Helga Law Journal - 01.01.2021, Blaðsíða 205

Helga Law Journal Vol. 1, 2021
210
International Legal Research Group
211
1 How is the right to protest guaranteed in the
constitutional framework of your country and has
been adapted in response to national social
movements?
1.1 The right to protest in the constitutional
framework of France
The French Constitution of 4th of October 1958 does not mention the right to
protest. However, the constitution through the Preamble of the Constitution of
the 27th of October 1946 protects a right related to the right to protest. Paragraph
7 of the Preamble protects the right to strike. Articles 10 and 11 of the Declaration
of Human and Civil Rights of 1789 recognises the freedom of opinion and speech
from which the right to protest derives (article 10). Theses norms are integral in
the French “Block of Constitutionality” with the Constitution of 1958, the
Declaration of Human and Civil Rights of 1789, the Environmental Charter of
2004 and the Fundamental Principles recognised by the Laws of the Republic. The
concept of “The Block of Constitutionality” refers to supreme and basic rules that
prevail over regular laws and have constitutional value. The Constitutional Council
applies these rules to control French norms, laws, and international treaties. If a
norm does not abide by the constitutional order, the Constitutional Council can,
according to Articles 541, 612 and 61-13 of the Constitution, exercise judicial review
in order to decide if the law or international treaty violates the Constitution and
related texts with constitutional value. The Constitutional Council recognised the
collective right of opinions in a decision on 18 January 1995.4 Despite the reference
to the freedom of assembly, association and expression, the Constitutional Council

1 “If the Constitutional Council, on a referral from the President of the Republic, from the Prime Minister, from the
President of one or the other Houses, or from sixty Members of the National Assembly or sixty Senators, has held that
an international undertaking contains a clause contrary to the Constitution, authorization to ratify or approve the
international undertaking involved may be given only after amending the Constitution.”
2 « Institutional Acts, before their promulgation, Private Members' Bills mentioned in article 11 before they are submitted
to referendum, and the rules of procedure of the Houses of Parliament shall, before coming into force, be referred to the
Constitutional Council, which shall rule on their conformity with the Constitution.
To the same end, Acts of Parliament may be referred to the Constitutional Council, before their promulgation, by the
President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate, sixty
Members of the National Assembly or sixty Senators.
In the cases provided for in the two foregoing paragraphs, the Constitutional Council must deliver its ruling within one
month. However, at the request of the Government, in cases of urgency, this period shall be reduced to eight days.
In these same cases, referral to the Constitutional Council shall suspend the time allotted for promulgation.”
3 “If, during proceedings in progress before a court of law, it is claimed that a legislative provision infringes the rights and
freedoms guaranteed by the Constitution, the matter may be referred by the Conseil d'État or by the Cour de Cassation
to the Constitutional Council which shall rule within a determined period.
An Institutional Act shall determine the conditions for the application of the present article.”
4 N°94-352 DC [1995] Constitutional Council http://www.conseil-constitutionnel.fr/conseil-
constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/1995/94-352-
dc/decision-n-94-352-dc-du-18-janvier-1995.10612.html [1995] [French].
never enshrined the right to protest. Nevertheless, the legislature regulates this
right and its limits.
1.2 The right to protest in the French domestic law and
practice
In the national legislative framework, the decree-law of the October 23rd, 1935,
about the regulation of measures related to the reinforcement of maintaining
public order first admits the right to protest. This norm was repealed in May 2012,
but this right remains highly regulated. The articles L211-1 and following of the
French Internal Security Code incorporate some of the previous provisions from
the decree-law of 1935. Article 211-1 authorizes processions, parades, gatherings,
and any types of protest if a previous declaration has been submitted. The article
also refers to Article 6 of the Law of the June 30, 1881, about freedom of speech
which limits the duration of the protest. Article L211-2 of the same code
establishes where the declaration of protest must be done and what the declaration
has to mention. Article L211-3 specifies that a representative of the State can
forbid any protest to preserve public peace and order, but the administrative courts
can decide if the prohibition5 is valid. The right to protest is enshrined as a
fundamental right according to article L521-2 of the Administrative Justice Code
and the higher French administrative jurisdiction, the Conseil d’Etat,6 allowing the
administrative judge to check the proportionality between absolute or general
prohibition during the référé liberté procedure.7 If those rules are violated (protest
without a previous declaration, unclear or false declaration, protest despite the
prohibition), Article 431-9 of the French Penal Code declares it is a punishable act
by up to 6-month prison sentence and a fine of 7500 Euros.
1.3 The application of Article 11 of the European Convention
on Human Rights in the French constitutional framework
Article 11 of the European Convention on Human Rights (ECHR) enshrines
freedom of peaceful assembly and freedom of association.8 Article 55 of the

5 Benjamin [1933] Conseil d’Etat Report Lebon [1933] 541 [French] : The prohibition have to be justified
by a risk of disturbing public order.
6 Ministre de l’intérieur contre Association « Solidarité des Français » [2007] Conseil d’Etat
7 Article L.521-2 of Administrative Justice Code. The référé liberté is an administrative procedure of
emergency that allow the judge to decide if a legal person violated a fundamental right. The judge has
to make the decision within 48 hours.
8 Article 11, ECHR, Freedom of assembly and association. 1. Everyone has the right to freedom of
peaceful assembly and to freedom of association with others, including the right to form and to join
trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of
these rights other than such as are prescribed by law and are necessary in a democratic society in the
interests of national security or public safety, for the prevention of disorder or crime, for the protection
of health or morals or for the protection of the rights and freedoms of others. This Article shall not
prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed
forces, of the police or of the administration of the State.