France: notice only for demonstrations (manifestations)

275 Cf. Richard Stone, Textbook on Civil Liberties and Human Rights, 5th edn (Oxford, Oxford University Press, 2004) at 347.

276 Helen Fenwick, Civil Liberties and Human Rights, 4th edn (London, Routledge 2007) at 456.

277 D.G.T. Williams, ‘Processions, Assemblies and the Freedom of the Individual’, Crim. L.R. 1987, MAR, 167-179.

278 H.L. Deb., Vol. cols. 814-45, October 30, 1986 as cited by Williams, ibIbid

93 In France, demonstrations (manifestations) are subject to a notification regime, while réunions (meetings taking place not on a public route) can be held without advance notice. Earlier, the original 1881 law prescribed notification also for réunions, but that was abolished in 1907, the motivation behind it being the protest of the Catholic Church.²⁷⁹

The piece of law prescribing advance notice for manifestations was a decree-law of October 23, 1935²⁸⁰ supplemented by a 1995 law²⁸¹ which gave the opportunity for the Conseil Constitutionnel to declare freedom of demonstration protected by freedom of expression of opinions and ideas under Article 11 of the DDHC.²⁸² In 2012, the 1935 decree-law and its modifications were codified into Arts L211-1 – L211-4 of the Code of internal security. ²⁸³

The CC itself has not found problematic the requirement of advance notice as such. In legal scholarship, however, the difference between permit and notification is most explicit because it relates to a general view on repression vs. prevention. French scholarship would dislike a permit system because it is a preventive type of regulation

279 Léon Duguit, Traité de droit constitutionnel, Volume 5, Les libertés publiques, 2nd edn (Paris, Fontemoing-Boccard, 1925) at 348.

280 Décret-loi du 23 octobre 1935 portant réglementation des mesures relatives au renforcement du maintien de l'ordre public.A decree-law was a special type of legislation, issued by the government on the

authorisation of the parliament. In the given case, the law authorised the government to take measures having the force of law in order to defend the franc, the French money. When in 1950 a court was asked to decide on the legality of the decree-law regulating liberty to demonstrate in order to defend the franc, it gave a rather curious reasoning. The Court of Appeals of Bordeaux found the decree-law was in accordance with the enabling law because it was in the general interest, as if everything which is in the general interest is capable of defending the franc. (Cour d’appel de Bordeaux, 18 juillet 1950, case Izaute as cited by Alain Boyer, ‘La liberté de manifestation en droit constitutionnel français’, 44 Revue française de droit

constitutionnel 675 (2001) at 693.) It is almost certain that such an interpretation would be unacceptable under the Fifth Republic, since the limits of delegation of legislative power are much stricter than in previous republics especially if it comes to ‘fundamental liberties.’ See also Marcel-René Tercinet, ‘La liberté de manifestation en France’, Revue de Droit Public, 1979, 1009, 1914.

281 Loi n°95-73 du 21 janvier 1995.

282 Décision n° 94-352 DC du 18 janvier 1995.

283 Book 1, Public order and security, Chapter 1, Prevention of attacks to public order during

demonstrations and crowdings [manifestations et rassemblements], Section 1, Demonstrations on the public road, inserted by Ordonnance n°2012-351 du 12 mars 2012

94 and as such, it is considered to be the highest danger to liberty. Repressive regimes are favoured over preventive regulation, just as advance declaration is favoured over preventive ban.²⁸⁴ If one cannot even exercise a freedom because one is preempted or influenced in it as a default rule, then the freedom at hand is not really a freedom.²⁸⁵

Therefore, French lawyers are particularly sensitive to the requirement of advance notice in the case of demonstration. There is a general fear of ‘glissement vers l’autorisation’²⁸⁶, ie a slide towards authorisation. As there is, however, in the positive law or in the history of French constitutionalism nothing which would prohibit a permit system in the case of demonstration, scholars cannot help but warning against such a possible development of the law.

Some claim that already the system (régime) in place has basically become a régime préventif instead of a régime répressif.²⁸⁷ What makes a system to be based on authorisation instead of simple advance notice is the possibility of prior ban at the occasion of the notification. If there is no notification requirement, then there cannot really be a prior restraint, since the authorities do not necessarily know in advance about the upcoming demonstration.

The notification has to be submitted between the fifteenth and the third day before the planned date of the demonstration. To hold a demonstration without notification is a delict under the Penal Code (Article 431-9). There is no mention in the positive law about a possible different deadline in specific cases, like that of an ‘urgent’ assembly. The

284 Claude-Albert Colliard & Roseline Letteron,Libertés publiques, 8th edn (Paris, Dalloz, 2005)at 73-96.

285 It is then ‘the negation of freedom’, Colliard & Letteron Libertés publiques at 82 (§ 96).

286 Colliard & Letteron Libertés publiques at 504 (§ 675-676).

287 For example, Frédéric Dieu, ‘La ’soupe au porc’ et le juge des référés du Conseil d’État de France: la validité de l’interdiction d’une manifestation discriminatoire du fait de sa nature même’, 71 Revue trimestrielle de droits de l’homme, 885 (2007) 888.

95 authority – which is not the local authority, but the prefect,²⁸⁸ the representative of the central government – is obliged to immediately give a receipt (récépissé) which would prove that the organisers did not breach the notification requirement.

Even though there is no notification requirement in the case of réunions, the préfet can authorise that a réunion take place on the public route. In that case, the organisers have to get into contact with the authorities in advance. This is, however, perceived not as a prior restraint, but as an extra possibility, therefore, it is also not subject to special guarantees.