Helga Law Journal - 01.01.2021, Síða 215

Helga Law Journal Vol. 1, 2021
220
International Legal Research Group
221
The prefects could restrain person from protest during the labour Law. The
Constitution Council decided that the measure was not proportionate and violates
constitutional rights. Article 8§3, which forbade the residence of any person
seeking to obstruct the public authorities actions, was also censored but the
legislator manages to make it more flexible it including the condition of a “serious
reason to think that the person can represent a threat to the security and the public
order”.
In conclusion, France applied Article 15 of the ECHR in the context of the
state of emergency between November 13, 2015, and November 1st, 2017. During
that period, administrative police used its extended power to ban protests in order
to preserve peace and public order. The use of theses powers raised questions
surrounding the legitimacy of the protests’ prohibitions. In fact, the authorities
used the derogation of Article 15 not only to prevent France from a “public
emergency” but also to avoid any public disturbance.

5 What positive obligations does your State assume
to guarantee the enjoyment of the right to protest
and to protect against the interference of private
parties?
Article 431-1 paragraph 1 of the Penal Code provides that "the act of hindering,
in a concerted manner and with the help of threats, the exercise of freedom of
expression, of work, of association rally participants in a territorial assembly or
territorial event is punished by imprisonment and a fine of € 15,000."38 Thus, the
right to demonstrate is a right recognized and regulated by the penal code. The
article L211-4 of the code of the internal security39 decree-law of 1935 states that
"the authority invested with police powers considers that the planned
demonstration is likely to disturb public order, it is prohibited by a duly motivated
decision to avoid a cancellation by an administrative jurisdiction." To make a
prohibition order, two conditions must therefore be met: A real danger of serious
disturbances and the absence of another effective means of maintaining public
order Any prohibition order must be immediately notified by a judicial police
officer to the signatories of the declaration. The latter must, unless refused, signed
a Notification Process. If this notification is impossible, advertising must be done
by any means. If this prohibition is pronounced by the mayor, the prohibition
order is transmitted within 24 hours to the Police Commissioner. If the considers
that this prohibition is not justified, he may appeal to the Administrative Tribunal
to have the order annulled. Conversely, a Police Commissioner can replace the
mayor who has not issued a prohibition order if he considers that the event is likely

38 Penal Code, Article 431-1 para 1.
39 Internal Security Code, Article L211-4.
to disturb public order. Because the freedom to demonstrate responds to a system
of prior declaration, the judge exercises maximum control of administrative
decisions in this area, that is to say, a control that meets the standards of the case
law Benjamin (EC May 19, 1933). For example, the ban on the Tibetan community
in France on the occasion of a visit by the President of the People's Republic of
China was cancelled on the double ground that the possible violation of
"international relations of the Republic "is foreign to considerations of public
order on the one hand, and that a general prohibition order exceeded, on the other
hand, what was required by the maintenance of order (EC Nov. 12). 1997, No.
169295). The fact remains that the cancellation in 1997 of a protest order issued
in 1994 has little effect on the effectiveness of the rights of those concerned. From
this point of view, the introduction of the interim release by the Act of June 30,
2000, here as elsewhere, changed the situation: freedom of demonstration,
fundamental freedom within the meaning of Article L. 521-2 CJA ( CE, ord., Jan.
5, 2007, Min of the interior c / Assoc "Solidarity of the French", n ° 300311), can
from now on be usefully protected, whenever the administrative judge is
demanding with regard to the administrative authority, and exercises a genuine
control of the proportionality between general and absolute measure (the
prohibition) and the reality of the disturbances which it is a question of avoiding
and containing. In another case, a Police Commissioner had banned a
demonstration of police officers by an order under the pretext that it constituted
by "its very existence" a disturbance of public order. This was an error of law.
Indeed, such a conception would have led to the deprivation of the right to
peaceful demonstration of entire sections of the public service: police, but also
magistrates, high officials, etc. It was based on a misinterpretation of Article 29 of
the Decree of 9 May 1995 which only prohibits acts or remarks of "nature to bring
disrepute to the body to which it belongs or to disturb public order". A peaceful
protest, by itself, does not disturb public order. If police officers are deprived of
the right to strike and are subject to a duty of discretion and discretion, they enjoy
the freedom of demonstration on the public road guaranteed by the decree of
October 23, 1935 (under the condition of having done the subject of a prior
declaration to the competent authority, which can only prohibit it on the grounds
of a threat to public order). In the end, the Toulouse Administrative Court stated,
explicitly, that there is no incompatibility in principle between the special reserve
obligation imposed on certain officials and the exercise of the freedom to
demonstrate. In the private sector, an employer cannot prevent his employee from
going to a protest. This is an individual freedom guaranteed by law. The employer
can neither sanction nor discriminate, in terms of advancement for example, an
employee on strike. However, the latter will not be paid during his absence, unless
the strike results from a serious and deliberate breach by the employer of his
obligations, or if an agreement to terminate the strike has provided for it.