Legal summary
October 2024
Eckert v. France - 56270/21
Judgment 24.10.2024 [Section V]
Article 11
Article 11-1
Freedom of peaceful assembly
Fine for taking part in banned demonstration in context of French “yellow vests” protest movement: no violation
Facts – On 10 May 2019, in the context of the “yellow vests” (“gilets jaunes”) movement (individuals brought together through various shared demands who had held weekly gatherings in numerous places since November 2018), an administrative order was issued banning demonstrations the following day within a circumscribed area of Bordeaux city centre.
The order came in the wake of calls on social media for a fresh day of protests to be held on 11 May 2019, without prior notification or an identified organiser. In view of previous clashes and vandalism, the aim was to prevent fresh disturbances of public order. The ban was published, in particular on social media.
The applicant was subjected to an identity check as being among the demonstrators within the prohibited area and was fined for taking part in a banned demonstration.
She challenged the fine and the lawfulness of the ban in the Police Court and, subsequently, the Court of Cassation, without success, and was convicted and fined one hundred and fifty euros for taking part in a banned demonstration.
Law – Article 11:
(a) Admissibility – Since the “yellow vests” protest movement was characterised by its loose structure and lack of hierarchy, the organisers of the rallies in question were unknown. Nevertheless, there was no evidence that those having called to demonstrate on that day had been driven by violent intentions or had otherwise disavowed the fundamental values of a democratic society. Similarly, the applicant had not been accused of any violent action or of inciting violence, and her impugned conduct was not of such a nature or degree as to remove the acts from the scope of protection of Article 11.
(b) Legal basis –
(i) Accessibility – Article R. 644-4 of the Criminal Code had been accessible, as had been the order of 10 May 2019, which had been officially published in a report available to the public online and announced in a press release disseminated on 10 May 2019, in particular on social media.
(ii) Foreseeability – As interpreted in the domestic case-law, the wording of Article R. 644‑4 of the Criminal Code was unambiguous. In particular, the offence was made out only if a prohibition order had been issued under Article L. 211‑4 of the Domestic Security Code and the accused “took part” in the demonstration; being present by chance in the area subject to the demonstration ban was not punishable. Although Article R. 644‑4 of the Criminal Code referred to Article L. 211‑4 of the Domestic Security Code (a legislative provision regulating the power to ban a demonstration) – a reference which was not, in itself, incompatible with the foreseeability requirements of criminal law for the purposes of the case-law – the Court noted that the constituent elements of the offence were clearly set out in Article R. 644‑4 of the Criminal Code and that the aforementioned reference to Article L. 211-4 of the Domestic Security Code did not extend the scope of the offence. An order banning demonstrations on this basis was sufficient for a citizen to determine the consequences of taking part in the demonstration in question.
In sum, in the Court’s view, the wording of the aforementioned Article R. 644‑4 was sufficiently clear and precise.
Moreover, the order of 10 May 2019 clearly delimited the scope of the impugned demonstration ban as to place and time.
The Court further found that the domestic courts had not interpreted Article L. 211-4 of the Domestic Security Code in an arbitrary or unforeseeable manner in holding that a demonstration could be banned where the prior notification requirement had hot been satisfied.
(iii) Whether there were sufficient safeguards against arbitrariness – The administrative authority’s discretion to ban demonstrations was regulated by the provisions of Article L. 211-4 of the Domestic Security Code and by the domestic case-law. The domestic courts, for their part, reviewed the lawfulness and proportionality of such demonstration bans. The Court found that domestic law indicated with sufficient clarity the scope of discretion conferred on the administrative authority under the impugned legislation and the manner of its exercise.
The “quality of law” requirements under paragraph 2 of Article 11 were met.
(c) Whether the measure was necessary – The applicant’s conviction had pursued the legitimate aims of preventing disorder and crime and protecting the rights of others.
(i) Whether the demonstration ban was justified – 11 May 2019 had been the “yellow vests” movement’s twenty-sixth day of protest. As to the factual circumstances put forward in support of the ban in the administrative order, circumstances which the domestic courts had regarded as established, in view of the repeated occurrence of serious incidents during “yellow vests” rallies in Bordeaux, the Court found that the domestic authorities could legitimately have considered that there had been a risk of serious clashes with the police and vandalism. There was undoubtedly a pressing social need to avert such risks.
As to the failure to comply with the prior notification requirement, the Court pointed out that this, in itself, did not necessarily justify an interference with a person’s right to freedom of assembly and, in its view, was a far less weighty consideration than the risk of disorder mentioned above. It pointed out that lack of dialogue with the organisers undermined the domestic authorities’ ability to plan and assess risks and made it more difficult to strike a balance between the interests at stake. It reiterated that it was important for the organisers of demonstrations, as actors in the democratic process, to abide by the rules governing that process by complying with the regulations in force. In addition, there was nothing that might justify the lack of prior notification in the present case since the demonstration in question had not been called as an immediate response to a specific political or social event.
As to the content of the demonstration ban, it had been strictly limited as to place and time. The demonstrators had been free to gather outside the specified part of the city centre, given that the mere fact of taking part in an undeclared demonstration was not punishable under domestic law. Accordingly, the domestic courts had held that the ban on demonstrations in certain parts of the city had not been disproportionate. The interests at stake had been weighed up in compliance with the criteria laid down in the Court’s case-law. In sum, the ban had not fallen foul of the requirements of Article 11.
(ii) Whether the enforcement measures taken in respect of the applicant were justified – The applicant had first been asked to leave the area but had refused to do so. She had then been subjected only to an identity check, rather than being placed under arrest. It had not been submitted – and there was nothing to suggest – that the police officers had resorted to the use of force to disperse this group of demonstrators. The applicant had merely been fined, a lenient sentence that was strictly pecuniary and relatively mild. In view of the significant risk of disturbances of public order mentioned above, the Court found that the enforcement measures taken in respect of the applicant had not been disproportionate.
Conclusion: no violation (unanimous).
(See also Kudrevičius and Others v. Lithuania [GC], 37553/05, 15 October 2015, Legal Summary; Navalnyy v. Russia [GC], 29580/12 et al., 15 November 2018, Legal Summary; Advisory opinion concerning the use of the “blanket reference” or “legislation by reference” technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the commission of the offence and the amended criminal law [GC], P16-2019-001, Armenian Constitutional Court, 29 May 2020, Legal Summary)
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This summary by the Registry does not bind the Court.
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