Helga Law Journal - 01.01.2021, Page 207

Helga Law Journal - 01.01.2021, Page 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.
Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
Page 15
Page 16
Page 17
Page 18
Page 19
Page 20
Page 21
Page 22
Page 23
Page 24
Page 25
Page 26
Page 27
Page 28
Page 29
Page 30
Page 31
Page 32
Page 33
Page 34
Page 35
Page 36
Page 37
Page 38
Page 39
Page 40
Page 41
Page 42
Page 43
Page 44
Page 45
Page 46
Page 47
Page 48
Page 49
Page 50
Page 51
Page 52
Page 53
Page 54
Page 55
Page 56
Page 57
Page 58
Page 59
Page 60
Page 61
Page 62
Page 63
Page 64
Page 65
Page 66
Page 67
Page 68
Page 69
Page 70
Page 71
Page 72
Page 73
Page 74
Page 75
Page 76
Page 77
Page 78
Page 79
Page 80
Page 81
Page 82
Page 83
Page 84
Page 85
Page 86
Page 87
Page 88
Page 89
Page 90
Page 91
Page 92
Page 93
Page 94
Page 95
Page 96
Page 97
Page 98
Page 99
Page 100
Page 101
Page 102
Page 103
Page 104
Page 105
Page 106
Page 107
Page 108
Page 109
Page 110
Page 111
Page 112
Page 113
Page 114
Page 115
Page 116
Page 117
Page 118
Page 119
Page 120
Page 121
Page 122
Page 123
Page 124
Page 125
Page 126
Page 127
Page 128
Page 129
Page 130
Page 131
Page 132
Page 133
Page 134
Page 135
Page 136
Page 137
Page 138
Page 139
Page 140
Page 141
Page 142
Page 143
Page 144
Page 145
Page 146
Page 147
Page 148
Page 149
Page 150
Page 151
Page 152
Page 153
Page 154
Page 155
Page 156
Page 157
Page 158
Page 159
Page 160
Page 161
Page 162
Page 163
Page 164
Page 165
Page 166
Page 167
Page 168
Page 169
Page 170
Page 171
Page 172
Page 173
Page 174
Page 175
Page 176
Page 177
Page 178
Page 179
Page 180
Page 181
Page 182
Page 183
Page 184
Page 185
Page 186
Page 187
Page 188
Page 189
Page 190
Page 191
Page 192
Page 193
Page 194
Page 195
Page 196
Page 197
Page 198
Page 199
Page 200
Page 201
Page 202
Page 203
Page 204
Page 205
Page 206
Page 207
Page 208
Page 209
Page 210
Page 211
Page 212
Page 213
Page 214
Page 215
Page 216
Page 217
Page 218
Page 219
Page 220
Page 221
Page 222
Page 223
Page 224

x

Helga Law Journal

Direct Links

If you want to link to this newspaper/magazine, please use these links:

Link to this newspaper/magazine: Helga Law Journal
https://timarit.is/publication/1677

Link to this issue:

Link to this page:

Link to this article:

Please do not link directly to images or PDFs on Timarit.is as such URLs may change without warning. Please use the URLs provided above for linking to the website.