CAIN: Democratic Dialogue: Politics in Public - Freedom of Assembly and the right to Protest (Report No. 8)

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Politics in Public

Freedom of Assembly and the Right to Protest


Demonstrations are very much a feature of French political life. They Would fit comfortably between the beret and the snail on the list of French stereotypes, and many foreigners who have lived in or travelled through the country would have borne away images of political demonstrations, strikes, pickets and road blocks that they have encountered.

There is an average of eight demonstrations a day in Paris according to the préfecture de police, the department of the police who are responsible for all public gatherings. These mainly consist of small-scale protests although larger rallies and protests do bring the country to a standstill on a regular basis. Major political issues can mobilise a million or more people on to the streets of the capital and the main cities. The student protests of May 1968 remain the key examples of large-scale protest and those events have had a longstanding impact on both the politics and the social development of contemporary France.

Demonstrations in France differ significantly from the type of parades held in Northern Ireland mainly because they are almost exclusively issue related. State commemorations, such as Bastille Day (14 July) or Armistice Day (11 November), are probably the only real traditional parades, while longstanding anniversaries such as May Day, organised by the trade unions invariably have a contemporary political message. The vast majority of demonstrations would be a form of political protest and it could be argued that in France the right to demonstrate is understood as a right to express an opinion rather than to celebrate a cultural or religious tradition.

Although rising unemployment and a decline in the power and importance of the trade unions have led to a reduction in large demonstrations in recent years they can still play a very important social and political role as has been evident during recent strikes by farmers and lorry drivers. Large assemblies and protests have often persuaded the government to reconsider their position or their policies and they are still an element of most negotiating processes. The size and number of marches constitutes a reliable social indicator. A million people on the street give negotiators a very powerful mandate when dealing with the government. On the other hand calling for a demonstration on a serious issue can only be done provided enough people will be mobilised. A failed demonstration, explained a trade unionist, would give a green light for a government to go ahead with whatever contentious project it wants to force through.

The tight to demonstrate is strongly established and well protected in France and poses few problems. Even if France is not the human rights haven it claims to be, people are still proud of this image and hold a belief in the importance of human rights very dear. People would be very protective in terms of their rights and freedoms, and would be likely to protest against the banning of a demonstration that they would not have been part of in the first place. However, taking a closer look at the situation in terms of the legislation and the experiences of diverse groups reveals many practices that muddy the picture. For example, disputes over rallies organised by the neo-fascist Front National have been confronted by public opposition and counter demonstrations and have opened an interesting debate in terms of civil liberties.

Legal Framework

The right to demonstrate is not entrenched in the Constitution and is not even positively defined by the law but rather is only implicitly protected by the Nouveau Code Pénal. Article 431-1 of the Code allows for punishment for concerted obstruction to 'freedom of expression, work, association, meeting or demonstration' (Morange 1997). This therefore also gives legal status to freedom of assembly and the right to demonstrate.

The current legislation relating to the right to demonstrate is based on a décret loi introduced in 1935 following violent clashes between fascist and communist groups. The décrét loi 23-10-1935 requires the organisers of a demonstration to notify the authorities of their plans at least three days before the event is due to take place. In Paris the central office of the préfecture de police co-ordinate all activities related to parades, demonstrations and other public assemblies. The préfet himself is directly responsible to the Ministre de l'Interieur, while four commissaires are responsible for the administration of gatherings. In smaller towns this work would be carried out through the office of the mayor.

Notification of any proposed assembly must include the date, time, place, intended route and purpose of the demonstration as well as the name and address of three organisers. Although assemblies do not need authorisation, notification is nonetheless compulsory and a parade that has nor been notified to the police authority is therefore an illegal event. Parades whose aim is considered to threaten the institutions of the Republic or infringe upon the law are also considered illegal.

Imposing Conditions

Demonstrations can be banned by the préfet if it is felt that public order or other fundamental liberties such as freedom of movement, to work or to enjoy private property are at risk. The préfet must presume that there is both a real threat to public order and that there is no other available means to avoid that trouble (Pontier 1997). Few parades are in effect banned and many parades do rake place without advanced notification. The limited number of interdictions is mainly due to the fact that the préfet can impose a range of partial changes or specific restrictions. Amongst other things he/she can ask for a modification of the route, the time, and the date. In France the right to demonstrate does not amount to a right to march anywhere at any given time.

Whilst there have been difficulties in Northern Ireland over the issue of traditional’ routes, this has never been the case in France as traditional routes simply do nor exist. Although there are particular areas of Paris in which parades and demonstrations are regularly held there is no special symbolic status linking certain organisations to any one route nor any specific right to demonstrate in any one place.

Prohibitions are usually challenged before a juge administratif. During times of public unrest or when public order has been at risk the police authorities have not hesitated to ban parades. The juges administratifs have generally upheld such decisions, although on occasions police decisions to ban a demonstration have been declared illegal (cf: CE, sect. 19.02.54 Union des synd. ouvriers de la règion parisienne CGT et sieur Hènaff; 21.06.72: Sieurs Malisson [Long, Weil & Braiban 1984]). However, the impact of these decisions is only one of ‘principle’ since they were made several years after the contentious parade was due to rake place. In practice the decision of the Prèfet is effectively final.

The Code Pénal lists a number of illegal activities that can occur around demonstrations and that can lead to prosecution. It establishes first of all a distinction between legal or authorised demonstrations and unlawful assemblies or attroupements (article 431-3 of the Code Pénal). An atrroupement is an assembly that is held without prior notification and which also threatens public order. A spontaneous parade resulting from a peaceful gathering does not therefore necessarily constitute an attroupement. Demonstrations and peaceful assemblies can disintegrate into unlawful assemblies at any time and can then be dispersed by force after two warnings have been given. However as is the case in other jurisdictions, the criteria for judging the nature of public order and the seriousness of threats to it are extremely vague. Therefore the legislation basically authorises the police to disperse any spontaneous demonstration if they deem it to be necessary.

Organising a demonstration without prior notification, or organising a demonstration that has been banned, carry penalties of tip to six months imprisonment and a 50,000 FE fine (c£5,000). Anyone participating in either legal or illegal demonstrations carrying a weapon (including spades, projectiles etc.) can be imprisoned for three years, while inciting an armed assembly is liable to seven years imprisonment. Non-nationals moreover face a possible exclusion order for any of the above offences.

The local authorities have customarily been held financially responsible for any damages caused during demonstrations or riots, although public authorities can sue individuals whose responsibility can be proved. Following the extensive rioting in 1968, the government introduced ‘anti-riot’ legislation (loi anticosseurs), which placed responsibility for any damages with the organisers of the demonstration. However this law was repealed in 1981.


French law distinguishes between demonstrations that are authorised and legal and those that have been banned. In practice however, most parades follow a third scenario where the right to demonstrate exists only with substantial restrictions which are imposed or agreed following negotiations with the prèfet. After receiving initial notification of the intention to hold a demonstration, the prèfet invites the organisers to discuss the details of the event. If demonstrators want to match along busy streets at a busy time then the police can insist on a change of the timing or of the entire route. The prèfet must always rake into account the potential disruption to the economic life of different areas and will try to spread the various demonstrations throughout the day, the week, and the main arteries of Paris.

When a compromise is agreed, the prèfet and the organisers jointly sign a form that lists both the conditions that have been established and a summary of the current legislation governing parades. Although this document has no legal basis, it is described as a contract between the two parties: the organisers promise to follow the agreed terms while the police now have a responsibility to provide security along the route of the parade.

The quality of the contact between organisers and the prèfecture varies considerably and depends on how ‘professional’ the group organising the demonstration is. Major trade unions and radical groups like Act Up, who have established themselves as perpetual demonstrators, have regular contacts with civil servants in the prèfecture and talk of a good working relationship. The prèfecture explained how organisers have sometimes informed them of what was likely to happen during a demonstration: how far the demonstrators would expect to go and to what extent they would accept restrictions without feeling compromised. An unspoken agreement can come out of such meetings ensuring the credibility of the organisers and effective control by the police over the events. The majority of demonstrators are unaware of the negotiations which have taken place behind closed doors and what will often look like an infringement on the agreed contract might very well be the result of on informal agreement. Smaller, less 'demonstration orientated’ groups who would not attract the same number of people in the street do not have the same ability to get their way since removing a small number of demonstrators from a busy street can be easier for the police than disrupting the traffic.

The police responsibility for the security of a legal parade is demonstrated by the presence of a police vehicle at the head of the procession. If that demonstration is likely to meet little opposition, the police presence will be minimal and restricted to traffic control along the route. The police make a point of minimising their presence as much as possible and expect the organisers to take substantial responsibility for a peaceful event. The organisers of a demonstration usually walk in front of the ordinary marchers and are therefore positioned between the demonstrators and the police. This allows for easy communication in the event of trouble or problems arising and also allows the organisers to distance themselves from being held responsible in case rioting breaks out. Once the demonstration is over, the organisers must call for its dispersion, the police are then responsible for the situation.

Demonstrations organised by well-established groups generally provide their own stewards. Even though it is not a legal requirement, the police expect some internal security to be arranged by the group itself and there is often a tacit agreement between the two parties in terms of delegating security powers to the stewards. Such a delegation of authority is formally prohibited and could certainly be legally challenged, although it would most likely be argued that the stewards have only natural authority over other demonstrators. However recently problems have occurred with the Front National whose stewards are dressed in police-style uniforms, often try to check people’s identification and have violently confronted counter-demonstrators. These issues have arisen in part because the FN have argued that as the police have nor been willing to protect their rights they will have to do it themselves. At present it is nor a serious problem, but it does raise issues about the appropriate limits to informal stewarding of demonstrations.

Policing Demonstrations

The policing of demonstrations has been a recurring issue throughout French history. The army was traditionally in charge of restoring order, but as a result of problems relating to both fraternisarion and inadequate training. Conscription meant that local soldiers frequently knew the demonstrators, conversely at other times the reaction of the army was often too violent and they opened fire on unarmed civilians on several occasions. It was therefore decided to create a ‘normal’ police force that would be specially trained to deal with crowd control. This led to the creation of the Compagnies Rèpublicaines de Sécurité (CRS) in 1945. It was thought that such a force would be more likely to try to avoid bloodshed and would more adequately balance the needs of maintaining public order and avoiding risk to life.

The way in which a demonstration is policed depends largely on the threat it is perceived to present to public order. Most parades or assemblies only require the assistance of ordinary police personnel whose role will be limited to control of the traffic. The CRS are attached to the police department under the authority of the Home Secretary. They will generally be mobilised in the vicinity of demonstrations but out of sight of the demonstrators. The CRS will be called upon if a demonstration is likely to meet some opposition, tries to take a forbidden route, at if public order needs to be restored. Their officers receive special public order and crowd control training. If the police experience extra difficulty, it is possible to call on the gendarmes mobiles, although this would mainly occur in times of generalised strikes and widespread demonstrations. Even though they are military personnel, the gendarmes mobiles have a similar training to the CRS and wear comparable uniforms. When working with the police, military personnel are always expected to follow police orders.

The Renseignements Généraux (RG) who are responsible for police intelligence play a major role in the organising of the policing of demonstrations. They give the police authority information on the conditions surrounding the planned demonstration, thus allowing the prèfet to evaluate the necessary police presence and other security measures and to address the need for potential prohibitions or restrictions that should be imposed on the demonstration. The RU’s work also includes general surveillance of political groups. They infiltrate organisations of all kinds in order to keep spontaneous demonstrations and ‘direct actions’ under police control.

A number of recent incidents have contributed to a rethinking of policing methods at public assemblies. One general principle is that demonstrators should never be ‘trapped’ or left without means of escape. The need for escape routes was made explicit when nine people were crushed to death against the railings of the Charonne metro station in 1960 following demonstrations related to the Algerian war. More recently the death in 1986 of a young Algerian as a result of a bearing by a special police squad lead to debate on how much violence could be legally rinsed in a riot situation. The two policemen involved in the killing were members of a special police unit created to respond to the presence of outside elements joining a demonstration for the sole purpose of stealing and rioting. The special squad followed people using motorbikes and arrested them away from the main body of the parade and away from the media. The policemen only received suspended sentences but the special force was subsequently dismantled.

Apart from batons, the police have access to tear gas and water cannon to control disorder at demonstrations. Use of rubber bullets was considered at one stage, but rejected because they were believed to be as dangerous as live ammunition when fired at close range. Heavier weapons or military equipment are sometimes used for technical reasons but have not been called on for other purposes since the anti-nuclear protests of the l970s and l980s.

While the police have a responsibility to facilitate legal demonstrations, they can also operate in such a way as to infringe the right to demonstrate. One such method is through failing to provide sufficient or effective policing. Act Up noted that on one of the first demonstrations that they organised, the police did nothing to divert traffic as they reached one of the major road junctions in Paris. The group challenged the police who were eventually forced to act on the matter and stop the traffic to allow the demonstration to pass. A smaller demonstration or a less determined group would probably have been unable to go any further and be prevented from completing their legal demonstration. Although the attitude of policemen could also sometimes be overtly hostile, in general aggressive attitudes were most likely to occur when events have nor been planned properly and when the police were heavily outnumbered by demonstrators. A police force put in a vulnerable position is always more likely to resort to aggressive tactics and excessive use of force.

However, few groups complained about the behaviour of the police under normal circumstances and in the case of legal demonstrations most organisers felt that they had a good relationship with the police on the ground. The relationships that built up over time could work to the benefit of the authorities at times of tension. The presence of the Renseignements Généraux police is a regular feature of demonstrations; most officers were readily identifiable and known to demonstrators. These contacts often left them as natural intermediaries between the uniformed police and the demonstrators. At times of major strikes the role of the police authorities has gone beyond the usual policing duties as their relationship with diverse organisations has allowed them to open channels for discussion between government and the demonstrators. According to the préfecture this tactic has proved very successful and has greatly contributed to the peaceful resolution of conflicts in recent years.

Restricting Parades

The fact that the right to demonstrate is rarely restricted by a complete ban does not mean that the freedom is absolutely protected. On the contrary, the authorities can use many approaches to actually hinder the right to demonstrate. Most restrictions are justified by practicalities such as the number of demonstrations already raking place on a certain date, the need for a police presence in many different operations, etc. Concern for traffic can also limit, within moderation, the right to march through busy or strategically important streets.

According to the préfecture the banning of parades has not become an issue in France because alternatives are always offered. Even when a compromise on the time or the route might not seem available, groups can usually find a way around the restrictions. When the police trade union was prohibited from organising a demonstration in their own name another union organised an event in which only policemen rook part. In a similar example, an anti-racist group organised demonstrations in solidarity with Kurdish people who had been refused the right to organise such events themselves.

If banning a demonstration is likely to attract more publicity than a small parade would have, it is sometimes more judicious to try to undermine the demonstration itself. One effective way of diluting the message expressed by the demonstrators is to ensure that another element will be prioritised in the news coverage. This has consistently been the case each time rioting has broken out at the end of a demonstration. A representative of one union explained that they had stopped organising rallies that were to end in the late afternoon as rioting regularly started after the main body of the marchers had dispersed just in time for the live eight o’clock news. The message of the demonstration would then be obscured by the violence of the rioters. In recent years a number of demonstrations have had to confront the problem of riotous elements infiltrating the march. This has been particularly detrimental for student demonstrations and several groups have accused the police of infiltrating demonstrations to stir up the rioting. Such methods have been rinsed successfully in many countries, and this suggests that such accusations are more than simply a sign of paranoia, but rather describe a political technique that can be used more efficiently than prohibition to diminish the right to demonstrate.

Although banning a parade is a relatively rare occurrence, when it happens it does provoke debate. One problem is that the apparent lack of objective criteria to justify why, and when, a parade can be banned gives the impression that prohibitions are imposed for political reasons. Public order is a very vague notion and has different definitions depending on the political climate of the time. It is not a legal but a political concept. The jurisprudence clearly reveals that demonstrations by right-wing groups are more likely to be banned by left-wing authorities and vice-versa, this casts some doubt on the ‘public order justification (Turpin 1993). Most organisations felt that demonstrations were only banned if there was sufficient political will to do so and that some kind of compromise could always otherwise be found. Preventing a demonstration therefore seems to depend on the balance between political will and the number of people potentially mobilised by the demonstration. A million people on the street have an unconditional right to demonstrate since the policing costs to prevent them from gathering would be so high that the authorities would be unlikely to press for a ban.

Only one situation appears to lead to a systematic ban on demonstrations. Even though it is not mentioned in the legislation covering parades, being able to organise a demonstration to criticise the actions of a foreign regime depends entirely on the tacit approval of the government. Freedom of expression and freedom of assembly are readily suppressed when it comes to the visit of foreign dignitaries. It was widely accepted that demonstrating against a foreign president would not be possible on the day of his/her visit. As the préfecture explained, you would not want your neighbours to picket your house when they do not agree with your choice of guests. The issue is nonetheless a serious one. For example, demonstrations criticising the Turkish regime have been systematically banned. The authorities usually blame the potential terrorist connections of Kurdish refugees but others suspect that such restrictions had more to do with the importance of the arms trade than with any threat to public order caused by a group of less than fifty people. As a result groups often organise direct actions and do not give notification of their intentions in order not to face a prohibition.

The question of the rights of foreigners to demonstrate is also worrying in terms of civil liberties and goes beyond the issue of diplomatic relations. Foreign visitors do not have a tight to demonstrate, and their presence in demonstrations is only tolerated. In practical terms, it means that French associations will often organise a demonstration in the name foreign groups. Furthermore, if non-nationals are arrested during an unauthorised demonstration or after the dispersion order has been given, they can be automatically expelled from the country. This has happened on several occasions and can only be avoided if a sufficient number of people react to Stop the process and prevent the deportation. As a whole, the violence used to repress demonstrations organised by foreign groups, and the complete discretion left to the authorities when dealing with these situations, does not improve the broader culture of rights in the country.

In recent years a new phenomenon has emerged in France with the rise of the Front National. Most of the contentious demonstrations are now linked to the issue of racism. The democratic solution of allowing both FN events and the counter-demonstration still prevails and according to the préfecture FN parades are very rarely banned, contrary to what the party would like people to believe. Front National officials however regularly accuse the government of discriminating against them and insist that their right to demonstrate has been violated on a regular basis. The banning of a Front National demonstration is nonetheless a difficult issue. Left wing groups regularly oppose the right of extreme right groupings to demonstrate. Some organisations boasted of having prevented fascist assemblies from taking place by threatening to cause so much disruption with their counter-demonstration that the authorities had to ban both events. This raises the question of whether it is acceptable for one section of society to be allowed to decide what opinions deserve the right to be expressed. Seeing politically motivated restrictions on the right to demonstrate in a positive light can be short-sighted, since it creates a precedent that could always be used in a different way in a different political climate. If democratic ideals are fully respected, counter-demonstrators should be allowed to express their disagreement with the ideas defended by the members of the main demonstration, but that does not mean that they have a right to prevent them from expressing those ideas in the first place.


Demonstrating and protesting are important facets of French social and political life. The right to demonstrate is built into the broader legal framework and the boundaries have been established through practice. But such practice has also made it clear that there is no absolute right to demonstrate, rather demonstrators are expected to enter into a process of discussion and negotiation with the police authorities in order to establish appropriate terms and conditions for each public event.

When an agreement has been reached, it is set our in a form of contract, under which each party has different responsibilities. The organisers have a responsibility to ensure that their public event follows the terms and conditions while the police have a responsibility to ensure that the demonstrators are able to exercise their right to hold a peaceful demonstration. Protesters have no rights to prevent a legal demonstration from taking place.

This process of negotiation appears to work well with most groups and organisations; however, it is also clear that the ability to exercise the right to demonstrate can be affected by political considerations. Groups from both wings of the political spectrum have tried on occasions to prevent their opponents from holding demonstrations and meetings that they are opposed to. In such instances the police tend to play the numbers game, by facilitating both demonstration and counter demonstration where possible, but stopping both where necessary.

Furthermore, although France prides itself on its support for human rights, the government rakes a pragmatic view in its readiness to prohibit demonstrations against visiting foreign dignitaries. In such cases the right to demonstrate is less important than the demands of foreign relations. However acknowledgement of such restrictions must be balanced by the seemingly relaxed way that the government responds to major protests by such groups as farmers and lorry drivers. Although they often cause immense disruption to everyday life, French citizens seem to regard such events as something to be tolerated rather than condemned. There is clearly therefore both a hierarchy of rights and at the same time an acknowledgement that no rights are absolute.

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