Kettling, accreditation of journalists... France’s Conseil d’Etat cancels several points of the law-and-order scheme

Décision de justice
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Further to applications filed by several associations and trade unions, the Conseil d’Etat has declared several points of the law-and-order scheme of 16 September 2020 to be unlawful. Given the absence of sufficiently precise conditions, the possibility of resorting to the kettling of demonstrators has been annulled. The Conseil d’Etat has also annulled certain rules relating to journalists: the obligation to move away when the order is given to disperse and to hold accreditation in order to access information in real time and the conditions applicable to the wearing of protective equipment.

On 16 September 2020, France’s Minister of the Interior published the national scheme for the maintenance of law and order. This document defines the framework for the maintenance of law and order applicable to all demonstrations taking place on national territory and to all law enforcement personnel. Several associations and trade unions (including the CGT, the Ligue des droits de l'Homme, the Syndicat de la magistrature and the Syndicat National des Journalistes) applied to the Council of State with requests for the annulment of several parts of this document. 

The Conseil d'État today annulled 4 points of the national scheme concerning the kettling of demonstrators and certain rules applicable to journalists.

Given the absence of specific conditions, kettling demonstrators is declared to be illegal 

The kettling of a group of demonstrators is one of the measures set out in the national scheme for controlling, apprehending, or taking action to prevent further public order disturbances. While this technique may be necessary in certain specific circumstances, it is likely to significantly affect the freedom to demonstrate and the freedom of unrestricted movement. However, the text fails to specify the cases in which its use would be recommended. The Conseil d’Etat annuls this point because there is no guarantee that its use is appropriate, necessary, and proportionate given the circumstances.

Journalists do not have to leave the area when a crowd is ordered to disperse

Another point annulled by the Conseil d’Etat is the obligation for journalists to comply with orders to disperse issued by the police or gendarmerie by positioning themselves away from the demonstrators asked to disperse. 
According to the French Penal Code, it is an offence to continue voluntarily to form part of a crowd after an order to disperse has been issued. However, journalists must be able to continue to obtain information without restriction, even when a crowd is being dispersed. They cannot therefore be required to leave the area, provided that they position themselves in such a way that they cannot be confused with demonstrators or obstruct the action of the forces of law and order. This is also the case regarding independent observers.

The Minister of the Interior cannot impose conditions regarding the wearing of protective clothing by journalists

The document also states that journalists may wear protective equipment if their “identification is confirmed” and their behaviour is “free from any offence or provocation”. 
The Conseil d'Etat considers that this paragraph goes beyond the French Penal Code and imposes conditions in ambiguous and imprecise terms on the wearing of protective equipment by journalists during demonstrations. It is not for France’s Minister of the Interior, in a circular aimed at providing a framework for the work of the police in maintaining law and order, to lay down rules of this kind addressed to journalists or to any person taking part in or attending a demonstration. 

The information channel dedicated to journalists cannot be reserved for “accredited” journalists only

Finally, the Conseil d’Etat annulled the obligation for journalists to be accredited by the authorities in order to access the dedicated information-sharing channel that can be set up by the police during demonstrations.

It notes that this system enables certain journalists to obtain more precise or complete information in real time regarding the conduct of a demonstration without undermining the principles of freedom of expression, communication and equality between journalists. Furthermore, in view of the operational constraints on the police during demonstrations and in the absence of other justifications as defined by law, it is also possible to limit access to this information system to journalists in possession of a press card only.

However, the Conseil d’Etat notes that when the national plan reserves this dedicated system for journalists “accredited by the authorities”, it does not specify the scope, conditions or procedures for obtaining such accreditation. This vague wording, which is likely to lead to discretionary choices, has a disproportionate impact on press freedom. 

Download French Ordinance No. 444849