When his deconfinement plan was announced on April 28, Prime Minister Édouard Philippe had assured that "rallies organized on the public highway or in private places will be limited to ten people" . The decree of May 11 last only partially validated the words of the head of government. From now on, only gatherings on the track and in public places are limited to ten people. The mention of the private sphere was quickly removed from the bill, the government fearing a rise in the niche of the Constitutional Council. The latter, speaking on the bill dated May 9, recalled that "the measures relating to establishments open to the public and to meeting places […] do not extend to premises used for residential purposes ”.
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Concretely therefore, there is currently no ban on assembling in a private place. "In absolute terms, people can invite other people to their homes, whatever the number," confirms the entourage of Interior Minister Christophe Castaner, contacted by Le Figaro . This is the reason why the Secretary of State Laurent Nuñez appealed on Thursday to the "civism" of the French. “It is up to everyone to take responsibility, to know if they want to be part of the virus's transmission chain . In any case, we want to break it at all costs, ” he added on LCI. In Beauvau, it is said to appeal to the “intelligence” of citizens.
Public or private meeting?
“For me there are two subjects in this decree , completes Fleur Jourdan, lawyer in public law at the firm AyacheSalama. First, gatherings in a public or private place. Private places then being the home or the offices of a company for example. Then, the notion of private or public meeting ”. As Article 12 of the European Charter of Human Rights states, "Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels" . In French law, freedom of assembly is defined by the law of June 30, 1881. “Public meetings are free. They can take place without prior authorization ” , one can read in article 1. However, if public meetings have been prohibited by the State because of the health crisis - except when they are necessary for the continuity of the life of the Nation -, private meetings remain authorized.
It remains to be seen how far a meeting is considered private. If no precise definition exists, specialists agree that a private meeting must respect several criteria: "It takes place in a closed room (whether public or private) and access must be reserved for persons named in advance whose identity must be verifiable. The private meeting is envisaged as an extension of the freedom of the home (especially if the meeting occurs in a private place) " , detail the authors Xavier Latour and Bertrand Pauvert in Public freedoms and fundamental rights (Broché, 2008). But, "in case of necessity, the judge sovereignly appreciates the private or, on the contrary, public nature of the meeting" , they add.
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" In a private meeting, it is not the place that is private ," says Bertrand Pauvert at Le Figaro . It is the issue of identifying the people who participate in the meeting that is important, you need a name list of people. If we distribute leaflets to invite everyone, in this case the meeting is qualified to be public ”. And the administrator of the French Association of Security and Defense Law (AFDSD) to give an example: "If an association of anglers has a pond which belongs to the association and which it invites by name its 120 members to discuss the future of fishing during containment, so it's a private meeting. On the condition, however, that it is not an establishment authorized to receive the public ”.
Another example: that of a private chapel within a property. Would it be possible to organize a mass there? Technically yes, according to specialists. "Churches are excluded, but it could be difficult to enforce the legislation for a private chapel," says Bertrand Pauvert . Unless you have made public calls to organize a mass. ” If the event remains with family, friends or acquaintances, then this mass can enter a private meeting, according to Nicolas Hervieu, lawyer teaching at Sciences Po and specialist in public liberties. “It's a real legal debate. One can very well carry out a religious office in a private capacity, with his family or his friends. On the other hand if it is open to more people, it risks being considered as a place welcoming to the public. The person hosting the event can therefore be fined for non-compliance with the decree, but also because he breaks the rules for welcoming the public under legal conditions ”. Knowing that the Council of State has just ordered the government, this Monday, to lift the "general and absolute" ban on meetings in places of worship.
Conversely bars and discos are public establishments - and currently closed as well - the question should therefore not arise. Except that their case is not so simple. “If the bars are public establishments, as they are currently closed, they are not used as such. If a bar owner closed to the public invites people he knows in a private setting, by invitation, then that would be difficult to verbalize, ” said Me Jourdan. According to the lawyer, the vagueness remains around private meetings because there are "flaws in the drafting of the decree" . "The government could not really formulate it otherwise because it is impossible to implement ," she adds, however. If it is not prohibited by the text, in this case it is authorized. The government called for great vigilance and everyone's responsibility. But in reality we can get together. ”
Verbalization for non-compliance with barrier gestures?
On the other hand, we recall to the Ministry of the Interior, everyone must respect article 1 of the decree of May 11. To slow the spread of Covid-19, the French are obliged to apply “barrier” measures (washing their hands regularly, sneezing in their elbow, blowing their nose in a disposable handkerchief, avoiding touching their face). They are also subject to a "physical distance of at least one meter between two people" . If a gathering takes place in the private sphere, the participants must in all cases apply these measures. Otherwise, they will be exposed to a 1st class ticket amounting to 38 euros. However, since private homes are protected and the police cannot enter inside without agreement, they may have to find out the facts from the outside. "This would be the case if you invite fifty people to your studio," says one in Beauvau.
"The question arises: can we envisage that agents can verbalize the non-compliance with barrier gestures at your home?" , questions the lawyer Nicolas Hervieu. One can imagine that the police, called for night noise or by neighbors, could see on the doorstep that the physical distance was not respected and, consequently, verbalize. A contravention which could, however, violate the "inviolability of the home" , according to the teacher. “This verbalization would be difficult to legalize under the law. But it must still be able to challenge it because a large number of police courts were closed during confinement. It is a delicate action, which opens the door to the risk of arbitrary decisions by certain police officers ”.
After these legal considerations, the Ministry of the Interior asserts that the priority is not to "flush out the French at home". “We trust them. Enforcing the 100-kilometer rule or focusing on resuming delinquency with deconfinement is much more important for us at the moment , ”we stress. And to recall: "If you have a large table, you can go so far as to invite eight, ten people, being careful. But if you have a birthday to celebrate, you'd better wait a few weeks. ”