Helga Law Journal - 01.01.2021, Page 214

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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this leeway in interpreting the law because it might give administrative authorities
extended power.25 Consequently, despite the existence of non-derogable rights
contained in the article 15§2, they emphasize on the risk of violating a fundamental
right including the right to protest.
4.2 The application of the derogation clause in Article 15 of the
ECHR
Following the November 13, 2015, terrorist attacks in Paris, French authorities
informed the Secretary General of the Council of Europe about the state of
emergency measures involving derogations from rights guaranteed by the
ECHR.26 The state of emergency gives authorities the power to derogate from
certain rights including the freedom of association and assembly (Article 11).
France informed the Council of Europe that the state of emergency would remain
for three more months. From November 13, 2015, to the November 1st, 2017, the
state of emergency was extended six times.27 During almost two years, whenever
following a decree on the continuation of the state of emergency, France informed
the Secretary General of the Council of Europe about the intention of derogate
certain rights of the Convention. To justify the use of Article 15 of the ECHR, the
European Court of Human Rights characterized “public emergency” as an
“exceptional situation of crisis or emergency which affects the whole population
and constitutes a threat to the organized life of the community of which the state
is composed.28 In another decision, the European Court on Human Rights held
that “it falls to each Contracting State, with its responsibility for ‘the life of [its]
nation’, to determine whether that life is threatened by a ‘public emergency’ and,
if so, how far it is necessary to go in attempting to overcome the emergency”.29
Moreover, with its reservation regarding interpretation, France has even more
possibility to establish the “public emergency”. Under these provisions, France
used Article 15 to execute measures from the state of emergency. The debate
surrounding the state of emergency primarily highlights on the persistence of the
state of emergency through the years.30 On this issue, the European Court on
Human Rights established that a “public emergency” can last many years.31

25 Lambert Anaïs, Braconnier Moreno Laetitia, La marge de manœuvre de la France dans le
déclenchement d’un régime dérogatoire aux libertés fondamentales, une dénature de l’article 15 de la
CEDH ?, Revue des Droits de l’Homme, January 2016 [French].
26 Secretary General of the Council of Europe, France informs Secretary General of Article 15 Derogation of
the European Convention on Human Rights, Council of Europe Portal, 25 November 2015 [English].
27 Law n° 2015-1501, November 20 2015, Law n°2016-162, February 19 2016 , Law n°2016-629, May
20 2016, Law n°2016-987, July 21 2016, Law n°2016-1767, December 19 2016 and Law n°2017-1154,
July 11 2007 (extending the application of Act n°55-385, April 3 1955, State of emergency)[Lois de
prolongations de l’état d’urgence prévu par la Loi du 3 avril 1955 relative à l’état d’urgence] [French]
28 Lawless v. Ireland (No 3) [1961], §28 ECHR [English].
29 Askoy v. Turkey, [1996] §68 ECHR [English].
30 Hervieu Nicolas, Etat d’urgence et CEDH : de la résilience des droits de l’homme, Dalloz Actualités,
December 1st 2015.
31 A and others v. United Kingdom [2009] §178. ECHR [English].
4.3 The consequences of the derogation provided in the article
15 of the ECHR on the right to protest
During the state of emergency, the right to protest was one of the rights most
affected. Article 8§1 and §2 of the Act of April 3, 1955, related to the state of
emergency provided that the Minister of the Interior and the Police Commissioner
can ban any protest, general or particular, threatening public order. Article 8§332
specifies that if administrative police cannot ensure the security of the public
protests, it can withdraw permission for that rally to be held it. The right to protest
was restrained as a collective freedom and many oppositional protests that might
cause public disorder were banned.33 According to the Ministry of the Interior,
between November 14, 2015, and May 5, 2017, prefects issued 155 decrees
prohibiting public assemblies.34 For example, in December 2015, the authorities
banned public reunions during the 21st Conference of Parties (COP 21) to preserve
public order. In other areas of France, public assemblies were prohibited. During
the Labour Law debates, protests were prohibited in many areas of France such as
Nantes. In 2016, the public assemblies related to the migrant crisis, both pro and
cons migrants, in Calais suffer bans from Pas-De-Calais prefect.35 The use of
Article 15 with the state of emergency gives administrative authorities more power
to ban public pacific assemblies. This extended power allowed prefects to use
decrees in order to forbid protests. Theses decrees are not used to avoid terrorist
attacks but more generally to maintain public order. Beside general prohibitions,
Police Commissioner issued 683 individual measures of refusal of the right to stay
or entry in France. 639 of these individual measures were taken to prevent people
from participating to public protests during the Labour Law reforms.36 In a
communication, the Rapporteurs of the National Assembly explained that the state
of emergency allowed prefects to ban protests as a precautionary measure justified
by the preservation of public order.37 However, the Constitutional Council
censored the part of the article 5 of the Act of 3 April 1955 considering these
provisions contrary to the Constitution. Article 8§2 provided prefects to issued
protection or security areas where the residence of foreign nationals was regulated.

32 Note 15 : The law of the July 21 2016 introduce the article 8 paragraph 3 to the Law about the state
of emergency of the April 3 1955 [French].
33 Hennette-Vauchez, Stéphanie, « La liberté de manifestation » (12 October
2017)<https://actu.dalloz-etudiant.fr/focus-sur/article/la-liberte-de-
manifestation/h/23fe7b601eafb0c8c892f86635348257.html> accessed 10 June 2018 [French].
34 Amnesty International Ltd, A right not a Threat, Report, March 2017.
35 RFI, “La prefecture interdit à Calais toute manifestation pour ou contre les migrants » (1st October
2016) <http://www.rfi.fr/france/20161001-prefecture-interdit-calais-toute-manifestation-contre-
migrants> accessed 10 June 2018 [French].
36 Pascual Julia, « Quand l’état d’urgence rogne le droit de manifester » (31 May 2017)
<https://www.lemonde.fr/societe/article/2017/05/31/en-france-les-interdictions-de-manifester-se-
multiplient_5136295_3224.html> accessed 12 June 2018 [French].
37 Raimbourg Dominique, Poisson, Jean-Frédéric, Communication d’étape sur le contrôle de l’état
d’urgence, Réunion de la commission des Lois du mardi 17 mai 2016, http://www2.assemblee-
nationale.fr/static/14/lois/communication_2016_05_17.pdf [French].