Decision no. 2019-780 DC of 4 April 2019

On 13 March 2019, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received a referral to review the law aiming to strengthen and guarantee maintaining public order during demonstrations, under no. 2019-780 DC, from Valérie RABAULT, Jean-Luc MÉLENCHON, André CHASSAIGNE, Philippe VIGIER, Joël AVIRAGNET, Ericka BAREIGTS, Marie-Noëlle BATTISTEL, Gisèle BIÉMOURET, Christophe BOUILLON, Jean-Louis BRICOUT, Luc CARVOUNAS, Alain DAVID, Laurence DUMONT, Olivier FAURE, Guillaume GAROT, David HABIB, Christian HUTIN, Régis JUANICO, Marietta KARAMANLI, Jérôme LAMBERT, Serge LETCHIMY, Josette MANIN, George PAU-LANGEVIN, Christine PIRES BEAUNE, Dominique POTIER, Joaquim PUEYO, Hervé SAULIGNAC, Sylvie TOLMONT, Cécile UNTERMAIER, Hélène VAINQUEUR-CHRISTOPHE, Boris VALLAUD, Michèle VICTORY, Clémentine AUTAIN, Ugo BERNALICIS, Éric COQUEREL, Alexis CORBIÈRE, Caroline FIAT, Bastien LACHAUD, Michel LARIVE, Danièle OBONO, Mathilde PANOT, Loïc PRUD'HOMME, Adrien QUATENNENS, Jean-Hugues RATENON, Muriel RESSIGUIER, Sabine RUBIN, François RUFFIN, Bénédicte TAURINE, Alain BRUNEEL, Marie-George BUFFET, Pierre DHARRÉVILLE, Jean-Paul DUFRÈGNE, Elsa FAUCILLON, Sébastien JUMEL, Jean-Paul LECOQ, Stéphane PEU, Fabien ROUSSEL, Hubert WULFRANC, Manuéla KÉCLARD-MONDÉSIR, Huguette BELLO, Moetai BROTHERSON, Jean-Philippe NILOR, Gabriel SERVILLE, Jean-Félix ACQUAVIVA, Sylvain BRIAL, Michel CASTELLANI, Jean-Michel CLÉMENT, Paul-André COLOMBANI, Charles de COURSON, Jeanine DUBIÉ, M'Jid EL GUERRAB, Olivier FALORNI, François-Michel LAMBERT, Paul MOLAC, Bertrand PANCHER, Sylvia PINEL, François PUPPONI, Delphine BATHO, Frédérique DUMAS, Sébastien NADOT and André VILLIERS, Members of Parliament.
It also received a referral, on the same date, from Patrick KANNER, Viviane ARTIGALAS, Claude BÉRIT-DÉBAT, Joël BIGOT, Jacques BIGOT, Maryvonne BLONDIN, Nicole BONNEFOY, Martial BOURQUIN, Michel BOUTANT, Henri CABANEL, Thierry CARCENAC, Catherine CONCONNE, Hélène CONWAY-MOURET, Michel DAGBERT, Yves DAUDIGNY, Marc DAUNIS, Marie-Pierre de LA GONTRIE, Gilbert-Luc DEVINAZ, Jérôme DURAIN, Alain DURAN, Vincent ÉBLÉ, Frédérique ESPAGNAC, Rémi FÉRAUD, Corinne FÉRET, M. Jean-Luc FICHET, Martine FILLEUL, Nadine GRELET-CERTENAIS, Annie GUILLEMOT, Laurence HARRIBEY, Jean-Michel HOULLEGATTE, Olivier JACQUIN, Patrice JOLY, Gisèle JOURDA, Éric KERROUCHE, Bernard LALANDE, Jean-Yves LECONTE, Claudine LEPAGE, Jean-Jacques LOZACH, Monique LUBIN, Jacques-Bernard MAGNER, Christian MANABLE, Didier MARIE, Rachel MAZUIR, Michelle MEUNIER, Marie-Pierre MONIER, Franck MONTAUGÉ, Marie-Françoise PEROL-DUMONT, Angèle PRÉVILLE, Claude RAYNAL, Sylvie ROBERT, Gilbert ROGER, Laurence ROSSIGNOL, Jean-Pierre SUEUR, Simon SUTOUR, Sophie TAILLÉ-POLIAN, Rachid TEMAL, Jean-Claude TISSOT, Nelly TOCQUEVILLE, Jean-Marc TODESCHINI, André VALLINI, Sabine VAN HEGHE and Yannick VAUGRENARD, Senators.
It also received a referral, on the same date, from the President of the Republic.

Having regard to the following texts:

• the Constitution;
• Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
• the Institutional Act No. 2009-403 of 15 April 2009 relating to the application of Articles 34-1, 39, and 44 of the Constitution;
• the Criminal Code;
• the Code of Criminal Procedure;
• the Code of Internal Security;

Having regard to the observations of the Government, registered on 29 March 2019;
And after having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL DECIDED THAT:

l. The applicant Members of Parliament and Senators, and the President of the Republic, refer the law aiming to strengthen and guarantee maintaining public order during demonstrations to the Constitutional Council. The President of the Republic requests that the Constitutional Council rule on the constitutionality of the freedom of assembly, freedom of expression, and freedom of movement of Articles 2, 3, and 6 of this law. The applicant Members of Parliament and Senators oppose its Articles 3 and 6. The Members of Parliament also oppose the procedure for adoption and its Article 2. Moreover, the Senators oppose its Article 8.

• Concerning the procedure for adoption of the law:

2. The applicant Members of Parliament criticised the Government's late submission of the amendments concerning fundamental liberties, during the review of the text in a public session at the National Assembly. In that they see a type of “workaround” of the right of the Members of Parliament to amend elements, who would have only been able to react through the use of sub-amendments, with very short delays. They also are critical of the absence of an impact study and opinion from the Conseil d'État on the draft law that was the source of the deferred text, when it was related to a “disguised draft of a law”. Lastly they oppose the lack of publication of an opinion given by the Conseil d'État to the Government, which had referred questions to it on an amendment that it was considering for presentation. These different elements result in a violation of the obligation of clarity and sincerity of parliamentary debate.

3. As stated in Article 6 of the Declaration of Human and Civic Rights of 1789: “The Law is the expression of the general will.” According to the first section of Article 3 of the Constitution: “National sovereignty shall vest in the people, who shall exercise it through their representatives...” These provisions impose an obligation of clarity and sincerity of parliamentary debate.

4. Firstly, when the text was reviewed in a public session at the National Assembly, the Government submitted four amendments. One of them, relating to Article 2 of the draft law, that became Article 3, was submitted after the binding deadline for amendments from Members of Parliament. However, this circumstance did not obstruct the actual exercise by the Members of Parliament of their right to amend, specifically using sub-amendments to the amendment from the Government.

5. Secondly, Article 39 of the Constitution, and the aforementioned Institutional Act of 15 April 2009, only requires that an impact study be presented and that the Conseil d'État be consulted for draft laws prior to their submission to the bureau of the first assembly called and not for proposed laws.

6. Lastly, no provision of the Constitution obliges the Government to publish the opinion it requests from the Conseil d'État on one of the draft amendments.

7. It follows from the foregoing that the objection to the violation of the requirements of clarity and sincerity of parliamentary debate must be dismissed. The referred law was adopted according to a procedure that conforms to the Constitution.

• Concerning the reference standards:

8. According to Article 11 of the Declaration of Human and Civic Rights of 1789: “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.” Freedom of expression and communication, from which is derived the right of collective expression of ideas and opinions, is even more important in that its exercise is part of democracy and one of the guarantees of the respect of other rights and freedoms. It follows that the infringements on the exercise of this freedom and this right must be necessary, appropriate, and proportional to the pursued objective.

9. It is the legislator's responsibility to ensure the reconciliation between, on the one hand, the prevention of disturbance of public order, and investigating offenders, both of which are necessary to guarantee constitutional rights and principles, and on the other hand, the exercise of rights and freedoms guaranteed by the Constitution, which include the freedom of movement and respect of personal privacy, protected by Articles 2 and 4 of the Declaration of Human and Civic Rights of 1789, as well as the right of collective expression of ideas and opinions.

10. The legislator, through Article 34 of the Constitution, as well as the principle that offences and penalties must be defined by law that comes from Article 8 of the Declaration of Human and Civic Rights of 1789, is obligated to determine on their own the scope of application of criminal law and to define felonies and misdemeanours in terms that are clear and precise. This obligation not only serves to exclude arbitrary verdicts in sentencing, but also to avoid unnecessary rigour when investigating offenders.

• Concerning Article 2:

11. Article 2 of the referred act inserts Article 78-2-5 into the Code of Criminal Procedure, which allows, under certain conditions, officers, and under their responsibility, judicial police officers, to carry out, at the location of a demonstration and its immediate surroundings, visual inspection and searching of bags, as well as searching vehicles moving, stopped or parked on public roads or in publicly accessible areas.

12. The applicant Members of Parliament assert that these provisions violate the freedom of movement and freedom of assembly, as well as the right of collective expression of ideas and opinions, and the principle of proportionality of penalties. They assert specifically that these actions would not be necessary, adapted, and proportional to the pursued objective, since other provisions that allow for carrying out such actions already exist, and their scope is very wide.

13. On the one hand, the visual inspections and bag inspections, as well as inspecting vehicles, can only be carried out to investigate and execute proceedings for the offence, provided for in Article 431-10 of the Criminal Code, of participating in a demonstration or a public assembly while carrying a weapon. They therefore pursue an objective of investigating people who committed offences that would seriously disturb the progress of a demonstration.

14. On the other hand, the disputed provisions provide for these actions to be carried out at the location of a demonstration and its immediate surroundings, and they are authorised via a written request from the district prosecutor. The result is that these actions are under the control of a magistrate from the ordinary courts, who specifies, in their request, the location and the time frame according to those established for the demonstration planned. As such, these actions can only concern specific locations and limited time periods.

15. Lastly, paragraphs II and III of Article 78-2-2 of the Code of Criminal Procedure, to which the disputed provisions refer, provide that the actions of inspection and search of bags, as well as the search of vehicles, can only lead to detaining the party concerned for solely the time necessary for said inspections and searches to be carried out. They do not, by themselves, have the effect of restricting access to a demonstration, nor do they impede its progress.

16. Henceforth, by adopting the disputed provisions, the legislator has carried out a balanced reconciliation between the aforementioned constitutional requirements, and has not infringed on the right of collective expression of ideas and opinions in a way that is unnecessary, inappropriate, or out of proportion.

17. Consequently, it follows from the foregoing that Article 78-2-5 of the Code of Criminal Procedure, which violates neither the principle of proportionality of penalties, nor any other constitutional requirement, conforms to the Constitution.

• Concerning Article 3:

18. Article 3 inserts into the Code of Internal Security the Article L. 211-4-1 allowing administrative authority, under certain conditions, to prohibit a person from participating in a demonstration in a public space. The fourth section of this Article L. 211-4-1 also allows said administrative authority to prohibit a person from taking part in any demonstration anywhere in the national territory for a period of one month.

19. The applicant Members of Parliament maintain that all of this article would go against the right of collective expression of ideas and opinions, freedom of movement, and freedom of assembly. They find, on the one hand, that this prohibition would not be necessary, as once a person has already caused a disturbance in a demonstration, they can already be subject to criminal penalties from the judicial authority, if applicable, by being prohibited from demonstrating. On the other hand, this prohibition would be disproportionate, given the scope of persons to whom it would apply. Furthermore, by allowing a prohibition of demonstration to be delivered by the administrative authority, as a preventive measure, the legislator would have violated the defendant's rights and the presumption of innocence. This article would therefore violate the right to a fair trial and the right to effective legal protection in that it authorises the administrative authority, in certain situations, to publish the order prohibiting demonstration without respecting a delay of forty-eight hours between the publication of the order and the time of the demonstration. Moreover, the fourth section of Article L. 211-4-1, which allows for pronouncing a prohibition for a term of one month, would be a violation of the principle of proportionality of penalties.

20. The applicant Senators also contend that all of this article would violate the right of collective expression of ideas and opinions, when it allows the administrative authority, in applying imprecise criteria, to pronounce a prohibition of demonstration that could be disproportionate. The constitutionality objective of accessibility and intelligibility of the law would also be violated, as the conditions of pronouncing a prohibition of demonstration would be imprecise and ambiguous. For the fourth section of Article 211-4-1, the Senators assert that the possibility for the prefect to pronounce a prohibition of demonstration on the entire territory for a duration of one month (renewable), would be contrary to the right of collective expression of ideas and opinions, in that this prohibition could apply to all demonstrations, and be renewed indefinitely. Moreover, when a prohibition on demonstration can be accompanied, for the person subject to this prohibition, with an obligation to respond, at the time of the demonstration, to summonses from any authorities designated by the prefect, this would also cause a violation of freedom of movement.

21. By applying the disputed provisions, the administrative authority can, through a reasoned order, impose on a person who presents a threat of a certain severity for public order, a prohibition to participate in a demonstration in a public space. By providing for such a measure, the legislator has undertaken to prevent the occurrence of disturbances during demonstrations in public spaces and has as such pursued the constitutional objective of safeguarding public order.

22. These provisions therefore provide the administration with the power to deprive a person of their right of collective expression of ideas and opinions.

23. However, a particularly serious threat for public order that is necessary for ordering a prohibition of demonstration must come from, according to the disputed provisions, either a “violent act” or “actions” committed during demonstrations in which there was serious bodily harm or significant material damage. Therefore, the legislator did not impose that the behaviour be necessarily related to the serious bodily harm or significant material damages having taken place during this demonstration. As well, the legislator did not impose that the demonstration covered by the prohibition be likely to cause the occurrence of such harm or damage. Moreover, the prohibition may be pronounced based on any action, whether it has a connection with committing violent acts or not. Lastly, any behaviour, however far back in time it may be, may justify issuing a prohibition of demonstration. Consequently, the disputed provisions give the administrative authority excessive latitude in judging the motives that are likely to justify the prohibition.

24. Furthermore, when a demonstration in a public space has not been declared or if this declaration was late, the order prohibiting demonstration is automatically enforceable and the person subject to this prohibition can be notified at any time, including during the demonstration to which it applies.

25. Lastly, the disputed provisions allow the administrative authority to prohibit a single individual, in certain circumstances, from participating in any demonstration in a public space within the entire national territory for a duration of one month.

26. It follows from the foregoing that, given the scope of the disputed prohibition, the motives likely to justify it and the conditions for opposing it, the legislator has infringed on the right of collective expression of ideas and opinions in a manner that is not appropriate, necessary and proportionate. Consequently, without having to examine the other objections, Article 3 is unconstitutional.

• Concerning Article 6:

27. Article 6 inserts into the Criminal Code Article 431-9-1, which provides for one year in prison and a fine of 15,000 euros for a person, within or in the immediate surrounding area of a demonstration in a public space, during which or after which the disturbances of public order are committed or for which there is a risk of being committed, to willingly dissimulate all or part of their face without a legitimate reason.

28. The applicant Members of Parliament and Senators denounce the imprecise nature of the constituent elements of this offence, which would result in the legislator being in “incompétence negative”, or not fully acting within their jurisdiction, and a violation of the principle that offences and penalties must be defined by law. In this area, they criticise the difficulty of judging the notion of partial hiding of the face. The applicant Members of Parliament further assert an insufficient characterisation of the element of intention, since it is not required that the person who hides their face actually participate in the reported disturbances of public order. Moreover, according to them, the offence also violates the principle of proportionality of penalties. Lastly, the applicant Senators, for their part, are critical of the imprecision of the circumstance of disturbances to public order occurring “after” a demonstration, or of the risk of committing disturbances to public order.

29. Firstly, retaining as a constituent part of the offence, the act of willingly hiding a part of the face, the legislator focused on the circumstance in which a person intends to hide their identity, by covering certain parts of their face. It is therefore not founded on an imprecise notion.

30. Secondly, focusing on demonstrations “during which or after which” disturbances of public order are committed, the legislator has, on the one hand, precisely defined the period during which the existence of disturbances or of a risk of disturbances must be judged, which begins as soon as participants meet for the demonstration, and finishes once they have all dispersed. Moreover, referencing the risk of committing disturbances to public order, the legislator intended to focus on situations where the risks for such disturbances are clear.

31. Lastly, removing from consideration the repression of hiding the face which responds to a legitimate motive, the legislator retained a notion that does not present an equivocal character.

32. It follows from the foregoing that the disputed criminalisation does not violate the principle that offences and penalties must be defined by law.

33. Article 431-9-1 of the Criminal Code, which also does not violate the right of collective expression of ideas and opinions or the principle of proportionality of penalties, or any other constitutional requirement, is constitutional.

• Concerning Article 8:

34. Article 8 introduces a 3° bis to Article 138 of the Code of Criminal Procedure, which lists the obligations to which a person placed under judicial supervision could be subject. This 3° bis adds the obligation to not participate in demonstrations in a public space in areas determined by the investigating judge or the judge deciding on provisional detention.

35. The applicant Senators are critical of these provisions in that they allow for pronouncing a prohibition on demonstration applicable to the entire national territory and without time limits, other than those for persons placed under judicial supervision. They conclude that they violate the freedom of movement, the right of collective expression of ideas and opinions, and Article 9 of the Declaration of Human and Civic Rights of 1789, which prohibits “any undue harshness”.

36. Firstly, by applying the first section of Article 138 of the Code of Criminal Procedure, judicial supervision can only be ordered by the judge for a person that is punished with imprisonment.

37. Secondly, judicial supervision can only be decided for the needs of the investigation or as a security measure. It is up to the judge to make the planned prohibition of demonstration made by the disputed provisions proportional to the requirements justifying placing the person under judicial supervision. In this case in particular, the judge should determine the locations covered by such a prohibition.

38. Lastly, the person subject to the prohibition of demonstration can at any time request that judicial supervision be lifted, under the conditions provided for in Article 140 of the Code of Criminal Procedure. When this prohibition was declared within judicial supervision of a person awaiting trial receiving a notice to appear or subject to appearance procedures, whether with a deferred deadline or immediately, the duration of the measure is limited by the delay of the judgement itself.

39. It follows from the foregoing that by adopting the disputed provisions, the legislator has carried out a balanced reconciliation between the aforementioned constitutional requirements, and has not infringed on the right of collective expression of ideas and opinions in a way that is unnecessary, inappropriate, or out of proportion. For the same reasons, these provisions do not subject the parties concerned to an unnecessary rigour.

40. Consequently, 3° bis of Article 138 of the Code of Criminal Procedure, which violates no other constitutional requirements, conform to the Constitution.

• Concerning the other disputed provisions:

41. The Constitutional Council has not systematically raised any question of constitutionality and has therefore not ruled on the constitutionality of provisions other than those examined in this decision.

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1. - Article 3 of the law aiming to strengthen and guarantee maintaining public order during demonstrations is unconstitutional.
Article 2. - The following provisions conform to the Constitution:

• Article 78-2-5 of the Code of Criminal Procedure, in its formulation resulting from Article 2 of the referred law;
• Article 431-9-1 of the Code of Criminal Procedure, in its formulation resulting from Article 6 of the referred law;
• 3° bis of Article 138 of the Code of Criminal Procedure, in its formulation resulting from Article 8 of the referred law;
  Article 3. This decision shall be published in the Journal Officiel of the French Republic.

Ruled by the Constitutional Council in its 4 April 2019 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Valéry GISCARD d'ESTAING, Alain JUPPÉ, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI and Michel PINAULT.

Published on 4 April 2019.