Helga Law Journal - 01.01.2021, Blaðsíða 207

Helga Law Journal Vol. 1, 2021
212
International Legal Research Group
213
French Constitution provides that once France has ratified or approved a treaty,
from the moment of its publication, its authority becomes superior to laws. The
ECHR was signed by France on 4 November 1950 and ratified on 4 May 1974.
Since then, the Convention is directly applicable within the French legal system
and enforceable by the courts. Up until now, the Conseil d’Etat and the higher
judicial jurisdiction, the Cour de Cassation applied Article 55 of the Constitution to
control the conventionality of a law.9 For its part, the Constitutional Court remains
reluctant to examine the conventionality of the law since 1975.10 The European
Court of Human Rights specifies that States have an obligation to preserve the
freedom of peaceful assembly, and thus the right to protest.
1.4 The adaptation of the right to protest in reaction to social
movements
Article 16 of the Constitution provides that if the Republic’s institutions, the
independence of the nation, the integrity of its territory or its international
commitments are threatened, the President can, in collaboration with the Prime
Minister, the assemblies’ presidents, the Constitutional Court, take measures to
protect it. In fact, this article protects the public order against the exercise of
certain fundamental freedoms. In 2016, facing the migrant crisis, the Police
commissioner of Pas-de-Calais decided to adopt a decree forbidding every protest
linked with the “migratory situation in Calais”. The administrative judge rejected
it through the emergency interim proceeding considering that the context of
tension justified the prohibition.11 In another situation, the debate about the
Labour Law caused tensions between trade unions and the government that led to
many protests in Paris during the spring of 2016. In June, many people got injured
and public buildings were damaged during protests such as the Hospital Necker
for sick children.12 To control these issues, the Paris Police headquarter prohibited
the protest. The situation was resolved through an agreement between the
government and the trade unions that authorised the protest under some
conditions.13 Another example is the state of emergency, which was declared in
France from November 13, 2015, to November 1st, 2017, following terrorist
attacks in Paris. During this period, the right to protest was very restricted many

9 Since Jacques Vabre, [May 24 1975] Constitutional Council [French] and since Nicolo [20 October 1989]
Conseil d’Etat [French].
10 Decision n°74-54 DC [1975] Constitutional Council, Law Loi relative à l’interruption de grossesse
11 n° 1601013 [February 5 2016] Administrative Tribunal of Lille.
12 Sénécat Adrien, « Dégradations à l’hôpital Necker : ce qu’il s’est passé » (15 June 2016)
<www.lemonde.fr/les-decodeurs/article/2016/06/15/degradations-a-l-hopital-necker-ce-qu-il-s-est-
passe_4951016_4355770.html> accesses 2 June 2018 [French].
13 Le Monde, « Bras de fer et coup de théâtre : récit de la manifestation interdite finalement autorisée »
(22 June 2016) <www.lemonde.fr/societe/article/2016/06/22/loi-travail-la-prefecture-de-police-
interdit-la-manifestation-de-jeudi-a-paris_4955521_3224.html> accessed 2 June 2018 [French].
limitations to preserve and protect public order against the terrorist threat. The
state of emergency allowed Police Commissioner to forbid protests more easily.14
In France, in the past few years, the right to protest has not been changed by
social movement but by a conjunction for different factors. In fact, through the
state of emergency, political debate, internal crisis, or even international events
(COP 21, Euro 2016), the French government and the administrative authorities
have managed to adapt this right, prohibiting its use on some occasions, to ensure
that the public safety remains peaceful.
2 Does the national legal system provide an effective
remedy to individuals who claim that their right to
protest has been violated?
In French legislation, the right to an effective remedy is not codified in the
Constitution, although it is present in the Declaration of the Rights of Man and
the Citizen and Article 13 of the European Convention on Human Rights. In
addition, the right to protest is governed by decrees and case law, which provide
several rights and respective limitations such as the right to come and go and the
right to express one's opinions. This right must be compatible with the need for
public authorities to ensure order and security of persons and property. Under
Articles L211-1 to L211-4 of the Internal Security Code, when an association
wishes to organise an event (other than a temporary sporting competition) on a
public road, it must first declare the planned event to the mayor or High
Commissioner.15 The administration may request changes and provide technical
support. If the mayor or the considers that the planned event is likely to disturb
the public order, it is prohibited by decree and the organisers are notified
immediately. The right to protest is a fundamental freedom for the public at large
that must be respected. In case of violation of this right, there are possible
remedies. The organisers of the event may file an appeal with the administrative
court in the event of a ban, within forty-eight hours. The court deals with the
matter urgently before the date of the planned event. An appeal can be filed in
Conseil d’Etat. During these protests the police can break up the demonstration by
using force. Nevertheless, this use must be made according to two criteria: the
necessity of its use and its proportionality. Otherwise, the protesters can appeal. It
is in this context France has been convicted by the European Court of Human
Rights (ECHR) for a disproportionate use of force following the use of violence
against protesters. One such case is when a protester was battered because of their
refusal to comply with police orders. In case of arrest all rights afforded to
protesters are the same as criminal suspects. Indeed, the protester even has the

14 The Act of 21 July 2016 introduceaArticle 8 paragraph 3 to the Law about the state of emergency
of the 3 April 1955 : Any public reunion or assembly can be forbidden. The administrative authorities
have to justify that they cannot ensure the security according to their means.
15 Internal Security Code, Articles L211-1 to L211-4.