Fraisse et al. v. France: Against the Normalization of Systemic Violence in Protest Policing

By Dr. Alice Dejean de la Bâtie

Can the lethal use of an explosive grenade by law enforcement during a protest ever be justified? This question is at the heart of Fraisse et al. v. France (27 February 2025, nos. 22525/21 and 47626/21), a case brought before the European Court of Human Rights (ECtHR) following the death of 21-year-old Rémi Fraisse during a demonstration against a dam project in 2014. The case examines not only the circumstances of his death, but the legal and operational framework that allowed a military-grade weapon to be used in a civilian protest – and whether the state fulfilled its obligation to protect the right to life.

Facts

This case concerns the death of Rémi Fraisse, a 21-year-old student, during a demonstration against the Sivens dam project in southern France in October 2014. The demonstration, called and organised by a collective of associations, was attended by around 1,500 people. Violent clashes broke out between a group of masked demonstrators and gendarmes near the “zone vie” [life zone], a secure area of the construction site.

In the early hours of 26 October, at around 1.45am, Rémi Fraisse, who had earlier taken part in the peaceful part of the event, approached the confrontation zone. Although not involved in the violence, he was close to the rioters when a gendarme, a member of the French military police, acting on orders and in the dark, threw an OF-F1 grenade over a security barrier. The grenade was thrown over the fence and landed in the narrow space between Rémi Fraisse’s rucksack and his neck, where it exploded, causing fatal internal injuries from the close-range blast. His body was discovered minutes later and, despite efforts to revive him, he was pronounced dead at 1.53 a.m. The incident provoked national outrage and contributed to the eventual cancellation of the dam project.

Following the incident, the public prosecutor’s office launched an investigation into manslaughter. Experts confirmed that Rémi Fraisse had been killed by the explosion of the grenade, but the investigation concluded that the gendarme had used the grenade in accordance with the legal provisions in force at the time, under the framework authorising the use of force for crowd control. As the grenade was thrown intentionally in a manner permitted by law and without any awareness of the victim’s presence, the courts found that there was no criminal negligence and therefore no basis for a charge of involuntary manslaughter. In 2018, the case was dismissed without prosecution (TGI Toulouse, 8 Jan. 2018). The Fraisse family appealed, but the dismissal was upheld by the Toulouse Court of Appeal in 2020 (C.A. Toulouse, 9 Jan. 2020). The Court of Cassation, France’s highest criminal and civil court, rejected their appeal in 2021 (Cass. Crim., 23 March 2020, no. 20-82.416, ECLI:FR:CCASS:2021:CR00355).

Throughout the domestic proceedings, the applicants also raised concerns about the impartiality of the investigation and alleged collusion between the gendarmerie and the judicial authorities. These claims were rejected by the French courts, which pointed to the involvement of an independent investigating judge and the conduct of a full investigation.

At the same time, the applicants also brought an action before the administrative courts. In a judgment of 25 November 2021, the Administrative Court of Toulouse (TA Toulouse, 25 Nov. 2021, no. 1805497) acknowledged the French State’s strict liability [responsabilité sans faute] for the consequences of the policing operation, but found contributory negligence on the part of the victim, thus partially exonerating the State. The court awarded 14,400 euros to each of Rémi Fraisse’s parents, 9,600 euros to his sister, and 4,000 euros to each of his grandmothers. The applicants appealed, but the Toulouse Administrative Court of Appeal rejected their claims in 2023 (CAA Toulouse, 21 Feb. 2023, no. 22TL20296).

Judgment

Subsequently, the applicants brought their case before the ECtHR, alleging a violation of Article 2 of the Convention – which protects the right to life – in both its substantive and procedural aspects. They challenged the necessity and proportionality of the use of force that led to Rémi Fraisse’s death and criticised the legal framework and the planning of the police operation. They also claimed that the investigation had not been independent or thorough enough to comply with the procedural obligations incumbent on the State under Article 2.

As a preliminary point, the Court rejects the Government’s objections as to admissibility. It finds that the applicants did not lose their status as “victims” within the meaning of Article 34 ECHR, notwithstanding the compensation awarded by the administrative courts. Firstly, it finds that the applicants properly exhausted domestic remedies: their participation in the criminal proceedings constituted an adequate and effective remedy under Article 35 § 1 (§ 77). Secondly, it emphasises that the Administrative Court of Toulouse, while recognising the strict liability of the State and awarding damages to the family, did not recognise – explicitly or implicitly – a violation of Article 2 (§§ 84-85).

With regard to Article 2, the Court finds a violation of the substantive part. While acknowledging that the use of the OF-F1 grenade had a legal basis at the time and that the gendarme had not acted with the intent to kill, the Court holds that the overall legal and operational framework in place at the time of the events was inadequate (§ 126). It identifies serious shortcomings in the regulation, supervision, and planning of the operation, in particular the lack of a clear and protective framework for the use of such dangerous weapons and the absence of a civilian authority on the ground (§§ 131-132). The Court concludes that these failures meant that the level of protection required in situations involving potentially lethal force was not met.

Conversely, the Court finds no violation of the procedural limb of Article 2. It holds that the investigation into the death of Rémi Fraisse was independent, prompt, and capable of establishing the facts (§ 154). The involvement of an investigating judge, expert reports, and several judicial decisions ensured sufficient compliance with the State’s obligation to conduct an effective investigation (§ 162). The application is therefore partially successful, with a violation found under the substantive limb only. The remainder of this note focuses on the violation of Article 2 in its substantive aspect, as it raises important questions about the regulation of the use of force in public order operations – questions echoing a 2016 report by the Parliamentary Assembly of the Council of Europe, which urged states to adopt frameworks for protest policing that respect human rights (Resolution 2116 (2016)).

Commentary

A lethal act justified by law

The death of Rémi Fraisse was not the result of an unlawful act by an individual officer. As confirmed by both the domestic courts and the ECtHR, the gendarme who threw the grenade acted within the framework of a legal authorisation and could be held criminally liable under Article 122-4 of the French Penal Code, which sets out two distinct grounds of justification. Under the first paragraph, a person is not criminally liable if they perform an act prescribed or authorised by law or regulation. Under the second, a person is also not liable for an act performed on the orders of a legitimate authority, unless the act is manifestly unlawful.

In the Fraisse case, the French courts applied a combination of the two limbs of Article 122-4, even though these limbs provide for two distinct and autonomous legal justifications – each of which would theoretically have been sufficient to neutralise criminal liability. Firstly, the use of force took place in the context of a lawful crowd control operation, in accordance with Article L. 211-9 of the Code de la sécurité intérieure (CSI), which allows the dispersal of violent assemblies by force, with or without warning, when officers are attacked or otherwise unable to defend their position. At the time, the OF-F1 grenade was expressly listed in Article D. 211-17 CSI as a standard weapon for gendarmerie crowd control operations. The act was therefore authorised by law, in accordance with the first paragraph of Article 122-4 of the Penal Code.

Secondly, the gendarme acted on the instructions of his superiors within a structured chain of command, thus satisfying the second paragraph of Article 122-4. The French judges explicitly rejected the applicability of the legal doctrine of the “baïonnettes intelligentes” [intelligent bayonets] – a metaphor used to reject the idea that subordinates should always blindly obey orders – and emphasised that, in the absence of a manifestly unlawful order, subordinates are not expected to question operational instructions during active operations (§ 38). The grenade was thrown as part of a defensive manoeuvre intended to push back a group of demonstrators perceived as threatening the gendarmes’ position. The use of the grenade was not intended to injure anyone, and the fatal consequences were considered to be accidental, due to the the unusual and unforeseeable placement of the grenade between Rémi Fraisse’s rucksack and his neck.

Importantly, even if an act is formally authorised, the principles of necessity and proportionality must still be respected, particularly in the context of Article 2 ECHR (Guerdner et al. v. France, 2014, no. 68780/10, § 64 – Toubach v. France, 2018, no. 19510/15, § 36). In Fraisse’s case, the French courts consider that these conditions were met: the use of the grenade was seen as necessary to repel violent demonstrators, and proportionate to the perceived threat – in this regard, the ECtHR stresses the need to respect the difference between the immediacy of decisions taken by officers on the ground and the more detached, retrospective assessment carried out by judicial bodies (§ 118). Because the act was both legally authorised and ordered, and not manifestly unlawful, and because it satisfied the criteria of necessity and proportionality, the conditions for excluding criminal liability under Article 122-4 of the French Penal Code were deemed fully met. The French courts also excluded involuntary manslaughter on the grounds that the grenade was thrown intentionally, and that no fault could be attributed either to the gendarme or his superiors.

Yet herein lies the heart of the issue. The gendarme was not criminally at fault, not because there was no harm, but because the law itself permitted the use of lethal force in this context.

Systemic lethal violence embedded in law

As the ECtHR notes, this is where France failed: not through the individual actions of its agents, but by creating a legal and operational framework that allowed military-grade weapons to be used against civilians without adequate safeguards. The Court identifies several shortcomings.

Firstly, the French legal framework governing the use of force in public order operations was fragmented and lacked clarity, particularly regarding the definition and practical application of proportionality in crowd control situations (§§ 120-124). Secondly, there were no effective safeguards at the time to prevent the misuse of dangerous equipment that, although classified as “non-lethal,” carried a high risk of fatal injury – OF-F1 grenades were used exclusively by French forces among European countries. The ECtHR stresses that there were no binding rules prohibiting lobbed throws (“lancer en cloche”) of OF-F1 grenades (§ 125), and that there were no specific guidelines on safety distances, nor any training on the use of such grenades, despite their exceptional dangerousness (§ 126). Thirdly, the operational planning of the policing mission was inadequate. The Prefect, who had civilian authority, was absent from the scene and had delegated responsibility to the operational commanders who had to adapt in real time to an increasingly volatile situation without sufficient supervision or guidance (§§ 131–134). The Court holds that these failures meant that the level of protection required under Article 2 ECHR in cases involving potentially lethal force was not met (§ 135). This approach is consistent with the Court’s established case-law, which requires not only that force be strictly necessary, but also that policing operations be properly planned, equipped, and controlled so as to minimise the risk to life (McCann et al. v. United Kingdom, 1995, no. 18984/91; Giuliani and Gaggio v. Italy, 2011, no. 23458/02). The fact that the law permitted such use of force, without adequate safeguards, was the problem. In short, the violation was systemic. The Court awarded each applicant €20,000 in non-pecuniary damages (from which the compensation already granted by national judges was deducted), and a contribution to legal costs – an amount that arguably falls short of reflecting the gravity of the French state’s failure to protect the right to life in the context of demonstrations.

Following Fraisse’s death and mounting criticism, including from the Défenseur des droits – France’s independent body responsible for protecting rights and freedoms and ensuring the ethical conduct of public authorities – France banned the OF-F1 grenade in 2017 and later also banned the GLI-F4 grenade (§§ 67-68). Article R. 211-21 of the CSI was also amended in 2021 to strengthen civil oversight during crowd control operations and to ensure the physical presence, or at least the direct mandate, of a civil authority during such operations. In other words, the law that the ECtHR finds to violate Article 2 in the Fraisse case no longer exists. In the same vein, the Schéma national du maintien de l’ordre [National Policing Plan for Public Order, SNMO], a doctrine adopted by the French Ministry of the Interior, setting out the general principles, tactics, and operational guidelines for crowd control and the management of public demonstrations, was amended following a decision by the Conseil d’État (CE, 10 June 2021, no. 444849, ECLI:FR:CECHR:2021:444849.20210610). The Council’s decision criticised, amongst other things, the use by French law enforcement of the controversial nasse [kettling] technique – a police tactic for crowd control that consists of physically surrounding demonstrators in order to confine them to a given area and control access to this area and its exits.

Despite these reforms, however, significant concerns remain. So-called “less lethal” or “non-lethal” weapons continue to be used in France in the context of demonstrations. In particular, the use of rubber bullet (40 mm) launchers has been validated by the Conseil d’État (CE, 11 February 2019, no. 427390), on the grounds that their use is strictly regulated, based on the principles of necessity and proportionality, and reinforced by detailed instructions and training. While acknowledging serious injuries, the Council found no evidence of systemic illegality or of an intention to violate fundamental rights. Yet, the Défenseur des droits has since continued to call for a ban on their use in protest policing, citing repeated injuries, lack of precision, and disproportionate risks. Amnesty International likewise highlights the frequent misuse of such weapons, and calls for international regulation, stressing that they remain capable of causing serious harm or death – like in the case of Laurent Theron, who lost an eye after being struck by a police sting-ball grenade during a 2016 protest in Paris. His case, supported by the Ligue des droits de l’homme, is currently pending before the ECtHR under Article 3 of the Convention (prohibition of inhuman or degrading treatment). Another example of lethal force used by police during a protest is that of Zineb Redouane, an 80-year-old woman who died after being hit in the face by a tear gas canister fired by police as she was closing her window during a demonstration in Marseille in 2018.

Conclusion

Ultimately, the Fraisse case highlights the dangers of a systemic approach to protest that frames demonstrators not as political participants or members of society exercising a fundamental right, but as threats to be neutralised. This perception is reflected in legal frameworks that authorizes the use of military-grade weapons for crowd control, operational strategies based on confrontation rather than de-escalation, political discourses that label environmental activists as ‘eco-terrorists’, and growing surveillance practices, including intelligence files and data collection targeting movements such as the anti-nuclear opposition in France. It is even visible in the symbolic language of appearances: The French riot police (CRS), with their full body armour, shields, helmets and visors, look more like paramilitary forces or cinematic stormtroopers than public servants. While the presence of violent actors such as ‘black blocs’ at some protests poses real challenges, it cannot justify the use of force that puts innocent lives at risk. Rémi Fraisse’s death was not an accident in the usual sense – it was the predictable outcome of a system that fails to distinguish adequately between public order and civil war. It shows that a state’s failure to protect the right to life when policing protests is not just a matter of individual misconduct, but the product of a deeper institutional logic that treats dissent as danger and activists as enemies.