The method is well known to "yellow vests". The police prefecture has multiplied, in recent days, orders prohibiting undeclared demonstrations in several sectors of the capital. From Tuesday March 21 to Tuesday March 28, prefectural orders were issued every day to prohibit demonstrators from meeting spontaneously in the late afternoon and evening in a large part of the city – Place de la Concorde, the avenue des Champs-Elysées, the Trocadéro, the Place de la République, the Place de la Bastille and the Place d'Italie. Offenders risk a fixed fine of 135 euros for participating in a prohibited event.
The prefect of police of Paris, Laurent Nunez, justifies these decisions in view of the violence and the arrests that have taken place since the announcement, on March 16, of the use of article 49.3 by the government to have Parliament adopt its reform. retirements. Invoking "gatherings presenting risks of serious disturbances to public order", he assures that the "perimeter in which restrictions are implemented" aims to "guarantee the safety of people and property, that of sensitive sites and institutions and symbolic".
By signing these decrees, the prefect seems to support the Minister of the Interior, Gérald Darmanin, who had wrongly asserted that "being in an undeclared demonstration is a crime, [which] deserves an arrest". Indeed, if the gathering has not been banned, "no other legal or regulatory provision criminalizes the sole fact of participating in an undeclared demonstration", recalled the Court of Cassation in June 2022. The orders issued by the prefect of police thus make it possible to circumvent this rule of law.
Information that is difficult to access
It is on this basis that several people were fined in the Place de la République on Friday evening or near the Pompidou Center on Saturday evening, as reported by several journalists present on the spot. Problem: While no one is supposed to be ignorant of the law, information about the protest ban was not readily available, if at all.
Friday evening, it was necessary to go to the site of the Prefecture of Paris to find a trace of the decree prohibiting certain sectors, including the Place de la République. The document was uploaded more than half an hour after the ban began at 5:30 p.m., document creation data shows. A few days later, Tuesday, March 28, it was necessary to seek the site of the Paris police headquarters, separate from the previous one, to find out about a new ban.
As for the decree prohibiting undeclared gatherings for Saturday evening, it has not even been posted online. The document was simply posted in front of the Paris police headquarters, as seen by lawyer David van der Vlist, a member of the Syndicat des avocats de France (SAF, ranked left). To find out about the ban, the demonstrators should therefore have gone beforehand to rue de Lutèce, in the 4th arrondissement.
Several organizations, lawyers and elected officials were moved by the difficulty for citizens to have access to this information, in the midst of a movement to challenge the pension reform. "Imagine the absurdity of the situation: young people are punished by being told 'you have no right to gather in such and such a place' without their being able to know beforehand that they had no the right to do so ", for example lamented, on Sunday, the deputy Nupes of Essonne Antoine Léaument.
Order "on the sly" to discourage protests
While the decrees in question specify that their entry into force is "as soon as it is posted at the gates of the police headquarters", lawyer Vincent Brengarth is also surprised by the absurdity of the situation: "Who will go in front of the prefecture to see the public posting of the decree? Even being an informed citizen, you don't do that…”
“How many websites and billboards are protesters supposed to monitor to know when they are allowed out? asks the SAF, who criticizes the prefect for publishing these decrees "on the sly" with the aim of keeping demonstrators at home for fear of being fined.
Why are orders issued at the last moment? Why aren't they all posted in the same place? Why not have communicated on social networks, which could have allowed as many people as possible to have access to the sectors concerned by the ban on spontaneous assembly? Contacted by Le Monde, the Prefecture of Police did not respond to these points, although it had already used Twitter in similar situations in the past. The Prefecture of Police confines itself to saying that it complies with Article L. 221-2 of the Code of Relations between the Public and the Administration, which provides that "the entry into force of a regulatory act is subject to the fulfillment of mandatory publicity formalities, in particular by means of publication or display, unless otherwise provided”.
A barrier to legal action
Vincent Brengarth believes that this lack of clear and systematic communication is intended "to cause difficulty of access for the litigant who would like to challenge the interim release order before the administrative court". This emergency procedure makes it possible to challenge an administrative decision that would seriously and manifestly illegally infringe a fundamental freedom. The judge then has forty-eight hours to decide.
For the SAF, the Paris Police Prefecture "organizes a state of lawlessness". “If no one sees the text, no appeal and if the judge seized late does not have time to rule, no suspension, notes the union. However, the judge must in theory control the necessity and the proportionality of these decrees, clearly debatable. »
On Monday March 27, at 6:41 p.m., the SAF, the Syndicat de la magistrature (SM), the Ligue des droits de l'homme (LDH) and the trade union Solidaires jointly filed an interim order with the administrative court of Paris targeting the decree taken for the night of Monday to Tuesday, not displayed in the prefecture and published online in the collection of administrative acts at 5:30 p.m., thirty minutes after the start of the ban. Tuesday at the end of the day, the administrative court rejected their request, judging to have been seized too late to convene a hearing. The court also finds that at the time it issues its order, the decree is no longer valid and that "there is no need to rule on it".
"The strategy of the Prefecture of Police will have produced its effects", immediately reacted the SAF, once again asking the authorities to publish the orders "within a time allowing effective judicial control".
David van der Vlist assures that his union is ready to seize the administrative court again for the next orders, so that the necessity and the proportionality of these orders can be really questioned. "We never saw that, even during the movement of the 'yellow vests' the decrees were published the day before, it was not done in secret, and the perimeters of prohibition were not so wide, "recalls -he. With the LDH, the SAF announced that it would help all demonstrators who had been fined to contest their fines before the police court. “There will then be a real debate on the time of publication and on the methods of publicity of these decrees which are not adequate”, estimates the lawyer.
As of 6:30 p.m. Wednesday, before the publication of this article, no new decree banning undeclared demonstrations had yet been posted online.