of Hitler [4-6].

She filed a complaint about the death threats and antisemitic insults. The police drew up an initial report accusing B of having committed a “public insult against a private person because of her race, religion or origin”, as well as “repeated death threats” [7]. The public prosecutor asked the police to “reclassify part of the facts as a non-public insult due to race, ethnicity or religion (criminal acts)”. On the following day, the duty public prosecutor at the Paris High Court asked the police to “reclassify the facts as racially aggravated death threats” [8].

The arguments

In various exchanges, Ms Allouche argued that the public prosecutors’ classification had been too restrictive: she had been threatened with rape as well as death – and they had been made because she was Jewish. As a result, she moved house, changed her place of work, ended professional and other relationships particularly linked to her Jewishness and developed Reactive Depressive Syndrome [9-13].

Before the ECtHR, she argued that the domestic courts had declined to consider the antisemitic nature of B’s offences and had therefore failed to provide her with effective and adequate protection under the criminal law from discriminatory remarks, contrary to Article 8 ECHR (respect for private and family life). Their failure to take account of the antisemitic nature of the e-mails had also breached Article 14. The French Government argued that the authorities had taken up the racist motive put forward by Ms Allouche both at first instance and on appeal. If the judges had not accepted the reclassification, it was to balance the rights of the victim against those of the accused; the accused being absent and unrepresented on appeal, he was not able to defend himself against the new classification envisaged, and the Court of Appeal had chosen not to postpone the hearing again so as not to extend the trial date unduly [48].

The judgment

The Court was unimpressed. It found two distinct failures: the criminal court had not ruled on the request for reclassification, and the court of appeal, though recognising that the facts fell within the classification of an antisemitic death threat, had done nothing to remedy the omission in the prosecution [53]. The public prosecutor could have integrated the antisemitic dimension of the facts into the criminal proceedings against B but had not done so, and B was referred before the criminal court to respond only to “simple” death threats [59]. Reclassifying the charges into more serious facts would have made it possible to recognise that Ms Allouche was affected because she was Jewish, which would have given her the possibility to file a much higher monetary claim as a civil party [60]. In summary, the French criminal courts had never taken the antisemitic nature of the facts into account [63].

The domestic authorities had failed to comply with their positive obligations under Articles 8 and 14 to provide effective and appropriate criminal protection against the racist remarks – particularly destructive of fundamental rights – of Ms Allouche’s attacker, and their failure to consider the antisemitic dimension of the case had compromised their ability to provide an adequate response [64]. There had therefore been a violation of Article 8 taken in conjunction with Article 14 [65].