Triumph or pyrrhic victory for the freedom to protest? A critical discussion of Auray v France

By Eleni Polymenopoulou

On February 2^nd 2024, the European Court for Human Rights (ECtHR) issued Auray v France, an interesting judgment condemning France for restricting freedom of speech, freedom of assembly and protesters’ freedom of movement. The judgment, which is for now available in French only, became final on May 5^th and builds on the rich discussion about confinement and crowd control measures in the context of the European Convention on Human rights (ECHR). The discussion on the right to liberty and security does not constitute a departure from the Court’s previous case law in Austin v UK in which the Court had found that ‘kettling’(i.e. the confinement of protesters with a cordon) cannot constitute an arbitrary deprivation of liberty. Unlike Austin however, in Auray the facts were examined by the Court in light of the freedom of movement (guaranteed under Article 2 of Protocol 4 to the ECHR (P4-2) that France, unlike the UK, has ratified), and freedom of association that was raised by the applicants. The Court unanimously held in favour of the applicants, and condemned France for violations of both freedom of expression and freedom of assembly under the ECHR. This however was not because of the illegality of the particular preventative technique of crowd control; rather, because it was lacking a legal basis that was sufficiently clear and precise.  

A summary of the facts

In October 2010 a number of protests took place for over a week in the centre of Lyon. The protests were a response to the first drafts of the French legislation on pension reforms (on the pre-retirement consequences of this law, see this thesis). Alongside peaceful protesters, there were also ‘trouble-makers’[1] (the so called ‘casseurs’, according to the term used by the French Government), including high school students who engaged in vandalism of surroundings and buildings in the public space, burning garbage bins and throwing projectiles against public transport and police forces (paras. 7-10 of the judgment). On October 21^st the demonstrations peaked, with over six hundred individuals gathering from late morning in Place Belcourt and its surroundings. The troublemakers, however, including highschoolers, again started hurling projectiles at the police forces, degrading property, and damaging vehicles that were close to the demonstration square (para. 10). Early in the afternoon and in order to isolate them, the police ordered the organisers to relocate the demonstration to another square (para. 14) and sealed all access from and to Place Belcourt (para. 15). Still, around three-hundred individuals refused to leave. By 2pm clashes with the police intensified, while the police responded to projectiles with lachrymatory agents and water cannons (paras. 17 and 18). There was a decision to clear Place Belcourt around 5pm in the afternoon, although approximately a hundred people identified as ‘not being casseurs’(sic) and were authorised to leave even earlier, around 3.30pm (paras. 17 and 71). Others, however, were not able to leave until later in the afternoon – among them the twelve applicants, all French nationals aged between the ages of 30 and 62 years old (Annex). Throughout the days of protest, there were hundreds of arrests and interrogations, including over six hundred identity checks and over fifty arrests on that day alone (paras. 19 and 20).

Before the lower courts, the applicants – acting as civil parties joining criminal proceedings – claimed that the police forces had violated French law (432-7 et 225-1 of the French penal code) (paras.39-42), by arresting them and confining them arbitrarily (and also, that the police discriminated against them), hence arbitrarily interfering with their fundamental rights (para. 25). This complaint, however, was dismissed by the First Instance Court of Lyon, and the investigation ended (First Instance Court (TGI) of Lyon, 2 February 2017). The decision was confirmed by the Lyon Court of Appeal, which found that the relevant decisions of the police were taken on the grounds of protection of public order and public safety, and as such were justified in a democratic society (judgments of 26 October 2018 and 5 March 2018). The Appeal Court also found that the question of deprivation of liberty was not relevant, since the measures were ‘specifically adapted to the circumstances of that afternoon and lifted shortly after the events’. Interestingly, this Court came to the conclusion that there was no violation of articles 10, 11 and P4-2 of the ECHR (given the applicability of the ECHR in the French legal order since 1986) by reference to the principles of necessity and proportionality of the restrictions to these rights.

The French Court of Cassation was seized following an appeal on points of law by the applicants. This Court requested the French Constitutional Council for a preliminary ruling on the constitutionality of art.1 of law no. 75-93(1995) (later incorporated in the ‘Code of internal security’) which conferred on the State a general duty of maintaining public order in order to maintain security). More specifically, the contentious section of the law provided that

The question before the Council was whether specifically the phrase ‘…and public order’ was constitutional. According to the applicants, this provision was unconstitutional, because of the lack of sufficient guarantees that would safeguard fundamental rights in case of use by the police  of the so called encerclement of the protest (i.e. ‘kettling’) (para. 27). The Constitutional Council however ruled that the provision was constitutional, since the purpose of this provision was to recognise the general mission of the State to ensure public order, and that this provision did not mean to determine the specific techniques used by the police forces in preserving public order. Following this ruling, on 22 June 2021, the French Court of Cassation ruled that the ‘kettling’ of protesters in Place Belcourt during the events was justified in order to ‘prevent grave violence’ and guarantee public order, and that it was necessary and proportionate both in principle and in practice (para. 31).

A summary of the Court’s judgment

The applicants complained before the ECtHR about a violation of their rights under the ECHR, in particular the right to liberty and security of the person (Article 5 §1), freedom of expression (Article 10), freedom of association (Article 11), and freedom of movement (P4-2). The first claim resting on Article 5 was declared inadmissible by the Court ratione materiae (para 74). To come to this conclusion, the Court extensively referred to the principles established in Austin– a much discussed case in which the Court found that the decision of the police authorities in Britain to ‘kettle’ (i.e. contain by cordon) thousands of people protesting at Oxford Circus for hours (including even some random individuals) did not violate the Convention because of a public safety exception. In Austin, in which no violation of Article 5 was found, the Grand Chamber agreed with the Lords that, while ‘kettling’ could in principle constitute deprivation of liberty, in exceptional circumstances it would not, given that the police must be afforded a degree of discretion –because of the specific context in which the techniques are deployed; and because there is a ‘real risk of serious injuries against persons and goods’ (Austin, paras 56-60). Having reiterated these findings to the letter, in Auray (paras 57-74) the Courtconcluded that Article 5 is inapplicable. Unlike in Austin, however, in the case at hand the Court had the opportunity to discuss also potential restrictions to the applicants’ freedom of movement (P4-2), as France is a party to Protocol 4. In this respect the Court noted that French law (namely the general public order provision) did not define with precision the circumstances under which confinement of protesters would be acceptable. It subsequently found that the these restrictions had failed the legality test, within the meaning of the Convention.

Moreover, again unlike Austin where such claim was not brought, the Court in Auray considered freedom of association in light of freedom of expression (according to the Court the former is lex specialis compared to the latter in the case of protests). In this respect the Court found a violation of Article 11, again for failing the legality test – i.e. because any law restricting protests should be sufficiently clear and precise. It is worth noting that the ECtHR referred to the views of the French ‘Defenseur des droits’ (an independent French administrative authority mandated to safeguard civil liberties) in coming to this conclusion. The Defenseur had been consulted during domestic proceedings and had come to the same conclusion as the Court, namely, that the techniques of crowd control and confinement should be thoroughly regulated (paras. 43-5). In fact, following the recommendations of the Defenseur, a thorough policy framework (‘schema national’) on protest regulation was indeed adopted in July 2020. The framework described the conditions under which ‘kettling’ and other similar techniques would be legitimate, emphasising that it should abide by strict necessity and proportionality standards. As also noted by the Court, this framework was not yet effective at the time of the judgment. To sum up, the Court unanimously declared article 5(1) inadmissible and unanimously found violations of articles P4-2, 10 and 11 of the Convention. Also, by five votes to 2, the Chamber rejected the 5,000 euros claim of the applicants as just satisfaction for their legal fees, only granting the applicants the amount of 1,714,28 EUR.

Discussion of the case

Considering the current situation on protest violence around the world, and especially in France, a case like Auray looks like a gem. The judgment is more than topical and comes at a significant moment, where the law and policy framework regulating protests in France is being increasingly criticised for demonstrating restrictive, if not repressive, trends. This is not only the case in relation to protests about the French-specific situation as in the case of the 2021 “yellow vests” protests, where police violence (as in the case of the 20 year old Franck Didron, who was blinded after police used rubber bullets) and efforts to stop reporters from covering had peaked. It is also the case in protests on matters of global interest. This includes the anti-racist protests following the death of George Floyd; environmental protests; as well the current pro-Palestinian protests against governmental support for the many civilian deaths in Gaza.

On the face of it, therefore, the takeaway of the case is important: police restrictions against protests under certain circumstances may amount to a violation of the ECHR. The Court was unanimous in finding violations of Articles 10 and 11, thereby unanimously disagreeing with the highest interpretative authority of France (which applies the Convention as part of French law). In and by itself this is noteworthy given that the French Constitutional Council has a long tradition of being the guarantor of fundamental rights, and the ECtHR did not hesitate to disagree with it. At the same time, as it will explained in more detail in the next paragraphs, there are many reasons for which this case falls short of being a landmark case vindicating freedom of speech and the right to peaceful assembly.

A first shortcoming of this judgment is that it does not go in any depth in discussing the relationship between Article 5 and P4-2. The Court conveniently aligned itself with its previous jurisprudence and the findings in Austin according to which preventative techniques such as kettling cannot constitute an unlawful confinement, nor a breach of Article 5 of the Convention, in cases where there is a clear risk of escalation of violence. That one case however, on which the ECtHR heavily relies, has been criticised for being an unsuccessful interpretation of deprivation of liberty under Article 5 ECHR (see on this the insightful comment by David Mead) and for marginalising human rights (as Fenwick has argued elsewhere). Instead, the Court manages to circumvent the problem by addressing the situation through the angle of the right to freedom of movement. This point, again, could have been more elaborate, especially in relation to the proportionality component. This is because, while restrictions to the two rights are a matter of ‘degree or intensity’ and not of ‘nature or substance’, the degree of protection against arbitrary detention is much higher than that against common restrictions of the freedom of movement (for an overview, and a discussion on the exhaustive list of exceptions to article 5(1), see this piece). A better argumentation therefore was necessary here in relation to the non-applicability of Article 5 – in order to explain better why those who are caught indistinguishably by police measures are simply prevented from moving and not arbitrarily confined. This was also flagged by the dissenting judges Tulkens, Spielmann and Garlicki in Austin, who pointed out that the wording of the particular statement in Austin related to the exceptions to Article 5 ‘appears dangerous […] in that it leaves the way open for carte blanche and sends out a bad message to police authorities’ (at para 7 of the opinion in fine).

Secondly, this approach of the Court does not refer to international standards on the right to peaceful assembly and recent relevant guidelines specifically in relation to ‘kettling’ and other similar techniques. It is well known that in many other cases, the Court has not hesitated to engage in judicial dialogue and refer to other bodies, including judicial and quasi-judicial bodies, when materials are relevant. In the current case, relevant materials range from the OSCE guidelines, to the recent UN General comment 37 on the freedom to peaceful assembly (article 21 of the ICCPR). Both instruments point out precisely that ‘State intervention should target individual wrongdoers, rather than all participants more generally’ (OSCE, para 217). The problem with kettling and similar crowd control measures is precisely the fact that everyone is encompassed by these increasingly violent and oppressive measures indiscriminately (see also Oreb’s piece). It is true that the Court does make a useful distinction between protesters and troublemakers. This, however, is a reference to the French government’s views and does not seem to play a critical role in the discussion of the case. Both the aforementioned OSCE Guidelines and General Comment No. 37 make it a duty for law enforcement officers to distinguish between peaceful and non-peaceful participants since ‘only those who themselves take part in violence forfeit the legal guarantee of their right to assemble’. The Court fails to take such considerations into account, causing its approach to be insufficiently thorough.

Last but not least, as per the standard approach of the Court, a finding that the interference with the Convention rights was not ‘prescribed by law’ dispenses with the need to verify whether the other requirements, and in particular the necessity and proportionality of the interference, are complied with. Hence the Court finds that the State failed to prove the legitimacy of restrictions at the level of the legality test, because the legal framework (i.e. article 1 of the law about internal security, and the aforementioned public order provision) was not ‘sufficiently precise’. It did not however seize the opportunity to examine in more detail the substantial issues raised with respect to the necessity (or eventually proportionality) of such restrictions to freedom of assembly in a democratic society. By succinctly referring to the legality test alone, the Court avoided the hurdles that would have been raised by the necessity test, as well as those raised by the ‘incremental use’ (to use Gerards’ wording) of the margin of appreciation doctrine. The requirement of necessity of such measure in a democratic society would have also made necessary a discussion about liberal and democratic values such as the need for political participation (for an insightful critique on Macron’s understanding of liberalism in relation to crowd control in France, see this piece). Such discussion however clearly goes beyond the regulatory basis of kettling.

Conclusion

The judgment is at its face a victory for protesters’ rights, sending a message to Ministries, police forces and other agents of public administration in Member States of the Council of Europe to abide by the rule of law and ensure that regulation exists before police action is taken. In terms of substance, however, its contribution to the discourse on democratic freedoms, and the need of such restrictions to freedom of assembly is marginal. The focus on legality leaves the question of future potential abuses open. In other words, the crucial ‘if’ of protest confinement techniques remains: what would happen if the law was sufficiently precise and sufficiently foreseeable, and still offered the possibility to ‘kettle’ protesters (as in fact is already the case, since in 2020 the relevant French policy was amended)? To what extent is the increasing use of violent confinement techniques employed by European police forces in the quelling of protests legitimate? And what about the remaining requirements of legitimacy of such interferences with fundamental rights, and in particular the necessity and proportionality tests, in light of the current situation of increasing police violence worldwide and the trend to legitimise the recent crackdowns on protesters – not only those who protest against the pension scheme reforms, but also those who protest against civilian deaths in Gaza? And what is the relationship between ‘public order’ and other public interests that are also increasingly mentioned as legitimate grounds by States to justify the continuous broadening of police powers – such as anti-terrorism laws, and other types of ‘gag laws’ aiming at minimizing activism and dissent (as I have argued elsewhere)? These important and urgent questions are not dealt with in this case.

[1] All quotes of the judgment in this note stem from the author’s own translation, as the judgment is only available in French.