You are currently browsing the category archive for the ‘Article 10’ category.
On June 19th 2009, the French prime minister Fillon issued an executive order 2009-724 forbidding citizens to cover their faces in an area where a gathering is taking place. Covering his own face without a “legitimate reason” and if there is risk of “a breach of public order” carries a penalty of a €1,500 fine (art. R645-14 of the penal code).
On April 11th 2011, Act 2010-1192 entered into force. It forbids citizens to cover their faces in any area open to the public unless the covering is legally required, work-related, on health ground, to practice sport or during artistic and “traditional” events. Under this law, covering his own face illegally carries a penalty of a €150 fine.
The prime minister Fillon requested public employees to forbid entrance to all public facilities (train stations, metro stations, airports, courts, prisons, police stations, museums, schools, universities, hospitals, stadiums, libraries, town-halls, polling stations, driving license offices, immigration and asylum offices…) and to refuse service to citizens on the ground that their face is covered (note PRMC1106214C) even though the citizen is offering to show his face for identification purpose. In Paris, two women covering their face were arrested by male plainclothes police officers preventing them to express their opinions to journalists and to demonstrate peacefully (see below video).
On the same day Ms. S.A.S a Muslim woman, filed an application to the ECHR on the ground that the criminalization of the covering of her face when she is in areas open to public, is a violation of her right to privacy (art.8), her freedom of religion (art.9), her freedom of expression (art.10) and her freedom to peaceful assembly (art.11). She added that the ban from public facilities, the refusal of service and the risk to be fined were degrading treatments in violation of article 3. She stated that these discriminatory policies were also in violation of article 14 of the Convention.
On February 1st 2012, the application was communicated to the agent of the French Republic with questions to be answered within 16 weeks. The applicant is represented by Mr. Sanjeev Sharma (Birmingham, UK).
On December 17th 2008, the Portuguese-language newspaper Contacto owned by the media conglomerate Saint-Paul Luxembourg, published an article on children custody rights in Luxembourg. In the article, the citizens interviewed, named 2 teenagers in cases handled by Mr. Kapitene of the office of the general prosecutor (SCAS).
On January 5th 2009, Mr. Kapitene filed a criminal complain. On January 30th 2009, an investigative judge opened at the request of the prosecutor of Luxembourg, an investigation for “slander” (art.443 of the penal code) and for revealing the name of the 2 teenagers (art.38 Law August 10th 1992).
On March 30th 2009, the investigative judge Scheer ordered the police to search* the Contacto office (art. 65 of the code of criminal procedure) “to identify the offender” described as the “journalist of Contacto who wrote the article“. On May 7th 2009, 3 police officers searched the office of Contacto and seized documents and computer files on CD and USB flash drive. According to the European Federation of Journalists (EFJ), the police officers didn’t inform the Council of Press in violation of the directive of March 28th 2006 on article 7-a) of the Code of ethics.
On May 20th 2009, the tribunal rejected secretly the motion of Saint-Paul Luxembourg to suppress the search*. On October 27th 2009, the appeal court confirmed the secret ruling*.
On April 26th 2010, Saint-Paul Luxembourg filed an application with the ECHR on the ground that the police search of Contacto office was a violation of articles 8 and 10 of the Convention. On December 5th 2011, the application was communicated to the agent of Grand Duchy of Luxembourg with questions to be answered within 16 weeks. The applicant is represented by Me Patrick Kinsch (Luxembourg).
* : On January 10th 2012, Ms. Catherine Fabeck of the office of the prosecutor general (CREDOC) informed us that the order of the investigative judge and the rulings of the tribunal and appeal court were all “secret” and couldn’t be communicated to ECHR News.
In France in 2011 (5th republic), demonstrations are still regulated by the executive order of October 23rd 1935 of the president of council Pierre Laval (3rd republic), who was executed for “treason” on October 15th 1945 by a firing squad in the notorious prison of Fresnes.
Articles 1 and 2 of the the executive order require organizers of a demonstration to notify the prefect or the mayor of the reason, date, location and itinerary of the demonstration, 3 to 15 days before it should take place. “Traditional” demonstrations are exempted from the requirement. Article 3 of the the executive order allows head of local police, prefect and mayor to “forbid” the demonstration if it may disrupt “public order“. The executive order doesn’t define a demonstration or the minimum number of people required for a demonstration.
Participating in a “forbidden” or a “non notified” demonstration is not an offense under the French penal code. But a prefect, a mayor or any police officer can decide to disperse any demonstration that he thinks may disrupt “public order” (art. 431-3 of the penal code). Once the legal warnings have been made to the demonstrators by bullhorn or by firing a “red rocket” (art. R431-1 of the penal code), it is an offense to continue participating in that demonstration. It carries a penalty of 1 year in jail and a fine of €15,000 (art.431-4 of the penal code).
On January 26th 2011, a demonstration was organized to protest against a meeting at the Automobile Club of Paris in the 8th district of Paris. No dispersion order was taken. On the opposite, 70 peaceful demonstrators were kettled by military riot police (gendarmerie mobile). They were then arrested, searched, detained in a police bus and transported to a police station in the 11th district of Paris before being released without charge. According to the police department of Paris, the peaceful demonstrators were arrested to “verify their identity.” But this arrest is only authorized under art.78-3 of the code of penal procedure if the citizen refuses to disclose his identity upon request. According to witnesses and videos of the events, the demonstrators were not even requested for their identity before being arrested. Once arrested, they were not advised of their rights to a phone call and to have the prosecutor informed of their detention. Upon release, they didn’t receive the mandatory police report stating the reasons of their detention. (art.78-3 of the code of penal procedure).
On May 10th 2011, a gathering was organized in the Luxembourg gardens in the 5th district of Paris to celebrate the executive order of April 27th 1848 (2nd republic) making slavery illegal in French colonies. No dispersion order was taken. But 8 peaceful citizens were kettled by plainclothes police officers. Then they were arrested, searched, detained in a police bus and transported to a police station before being released without charge. Once again, the citizens were not requested for their identity before being arrested and upon release they also didn’t receive the mandatory police report stating the reasons of their detention. On May 26th 2011, a demonstration was organized in place de la Rotonde in the 10th district of Paris to protest against the G-8 meeting in Deauville. No dispersion order was taken. But the peaceful demonstrators were kettled by riot police (CRS) and plainclothes police officers. 95 peaceful demonstrators were then arrested, searched, detained in a police bus (video 2, video 3, video 4) and transported to the police stations of 5th, 11th and 18th district before being released without charge. They were also not advised of their rights and didn’t received the mandatory police report.
On June 19th 2011, a demonstration of “indignés” was organized in front of Notre Dame in the 4th district. No dispersion order was taken. But the peaceful demonstrators were kettled by riot police (CRS), military riot police (gendarmerie mobile) and plainclothes police officers. They were then arrested, searched, detained and transported to police stations before being released without charge (video 1, video 2).
On July 8th 2011, 5 citizens were waiting on the sidewalk of the embassy of Russia in the 16th district. They wanted to submit a 14,000 signatures petition urging Russia to execute ECHR judgment Alekseyev v. Russia (4916/07; 25924/08; 14599/09) by allowing gay-pride demonstration to take place safely in Moscow. No dispersion order was taken. But the 5 citizens including the Russian applicant Mr. Alekseyev were all arrested, detained and transported to the police station of the 4th district. Mr. Alekseyev was released only 8 hours later. On July 9th 2011, peaceful demonstrators supporting Palestine were kettled and arrested (video 2) in the 4th district.
On September 14th 2011, the French minister of interior threatened to use violence if any regular peaceful gathering of Muslims for Friday prayers will take place after September 16th 2011. On September 16th 2011, the police department of Paris expressed its “satisfaction” that Muslims renounced to gather for Friday prayers in the 18th district of Paris. On September 17th 2011, Xavier Dor organized a gathering to “pray” against the opening of an abortion clinic at the hospital Tenon in 10th district. The organizer an extreme right activist, was already condemned to fines and jail for behaviors toward abortion patients, doctors and nurse interfering with patient’s abortion (art. L2223-2 of the health code). Even though the gathering was in front of the hospital, no dispersion order was taken and no demonstrators were arrested. On September 19th 2011, peaceful demonstrators “indignés” were kettled, assaulted by pepper spray, arrested and searched in the 6th district by police officers (video 2,video 3). On September 21st 2011, peaceful demonstrators “indignés” showing their passports and identity cards were kettled, arrested, assaulted, searched, detained in police bus and transported to police stations (video 1, video 2, video 3, video 4). On September 23rd 2011, 11 citizens “indignés” were on the sidewalk, just released from the cells of the “dépôt” (jail) of the tribunal of Paris in the 1st district. A plainclothes police officer asked them illegally to disperse their gathering (see video below).
These examples shows that the police department of Paris have an administrative practice in 2011 to unlawfully detain some peaceful demonstrators to interfere with their exercise of their freedom of peaceful assembly. The unlawful detention by a police officer, is an offense carrying a maximum penalty of 7 years in jail and a 100,000 euros fine (art. 432-4 of the penal code). These interference are not prescribed by law and seems to target peaceful demonstrators on the ground of their opinion, sexual orientation and religion. In the newsletter PPrama of the police department of Paris (no181), an official acknowledged that the demonstrators “indignés” are trying to gather peacefully. But he stated that police officers have to “very reactive to strangle at birth this kind of inclination“.
Therefore the unlawful detention of peaceful demonstrators on discriminatory grounds to interfere with their freedom of peaceful assembly is a violation of articles 5-1 and 11 of the Convention in conjunction with article 14.
On December 9th 1999, Mr. Thierry Ehrmann an artist opened a museum “the Organ” which offered residency for artists in the Abode of Chaos. The domain in the town Saint Romain au Mont d’Or, is the property of the real estate trust VHI owned by the artist. On December 9th 2004, the mayor of Saint Romain au Mont d’Or complained to the prosecutor of Lyon that there was drawings and slogans painted on the outside walls of the property.
On February 16th 2006 the tribunal of Lyon condemned the artist and the real estate trust VHI to fines of €20,000 and €100,000 each for infractions to the code of urbanism and ordered the walls to be cleared of drawings within 6 months. On September 13th 2006, the appeal court of Lyon condemned the artist to a fine of €200,000. On December 11th 2007, the supreme court (cour de cassation) annulled the ruling of the appeal court (case 06-87445). On December 16th 2008, the appeal court of Grenoble condemned the artist to a fine of €30,000, awarded damages of €1 to the town of Saint Romain au Mont d’Or and ordered the walls to be cleared of drawings within 9 months. On December 15th 2009, the supreme court rejected the appeal of the artist (case 09-80709).
On December 31st 2009, the applicants lodged their case to the European Court of Human Rights arguing that the fine of €30,000 and the order to clear the drawings of the outside walls were a violation of articles 10 and 1P1 of the Convention. He added that the ruling of the appeal court of Grenoble was a violation of article 7 of the Convention because pieces of art are by law exempted from the regulations of the code of urbanism (art.R421-1 6)). The applicants are represented by Me Thierry Moulin (Lyon).
On June 7th 2011, the Court found the application to be inadmissible on the ground that the condemnation of the artist was to “defend order” therefore “necessary in a democratic society“. The Court as the French courts refused to rule if the drawings on the outside walls of the domain are pieces of art. Surprisingly the Court invokes the Framework Convention on the Value of Cultural Heritage for Society not to protect the artist drawings but to justify the order to clear them in the name of..the conservation of “cultural heritage” . The Convention have not yet been signed by France.
On July 18th 2011, the 5th section of the Court modified the decision Ehrmann and VHI v. France by removing a statement indicating that observations of the government and the reply of the applicant were received by the Court. The head of registrar of the 5th section Claudia Westerdiek didn’t answer our email for comment. According to the applicant (see below his video), he never received the observation from the French government and never submitted any. He announced his intention to file soon another application with the Court.
On March 29th 2001, the police department of Neuchatel refused to the Swiss Raelian movement the authorization to put posters from April 2th to April 13th 2001 on the ground of article 19 of the police department rules. This article allows the police department to forbid “illegal posters” or “posters threating morals“
On April 22th 2005, the administrative tribunal of Neuchatel rejected the appeal from the movement. On September 20th 2005, the federal tribunal rejected the appeal (1P.336/2005) on the ground that the interdiction of these posters was necessary “in a democratic society for the protection of morals“.
On April 10th 2006, the movement filed a case with the ECHR (see below) arguing that the interdiction to display their posters was a violation of articles 9 and 10 of the Convention. On May 20th 2008, the ECHR communicated the case to the agent of Switzerland with questions to be answered within 16 weeks. On September 9th 2008, the agent for the government submitted his observations answered on November 4th 2008 by the applicant. The Swiss Raelian movement was represented by Me Elie Elkaim (Lausanne).
On January 13th 2011, the E.C.H.R ruled by 5 to 2 votes there was no violation of article 10 of the Convention on the ground that the Swiss State benefits of a “margin of appreciation” about the use of its public space and the State has reasonable grounds to forbid the posters (59). The Court didn’t examine the allegation of violation of article 9 of the Convention.
In their dissenting opinion Judges Rozakis and Vajic expressed that the movement was not forbidden in Switzerland and should be able to promote by posters its ideas (3.a) and its non forbidden website (3.b).
On August 28th 2008, Mr. Herve Eon is arrested by plainclothes police officers while holding a placard during a visit of the French president Sarkozy at Laval. The placard was quoting an infamous sentence (“casse toi pov’ con“) pronounced by the president at the agricultural fair on February 23th 2008. The applicant was nevertheless charged for “offending the president“, a criminal offense punished with a fine of up to 45,000 euros (art. 23 of law of July 24th 1881).
On November 6th 2008, he was condemned to a suspended fine of €30 by the tribunal of first instance of Laval. On March 24th 2009 the appeal court of Angers ruled the same judgment after one of the judge presiding the appeal court, asked the applicant if he would apologize to the president for a reduced sentence. His appeal to the supreme court failed.
On November 5th 2009, Mr. Herve Eon announced that he will fill his case with the E.C.H.R arguing that his condemnation is a violation of article 10 of the Convention. He is represented by Me Dominique Nogueres also vice-president of the NGO LDH. She didn´t reply our emails after first accepting to answer our questions.
On June 25th 2002, the E.C.H.R ruled in case Colombani and others v. France (51279/99) that France violated article 10 of the Convention by condemning Mr. Colombani and Le Monde under the criminal offense of “offending a foreign head of State” (art. 36 of law of July 24th 1881). In the resolution CM/ResDH(2008)8, the committee of ministers closed the examination of the case, after having being informed that the article 36 of law of July 24th 1881 was repealed by article 52 of law 2004-204.
On October 19th 1995, Mr. Bernard Borrel a French magistrate working as an adviser for the minister of Justice of Djibouti, was found dead in the desert. His body was partly carbonized. The local police concluded that he committed suicide.
In April 1997, Ms. Elisabeth Borrel the widow of the deceased, obtained the opening of a criminal investigation for murder. In October 1997, two investigative judges based in Paris took over the investigation. In January 2000, one of the judge interrogated in unclear circumstances a key witness in Brussels.
On March 13th 2000, Ms. Elisabeth Borrel with her lawyer Me Olivier Morice announced during a press conference that they requested the minister of Justice to launch an internal investigation because the ongoing criminal investigation was neither prompt nor effective.
On March 14th 2000, Liberation published an article on the press conference. On November 14th 2001, the appeal court of Versailles condemned Liberation and its head Mr. Serge July for defamation to a single fine of €1,500 and to pay together damages of €3,000 to the two investigation judges. On February 14th 2008, the ECHR ruled in case July and Liberation (20893/03) that the condemnation was a violation of article 10 of the Convention.
On June 21st 2000, the investigation chamber of the appeal court of Paris ordered a new investigative judge to take over the criminal investigation. On September 6th 2010, Me Olivier Morice informed the minister of Justice that the two judges didn’t communicate a videotape to the new judge. He added that the investigation file contained a very unusual personal letter of the district attorney of Djibouti to one of the investigative judge. He requested the opening of an investigation by the internal affairs of the ministry of Justice.
On September 8th 2000, Le Monde published an article on the letter of Me Olivier Morice to the minister of Justice. After a first ruling of the court of appeal of Versailles was quashed by the supreme court, the appeal court of Rouen condemned Me Olivier Morice for defamation to a fine of €4,000 and to pay together with Le Monde, damages of €7,500 to the two investigative judges. On November 10th 2009, his appeal to the supreme court (Cour de cassation) was rejected (case 08-86295).
On May 7th 2010, Me Olivier Morice filed an application with the ECHR arguing that his condemnation for defamation was a violation of article 10 of the Convention and that the ruling of November 10th 2009 by a judge of the supreme court, publicly supporting one of the investigative judge was a violation of article 6-1 of the Convention. On September 6th 2010, the application was communicated to the agent of the French Republic with questions to be answered before 16 weeks. The applicant is represented by Me Julien Tardif and Me Claire Audhoui, both not available for comments.
In 2003, a book on the Borrel case, Omerta 2003 written by Ms. Sophie Floquet was published by Albin Michel headed by Mr. Francis Esmenard. On April 25th 2003, 2 investigative judges pressed charges for defamation. On December 13th 2006, the appeal court of Versailles condemned the applicants for defamation to a fine of €2,000 each and to pay together damages of €5,500 to the two investigating judges. On November 18th 2007, their appeal to the supreme court (Cour de cassation) was rejected (case 07-80504).
In 2008, the applicants filed an application with the ECHR arguing that their condemnation for defamation was a violation of article 10 of the Convention. On June 15th 2010, their applications was communicated to the agent of the French Republic with questions to be answered before 16 weeks.
On January 10th 2012, the 5th section of the Court ruled that the application was inadmissible on the ground that the allegations contained in the book Omerta 2003 were detrimental to the public image of the French “judicial institution” and the condemnation was necessary to protect the reputation of the French “judicial institution“. In its observations, the agent of the French Republic didn’t challenge the veracity of the allegations regarding the criminal investigation on the death of Mr. Borrel.
Ms. Sophie Floquet was represented by Me Antoine Comte and Mr. Francis Esmenard by Me Christophe Bigot.
French Polynesia is an overseas country of the French Republic. The coutry has its own president, ministers, national assembly, flag, currency, phone area code and is home to many local languages (Tahitian, Marquisian, Paumotu, Mangarevian) widely spoken by the population and authorized to be used in legal contract and business transaction (art. 57 law 2004-192). French is the language of the French Republic (art. 2 of the Constitution) and the official language of French Polynesia (art. 57 law 2004-192).
On May 13th 2005 a resolution 2005/559 was passed by the national assembly allowing any of his members to use French or any Polynesian languages in their speech. On March 29th 2006, the administrative supreme court (conseil d’etat) ruled that the resolution was canceled.
On September 28th 2006, the applicant filed an application with the E.C.H.R arguing that the forbidden use of Tahitian in the national assembly was a violation of articles 10,11 and 14 of the Convention.
On September 21th 2010, the Court ruled the application inadmissible ratione materiae. The applicant was represented by Me Philippe Temauiarii Neuffer.
In February 2007, the president and the general secretary of the municipal police union USPPM distributed a document to the city council members of Vendays Montalivet and key citizens, to inform them of their opinion on a work conflict between a member of their union and the mayor of the city.
On July 18th 2007, the tribunal of Bordeaux condemned the applicants for “public defamation” to a fine of €1,000 and to damages of €2,500 each to be paid to the mayor. On February 1st 2008, their appeal to the court of Bordeaux failed. On December 9th 2008, the supreme court (Cour de cassation) refused to hear their case.
On June 5th 2009, the applicants filed their case with the E.C.H.R, arguing that the judgment was a violation of articles 10 and 11 of the Convention. On June 14th 2010, the application was communicated to the French government with questions to be answered within 16 weeks. The applicants are represented by Me Dorothee Le Fraper du Helen and Me Sophie Baumel who refused to give any information or comment on the case.
On October 6th 2011, the Court found a violation of article 10 of the Convention and condemned the French Republic to pay €4,000 of damages to the applicants.