Proposal for legal cooperation to defend the general right to freedom of expression in public areas
The Legal Commission of the assembly of the Indignants Movement in Paris (Les Indignés de Paris)
As some of you are surely aware, on 17 January 2012 the Indignants Movement in Paris lodged a complaint before the French courts. The decision to take legal action followed repeated interventions by the police during the Movement’s occupation of the ¨La Défense¨ business centre in Paris; the intention was obviously to intimidate the participants and obstruct the demonstration. The principal reason for taking this matter to the courts is to protect our right to freedom of expression.
We are well aware that we are all confronted with the same problems: the oligarchy in power knows neither nationality nor frontier, and the only way to change the system, in our view, is to internationalise the combat and to create a common front. It would therefore seem logical to provide you with the basis of our legal case – especially as it rests on European law, via Article 11 of the European Convention on Human Rights and rulings by the European Court of Human Rights. As these are courts of an instance higher than our national courts combined, our arguments could prove useful to you, outside France, if you decided to take legal action against your own governments.
We hope that this offer of cooperation will be the first of many steps towards a campaign of legal collaboration at French, European and international level, aimed at defending our rights and working together to establish a genuine system of justice. Note, in this context, that the Indignants in Berlin inform us that the organiser of the Berlin Biennale (27 April to 1 July http://berlin.theglobalsquare.org/ ) has offered them a space at the festival entirely for their own use. This provides an excellent opportunity for the representatives of our different local or national legal commissions to get together and prepare a joint communiqué to the media on the legal action being taken. The lawyer defending our case would be happy to participate in the project.
With warmest regards,
The Legal Commission of the Paris Real Democracy movement
Brief summary of the case being made by the Paris Indignants Movement
I. On the right to freedom of expression
A. In French law
Article 10 of the ¨Declaration of the rights of man and of the citizen of 1789¨ protects an individual’s freedom of expression and specifies the limits: ¨No-one should be harassed for his opinions, including his religious views, provided that the expression of these does not cause a breach of the peace as established by law ¨. [Translator’s note: This and all the following legal citations are unofficial translations]
France‘s decree-law of 23 October 1935 (regulating the measures to be taken to strengthen the enforcement of law and order) sets out the following:
– Article 1: ¨A prior declaration shall be obligatory for any processions, marches and gatherings of individuals, and, in general, for any organised event in public areas. ¨
– Article 2 : ¨The declaration must be made to the town hall of the commune or to the mayors of the different communes on the territory on which the event is to be held, at least three full days and at most fifteen full days before the date of the event.¨
Article 431-9 paragraph 1 of the French penal code (Code pénal) provides that: ¨The act of organising an event in public areas without prior declaration as required by the law is punishable by a sentence of six months’ imprisonment and a fine of 7500 euros¨.
B. In European law
The European Court of Human Rights, in a judgement of 7 April 2009 ¨Karatepe and others v. Turkey¨, citing Article 11 of the European Convention on Human Rights,
– ¨any event held in a public place has the potential to disrupt the daily routine and attract hostile reactions; the Court nevertheless considers that an irregular situation does not in itself justify an infringement of the freedom to assemble.¨
– ¨The Court would again recall that these principles also apply to events and processions organised in public places.¨
– ¨if the demonstrators commit no acts of violence, it is important that the public authorities show a level of tolerance to gatherings of a peaceful nature, to ensure that Article 11 of the Convention which guarantees the right to freedom of assembly is not entirely eroded of its content.¨
It is true that the requests we made for authorisation for 4 November and the period 21 November to 27 November did not respect the conditions set out in Article 2 of the 1935 law, as they were not submitted 3 full days before the start of our occupation. In the light of the judgement made on 7 April 2009 by the European Court of Human Rights, however, this failure to respect the procedure is not sufficient to justify the infringements to the right to freedom of expression suffered by the Movement at the start of the occupation.
II. Dispersion or simply confiscation? Confiscation with intent to disperse
Article 131-21 of the French penal code sets out that ¨the penalty of confiscation is imposed in cases foreseen by the law or the regulations¨.
Article R 644-2 of the penal code sets out that: The act of encumbering public areas or of gratuitously placing objects or material in public places such that they compromise or reduce freedom or safety of movement constitutes an offence punishable by the fine foreseen for Class 4 offences. Those guilty of the offence cited in the Article above may also be punished by the confiscation of the material used or to be used to commit the offence, or of the material resulting from the offence. ¨
During our occupation of the esplanade of the Défense, the police activity was aimed in nearly all cases1 at confiscating our property (tents etc.), rather than at ensuring that we disperse2. It seems however that the confiscations were motivated not by the concern to enforce Article R644-2 of the penal code but rather by the desire to intimidate us3 and make it difficult, if not impossible, for us to hold the demonstration (bad weather conditions, etc.).
In other words, the confiscation of our property was aimed at preventing our freedom of expression.
In as far as the denial of our right to freedom of expression was illegal under Article 11 of the European Convention on Human Rights and contrary to the jurisprudence of the European Court of Human Rights, the confiscations are themselves illegal. As the confiscations were illegal, the authorities had no right to retain the confiscated property.
III. Acts of violence
Article 2 of the decree of 30 June 2011 on the use of force as a means of maintaining law and order provides that:
– ¨The use of force by the forces of law and order is possible only if the circumstances render it absolutely necessary for maintaining order in the conditions defined in Article 431-3. ¨
– The force deployed must be proportionate to the disorder to be addressed and must cease as soon as order is restored.
In the light of Article 11 of the European Convention on Human Rights and the judgement of 7 April 2009 by the European Court of Human Rights, it was our right to demonstrate and to occupy the Défense esplanade. Our gathering remained a peaceful one throughout the occupation and caused no breach of the peace. The intervention by the forces of law and order was therefore both unnecessary and disproportionate. This makes the use of force and the recourse to violence illegal.
IV. General conclusion
The repression by France’s forces of law and order of the public occupation of the Défense was performed for purposes both illegitimate and illegal in the light of the European Convention on Human Rights and of its interpretation by the European Court of Human Rights. As a consequence, any activity constituting a part of this repression – confiscation and/or damage of property, acts of violence etc. – was illegal.
Irrespective of the acts of theft, or physical violence etc., the fundamental case being brought against the forces of law and order is that, by the overall result of their activity, they denied the Movement and its members their right to express themselves freely. All those who consider that their freedom of expression was illegitimately compromised during the occupation of the Défense, or indeed at any time since the beginning of the Movement, are entitled to take the matter to court.
translation: Robert Corner