Helga Law Journal - 01.01.2021, Síða 209

Helga Law Journal Vol. 1, 2021
214
International Legal Research Group
215
same rights as anyone arrested by the police, among these rights are knowledge of
the reason for their detention and the right to speak with an attorney. They also
have the right to remain silent in the face of questions from the police. After an
arrest, a protester under arrest will be presented to a judicial police officer, who
only has the power to place them in temporary detention. The duration of the
detention shall in principle not exceed forty-eight hours. At the end of the
detention the prosecutor considers that there is sufficient evidence of an offense,
it is likely that they decide to refer the protestor to court.
3 What is the impact of the European Convention on
Human Rights and the case law of the European
Court of Human Rights on the right to protest in
your country?
3.1 Freedom of assembly never explicitly written.
3.1.1 Absent from the Constitution and the European Convention on Human Rights.
The 1958 Constitution does not make explicit mention of the right to protest. Only
the Declaration of the Rights of Man and of the Citizen of 1789, which has been
part of the Constitutional Bloc since a decision of the Constitutional Council,
evokes a semblance of this freedom in these Articles 10 and 11.
It is not written in the European Convention on Human Rights.
However, Article 11 of the Convention states that "everyone has the right to
freedom of peaceful assembly and to freedom of association...".16
The limits of that right are, moreover, laid down in the second paragraph:
Exercising these rights may not be subject to any other restrictions than those
which, provided for by law, constitute necessary measures in a society. Democracy,
national security, public safety, the defence of order and the prevention of crime,
the protection of health or morality, or the protection of the rights and freedoms
of others.17 This article does not prohibit the imposition of legitimate restrictions
on the exercise of these rights by members of the armed forces, the police, or the
state administration. By extension, these restrictions and their regime will affect
the freedom of demonstration.
3.1.2 Freedom also absent from French legislation
It is a decree-law of October 23, 1935 "Establishing Regulations on Measures
Related to the Reinforcement of Public Order" which legislates seriously for the
first time on the right to protest. Article 1, paragraph 2 states that: "All the

16 European Convention on Human Rights, Article 11(1).
17 European Convention on Human Rights, Article 11(2).
processions, parades and gatherings of persons, and, in general, all street
demonstrations, shall be subject to a prior declaration."18 A prior declaration
system with the competent authorities is in place. In addition, the competent
authority may prohibit the event if it is likely to cause public disorder.
The wish is rather to maintain public order than to authorize demonstrations.
In 1954, the Council of State validates the ban on a demonstration of the
CGT of 1952 by merely verifying the reality of the threat to public order without
questioning the proportion between the measure taken and the threat.
Thus until 1988, freedom to demonstrate was not a freedom explicitly
protected in France, neither by law nor by jurisprudence.
3.2 The evolution of the right to protest in France in relation to
the jurisprudence of the ECHR
In a 1988 judgment, the Strasbourg Court stated that:
"(...) a real and effective freedom of peaceful assembly does not
accommodate a mere duty of non-interference by the State; a purely
negative conception would not fit with the object and purpose of Article
11. (...) this sometimes calls for positive measures (...). While it is the
responsibility of the Contracting States to adopt reasonable and
appropriate measures to ensure the peaceful conduct of lawful
demonstrations, they can not guarantee it in an absolute manner and they
enjoy a wide discretion in the choice the method to use (...). In this
respect, they assume under Article 11 of the Convention an obligation of
means and not of result.”19
States are free to appreciate the manner in which freedom of expression must
be protected but must also act positively so that it can be exercised. Under
European law, measures restricting the exercise of this freedom must therefore be
proportionate.
This implies that the competent authorities should exercise caution when
analysing to analyse in detail the extent of threats to public order that the holding
of the event would weigh. And therefore, to choose the appropriate means to
prevent these threats. For an important illustration of the extent of these positive
obligations, see ECHR 2015 Identoba v. Georgia
Because no text exists, the European Court of Human Rights gradually
developed in its case-law the right to protest. This has been done on the basis of
Article 11 of the Convention, read in the light of Article 10
Today it holds that the event is a form of expression of ideas, opinions, and
positions. The aim of the protesters is to exercise their right to freedom of

18 Decree of October 23, 1935, Establishing Regulations on Measures Related to the Reinforcement of
Public Order, Article 1 para 2.
19 « Ärzte für das leben » c/ Autriche, 21 juin 1988, CEDH, n° 10126/82, § 32-34.