Helga Law Journal - 01.01.2021, Blaðsíða 212

Helga Law Journal Vol. 1, 2021
216
International Legal Research Group
217
expression, to attract public opinion to think about them, and to inform them
about societal issues and to publicize their ideas, while pressing on the notion of
peaceful assembly.
3.2.2 The change in French jurisprudence
In 1995, the Constitutional Council defined a new constitutional value, a
"collective right of expression of ideas and opinions" of which the right of
assembly is a part.
During the visit of the President of the People's Republic of China in 1994,
an association wanted to demonstrate. A decree of the Paris Police Commissioner
of Police prohibits all the events planned during this visit. The Council of State
admitted the illegality of the decree by showing the disproportion between the
threat and the decision taken by the decree. Indeed, to ban all demonstrations in
Paris exceeded the circumstances of the event. The Council of State restricted itself
to admitting that measures could be taken around the embassy but not throughout
Paris. The control exercised here by the Council of State differs markedly from the
one operated in 1952 since the judge here decides on the adequacy of the measure
with regard to threats to public order, and only on it. Rejecting in passing the
motive of the decree showing the risk that these demonstrations undermine "the
international relations of the Republic".
These judgments take note of the requirements of European law, the control
of measures prohibiting this freedom is increased.
Case law of the European Court of Human Rights has thus allowed the
freedom to demonstrate to take a more important place in France despite the
absence of texts of the latter.
4 How has your country applied derogations from
state obligations regarding the freedom of
assembly in times of public emergency threatening
the life of the nation according to Article 15 of the
ECHR?
Article 15 of the ECHR allows States parties to apply derogations from certain
rights mentioned in the ECHR. Paragraph 1 of this article authorizes States to
delegate the obligations provided for in the Convention “in time of war or other
public emergency threatening the life of the nation”. A State cannot take measures
contradicting obligations from international law. The paragraph 2 specifies that no
derogation from article 2, 3, 4 or 7 will be admitted.20 Also, any derogation from

20 Right to life except for licit war death (article 2), Prohibition of torture (article 3), prohibition of
slavery and forced labour (article 4) and no punishment without law (article 7).
Protocol n°6, article 1st, Protocol n°13, article 1st and Protocol n°7, article 421 is
prohibited. The State availing itself of this right of derogation must keep the
Secretary General of the Council of Europe fully informed.22
4.1 The reservation regarding interpretation of Article 15 of the
ECHR
In 1974, in relation to the ratification of the ECHR, France chose to submit a
reservation of interpretation under Article 15§1. The Convention leaves France
with a discretionary power to lay down the qualification of the public emergency
provided in the ECHR article. The triggering of the exemption takes place under
the conditions dictated in the article 16 of the French Constitution23 and the laws
related to state of emergency and state of siege. The Convention described two
types of situations: “war” or “other public emergency threatening the life of the
nation”. Furthermore, Article 16 of the Constitution refers to a threat to “the
independence of the Nation, the integrity of its territory or the fulfilment of its
international commitments”. The law related to the state of emergency includes in
its first article an imminent risk resulting from a serious disruption of public order
or events which amount to a public disaster.24 The Constitution extends the
situations of derogation in comparison to Article 15 ECHR that insist on the
exceptionality of the measure. The conditions of war or threat of the nation are
not necessary in France to apply Article 15. The conditions of Article 16, the state
of emergency or the state of siege may justify its application. Moreover, the
proportionality control between the derogative measure and the threat of the
nation is applicable in the cases prescribed by Article 16. French administrative
judges check proportionality, note European judges. Some French jurists criticize

21 Abolition of the death penalty in peacetime (article 1st, Protocol n°6), abolition of the death penalty
in all circumstances (article 1st, Protocol n°13) and right not to be tried or punished twice (Article 4,
Protocol n°7).
22 Factsheet, Derogation in time of emergency, April 2018, Press Unit, European Court of Human Rights
[English].
23 “Where the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfillment
of its international commitments are under serious and immediate threat, and where the proper functioning of the
constitutional public authorities is interrupted, the President of the Republic shall take measures required by these
circumstances, after formally consulting the Prime Minister, the Presidents of the Houses of Parliament and the
Constitutional Council.
He shall address the Nation and inform it of such measures.
The measures shall be designed to provide the constitutional public authorities as swiftly as possible, with the means to
carry out their duties. The Constitutional Council shall be consulted with regard to such measures.
Parliament shall sit as of right.
The National Assembly shall not be dissolved during the exercise of such emergency powers.
After thirty days of the exercise of such emergency powers, the matter may be referred to the Constitutional Council by the
President of the National Assembly, the President of the Senate, sixty Members of the National Assembly or sixty
Senators, so as to decide if the conditions laid down in paragraph one still apply. It shall make its decision by public
announcement as soon as possible. It shall, as of right, carry out such an examination and shall make its decision in the
same manner after sixty days of the exercise of emergency powers or at any moment thereafter.”
24 Act n°55-385, article 1st, April 3 1955 (related to the State of emergency),. [Loi relative à l’état
d’urgence] [French].