In recent weeks, the administrative courts have become the ground for contesting controversial measures taken by the prefects as part of the social movement against pension reform.
A new battle on the front of social protest. More than a month after the adoption of the pension reform, his opponents have not given up. They take every trip by Emmanuel Macron or a member of the government to recall their dissatisfaction, both with this criticized text and with the method used to pass it. In response, the prefectures multiply the orders prohibiting or restricting demonstrations. Witness the relative solitude of the President of the Republic during the commemorations of May 8, 1945 on the Champs-Elysées, where the prefect had prohibited any protest action.
Faced with these limitations on the right to demonstrate, associations and unions fight back in the administrative courts. The battle is then held before the judges of the interim release, in emergency procedures, which allow justice to cancel an administrative measure if it affects a fundamental freedom. The pattern has been repeated regularly since the government used Article 49.3 of the Constitution to have its pension reform adopted in the National Assembly. Outside the framework of large processions, announced and held by the inter-union, spontaneous demonstrations, sometimes violent, have regularly broken out, especially in the evening, in the major cities of France. In Lyon, for example, demonstrators ransacked the town hall of the 4th arrondissement on the evening of March 17 to 18.
Consequently, the prefects, whose mission is in particular to ensure public order, try to regulate this dispute, which sometimes gives rise to violence and degradation. By defining demonstration ban perimeters, they authorize the police to intervene and disperse the demonstrators. Any participant in these prohibited gatherings also risks a fine of 135 euros. At the request of Gérald Darmanin, the prefect of police of Paris, Laurent Nuñez, for example issued an order on April 13, to prevent any demonstration at the surroundings of the Constitutional Council, which was to deliver its long-awaited opinion on the pension reform the next day.
Opponents kept at bay
Emmanuel Macron’s attempt to turn the page on pensions on April 17, does not help. Since then, a saucepan noise accompanies almost every movement of the president or a minister. Welcomed by a casserole in Alsace on April 19, the Head of State affirms that “It’s not saucepans that will make France move forward”. Enough to raise the sound of these improvised percussions. The next day, in theHérault, gendarmes confiscate pots before a visit from Emmanuel Macron. The prefect had in fact prohibited “any portable sound device”, a rather classic formulation designating megaphones and speakers. A small line which, in fact, allowed the police to justify the seizure of kitchen utensils. “Zeal”according to the Elysee.
At the end of April, it was around the Stade de France that a whole arsenal of administrative measures was concentrated, intended to keep opponents of the pension reform at a distance. Emmanuel Macron must then attend the final of the Coupe de France, between Nantes and Toulouse. The unions wanted to take the opportunity to distribute leaflets and whistles to the public at the match. The prefecture sets up a protective perimeter with search and filtering, deploys 3,000 police and gendarmes as well as drones and prohibits the union demonstration. “It would seem quite irresponsible to let this type of event take place on the day of a big risk match”justifies Laurent Nuñez, the police chief of Paris.
The scenario repeats itself on the occasion of commemorations of May 8, 1945. For the homage to the leader of the resistance Jean Moulin, tortured in the prison of Montluc, in the Rhône, a vast security perimeter keeps the pans at a distance, several hundred meters from the president. “There has never been such a runaway”protests Serge Slama, professor of public law and co-founder of the Adelico association.
A “diverted” use of the law
Are these protest bans legal? Not always. “Some prefectures take decisions, in the form of prefectural decrees, which they know are poorly justified legally”, notes the researcher Sébastian Roché, director of research at the CNRS and author of the book Policing in democracy (ed. Grasset).
“These decisions aim, in the name of order and security, to extend restrictions on the freedom to demonstrate.”
Sébastian Roché, research director at the CNRSat franceinfo
In response, several associations are counter-attacking, almost systematically, before the administrative courts. Traditional trade unions, but also the League of Human Rights (LDH), the Syndicate of Lawyers of France (SAF), the Association for the Defense of Constitutional Freedoms (Adelico) or the Syndicate of the Judiciary (SM) . “It is our responsibility to verify that the government is in the legality”justifies Paul Cassia, member of Adelico and professor of public law. This association was set up in 2017 to be able to “challenging very quickly” decisions experienced as infringing on fundamental freedoms.
To justify the bans on demonstrations, certain prefects, in particular in the Hérault or the Doubs, rely on an anti-terrorism law, namely article L226-1 of the Internal Security Code. This authorizes the representatives of the State to set up “protective perimeters” in some areas, “Topurpose of ensuring the security of a place or event exposed to a risk of acts of terrorism”. A use “diverted from the law”disputes the jurist Serge Slama.
A shared observation up to Place Beauvau. The Director of Public Liberties and Legal Affairs of the Ministry of the Interior has indeed asked the prefects, in an e-mail consulted by Release And The worldto no longer invoke the motive of the fight against terrorism to justify security perimeters, confirming “a misuse of procedure”. “It’s clearly a victory”, comments Serge Slama, who sees there, implicitly, the sign of the fear of the executive, that “one of these cases ends in a disavowal before the Council of State”.
Orders in shambles
Two days after this reminder, during Emmanuel Macron’s visit to Château de Joux (Doubs) on April 27administrative justice did not need to intervene: the prefect himself withdrew his decree justified by the “significance of a terrorist threat”. However, the Doubs prefecture assures the Worldthat“no authority” did not intervene and that it was a “decision of the prefect, in view of certain developments in the president’s visit”.
Lawyer Claire Dujardin, president of the Union of Lawyers of France (SAF), has brought a dozen appeals in recent weeks. She estimates:
“A whole administrative arsenal is taken to prevent people from demonstrating.”
Claire Dujardin, President of the Union of Lawyers of Franceat franceinfo
Here, a prohibition order published 30 minutes after the appointment set by the demonstrators. Knowing that once the prefectural document has been published, it takes on average two to three hours for the best organized collectives to file an appeal for interim relief, which leaves 48 hours for the courts to decide. Sometimes it is therefore too late for a judge to rule. On April 4, the Paris administrative court also ordered the prefect of police to publish his orders prohibiting assembly before they come into force.
There, a measure that is difficult to read or inaccessible to the public. In Paris, itsome arrested are taken “in catimini”, deplore the Syndicate of Lawyers of France on Twitter. “No broadcast on social networks, no map”, illustrates the union. For some events, no text is put online, but “a simple posting on the panel in front of the prefecture, illegible, in disorder, with superimposed pages” And “two corrective orders”denounces again FAS.
A “worrying” repression
The legal battle, which has been underway for several weeks, will not remain confined to these emergency procedures, piecemeal. Associations want to see further. The Adelico thus filed an appeal before the administrative court on the merits for “excess of power”, in Hérault, after the prefecture’s decision to establish a protective perimeter during the visit of the Head of State.
A procedure which, if it arrives on appeal and in cassation, could take several years. “The idea is to protect the future and establish case law”justifies Serge Slama.
The president of the SAF announces that she will soon accompany individuals in liability proceedings. This approach exists when decrees have been suspended by the administrative court, but in fact, the police have nevertheless applied the measures and imposed fines. “During the game at Stade de France, for example, we saw that demonstrators had equipment seized and that people were prevented from demonstrating”relates Toulouse lawyer Claire Dujardin.
The Toulouse lawyer regrets always maintaining order “more repressive and detrimental to freedoms”. “We are in a very worrying gear”, she warns. A mechanism engaged since 2015, after the attacks which plunged France into mourning and led to the establishment of a state of emergency.
“This was also the case during the ‘yellow vests’ movement: we use public order to restrict freedoms.”
Paul Cassia, professor of public lawat franceinfo
And to add: “The current government is pursuing this line and accelerating the trend, since the pension reform.”
Their fight also extends to the new and controversial use of drones in law enforcement. During the May 1 rallies, several prefectures authorized the police to deploy these flying machines, a first on such a scale. These decrees, disputed, have mostly been validated by the judges in chambers. In a new protest attempt, the Adelico filed a appeal against the application decree of April 19 authorizing the use of drones by police and gendarmes. Appeal that the Council of State will have to study on Tuesday, May 16.