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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).
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 January 1st 1963, the Muslims in Algeria lost automatically their French citizenship (art.2 of executive order 1962-825) including the hundreds of thousands Muslims veterans of the French army. At the same date, the French administration set the pensions of the Muslim veterans, newly citizens of Algeria (art.71-I of law 1959-1454) at the rate of July 3rd 1962, date of independence of Algeria.
Despite the administrative supreme court ruling of April 6th 1979 (case Z. 03519), the French government legalized the discriminatory pension based on “citizenship” by article 26 of the law 1981-734.
Following the administrative supreme court ruling of November 30th 2001 (case D. 212179) which found a violation of articles 1P1 and 14 of the Convention, the French government introduced a new discriminatory pension based on “residence at the time of the first allowance of pension” by article 68 of the law 2002-1576.
Ms. Achour is a widow of a Muslim veteran of the French army (17 years of service). On November 16th 1985, she was denied a military pension following the death of her husband on the basis of her “citizenship“. On December 22nd 2003, she obtained a pension lower than the regular one received by the widows of “French” veterans. On June 16th 2006, the administration denied her the right to receive the regular pension. She challenged the decision at the administrative tribunal of Poitiers who rejected her complain on December 27th 2007. She was denied legal aid at the administrative tribunal of Poitiers and at the administrative supreme court level on the ground that her claim was frivolous. On April 22th 2009, the applicant lodged her case to the Court arguing that the lower pension based on citizenship was a violation of articles 1P1 and 14 of the Convention.
Ms. Ben Ahmed is also a widow of a Muslim veteran of the French army (15 years of service). On May 25th 2005, the administration refused to compensate her for the lower pension that her husband received and that she received following his death. On September 20th 2007, the administrative tribunal of Nantes rejected her complain. Her appeal was transferred illegally by the administrative appeal court of Nantes to the administrative supreme court. The administrative supreme court denied her legal aid and on October 21st 2008 rejected her appeal. On January 9th 2009, the applicant lodged her case to the Court arguing that the lower pension based on citizenship was a violation of articles 1P1 and 14 of the Convention. She added that the proceeding in the administrative justice system were in violation of articles 6 and 13 of the Convention (see below).
Mr. Chikr is a Muslim veteran of the French army (15 years of service). In 2006, he was receiving a monthly pension of €70 (15 times lower than the regular one) and annual allowance of €40. On April 24th and June 16th 2006. the administration refused to grant him a regular pension. He was denied legal aid at the administrative tribunals of Dijon and Poitiers and his claims were rejected by the administrative tribunals. On July 31st 2008, the administrative supreme court denied him legal aid. On November 7th 2008, the applicant lodged his case to the Court arguing that the lower pension based on citizenship was a violation of articles 1P1 and 14 of the Convention.
Ms. Kouri is a widow of a Muslim veteran of the French army (15 years of service). In 2003, she was receiving a monthly military pension of €12,22. On February 25th 2005, the administrative tribunal of Poitiers found that she was only eligible for a limited revision of her pension with effect from January 1st 1999. She was asking for revision of her pension and her husband one from September 1st 1962. On December 20th 2006, the administrative supreme court rejected her appeal. On July 18th 2007, the applicant lodged his case to the Court arguing that the lower pension based on citizenship was a violation of articles 1P1 and 14 of the Convention.
On March 2nd 2010, case Achour (22276/09). case Ben Ahmed (4301/09), case Chikr (55073/08) and case Kouri v. France (31721/07) were communicated to the agent of the French government with questions to be answered within 16 weeks. Ms. Achour, Mr. Chikr and Ms.Kouri were represented by Me Vincent Schneegans (Marseille). Ms. Ben Ahmed was represented by Me Andre Thalamas (Toulouse).
On May 28th 2010, the agency constitutional council found unconstitutional (decision 2010-1) the laws (1981-734, 2002-1576 and 2006-1666) regarding the lower pensions for veterans of the French army.
From January 1st 2011, any veteran with a lower pension can request the benefit of a regular pension under the article 211 of the law 2010-1657.
On March 23rd 2011, A committee of 3 judges of the Court decided to strike out the 4 cases after receiving promise from the French government that Ms. Achour will receive €25,000, Ms. Ben Ahmed €65,000, Mr. Chikr €95,000 and Ms. Kouri €70,000. But the French government didn’t acknowledge any violation of the Convention. The committee considered no public interest in pursuing the examination of the 4 cases.
In Algeria, 47,500 Muslims veterans and 11,000 widows of Muslims veterans might disagree with the view of the committee of the Court composed of judges Mark Villiger (Liechtenstein), Isabelle Berro-Lefevre (Monaco) and Ann Power (Ireland).
On January 12th 2010, the ECHR ruled in judgment Gillan and Quiton v. United Kingdom, that the “stop and search” of the 2 applicants, were not “in accordance with the law” because the power to stop and search under section 44 of the terrorist act 2000, was not subject to a requirement of “reasonable suspicions” (§86) and to adequate legal safeguards (§87). Therefore the Court found a violation of article 8 of the Convention and didn’t examine the allegation of violation of article 5.
The article 78-2 of the French code of penal of procedure, allows “stop” with no requirement of “reasonable suspicions”, to protect “public order” or on a road, highway near a land border, in airports, in train stations or in an area defined by an order of the local prosecutor of the Republic. Frisks and “volontary” searches are not allowed by law but widely practiced. The “stop and search” is not officially recorded if the citizen is not brought to the police station. It makes it extremely difficult for an individual to challenge a “stop and search” in an action for damages (art.5-5 and art. 13).
Furthermore, searches of vehicles on the road or in parking lots are allowed under article 78-2-2 of the code of penal procedure with no requirement of “reasonable suspicions” in an area defined by an order of the local prosecutor of the Republic. Police officers can even detain any individual stopped for up to 4 hours under article 78-3 for further verification if the individual can’t or refuse to prove his identity. The detainee is not informed of the legal basis of the “stop” (art.5-2) but can request in case of further verification, the notification of the prosecutor of the Republic and upon release a custody record. Under French law, there is no proceedings by which the lawfulness of this detention could be decided by a court (art.5-4).
In June 2009, the NGO Open Justice Initiative released his report “Profiling Minorities: A Study of Stop-and-Search Practices in Paris“, with findings of discriminatory “stop and search” based on ethnic profiling and made recommendations to the French authorities. No amendment were made to the law.
On June 22th 2010 the Court of Justice of the European Union ruled in cases Melki (C-188/10) and Abdeli (C-189/10) that a section of article 78-2 was in violation of the Schengen Borders Code (EC) 562/2006 due to the lack of requirement of “behaviour and of specific circumstances giving rise to a risk of breach of public order”. No amendment were made to the law.
In conclusion, the French “stop and search” law raises serious concern of compliance with articles 5-1, 5-2, 5-4, 5-5, 8 and 13 of the Convention. The practice of discriminatory “stop and search” could add a violation of article 14 of the Convention to the previous violations.
European Court of Human Rights News 