During confinement, it is not allowed to leave your home without a certificate, to meet friends or to run more than a kilometer from your home.
Can we, on the other hand, go legally to a demonstration?
For the past week, protests against the global security law have gathered thousands of people in several cities, leading to around thirty arrests in Paris for "
unarmed gathering after summons to disperse"
.
Last weekend, demonstrations by Catholics in favor of the resumption of masses were interrupted by the police, not for “illegal gathering”, but for “breach of the principles of secularism”, for having sung prayers in the street.
For good reason: the law does not prohibit, despite the state of health emergency, to demonstrate.
Read also: Believers mobilize for Mass despite threats of sanctions
According to the decree of October 29, 2020 prescribing the general measures necessary to deal with the epidemic of covid-19 in the context of the state of health emergency, are prohibited
"gatherings, meetings or activities on public roads or in a place open to the public bringing together more than six people simultaneously is prohibited. "
The decree provides for a certain number of exceptions, including in particular funeral ceremonies or passenger transport services, which do not however include demonstrations.
“But by reading Title II, which enjoins the organizers of demonstrations to send a declaration to the prefect of the region where the event is to take place, it is finally understood that gatherings of 6 people whose object would be demonstrations demands, union or political, are authorized subject to a prior declaration in the prefecture, ”
analyzes Jason Graindepice, lecturer in public law at Sciences Po.
Events subject to compliance with barrier gestures
Nothing therefore prohibits demonstrations, provided that they are declared to the authorities and respect, according to the decree, the barrier measures such as the wearing of a mask and the distance of at least one meter between each person.
For example, the Loire-Atlantique prefecture has authorized a gathering "for mass" on November 15 in Nantes, on condition that it does not bring together more than 500 people and takes place on Place Graslin, a place deemed more conducive to respect for barrier gestures only in front of the cathedral.
“Where there is a vagueness, however, is that there is no '' demonstrations '' box on the certificate.
Demonstration is allowed, and you cannot have a demonstration without demonstrators.
Consequently, a protester who leaves without a certificate could not be fined ”
, nuance Jason Graindepice.
Faced with this legal vacuum, several associations, including the League of Human Rights, have posted online "
certificates calling for the demonstration"
, recalling the legality of the trip.
The intervention of the Council of State in favor of demonstrations
A change from the spring, when demonstrations were, in view of the state of health emergency, purely and simply prohibited.
Last June, the Council of State revoked the ban on demonstrations imposed in the context of the state of health emergency.
"
The freedom to demonstrate is a fundamental freedom"
, then recalled the Council of State, considering that this ban was not
"not justified by the current health situation"
.
Only the risks of non-compliance with “barrier gestures” and of meetings of “more than 5,000 people” can justify it, argues the Council of State, which relied on the recommendations of the High Council for Public Health of April 24.
The Council however recalled that these demonstrations could be prohibited by the authorities
“if they consider that it is likely to disturb the public order, including for health reasons.
"
"The right to demonstrate is preserved and it is impossible to restrict it in a general and absolute manner"
, writes Raphaël Matta-Duvignau, Senior Lecturer in Public Law, University of Versailles-Saint-Quentin-en-Yvelines (Paris-Saclay), for the Think tank "Le club des juristes".
But by subjecting the holding of the event to compliance with barrier gestures and to the tonnage of 5,000 people, the decision leaves, according to the lawyer, "
a very large margin of maneuver for the competent authorities.
A sort of "at the same time" whose practical and concrete applications will not be without raising difficulties.
To be able to restrict, without prohibiting for all that. "