2023-05-11 17:14:11
Nearly 600 members of neo-fascist groups marched through the streets of Paris on Saturday May 6, causing excitement and concern. While the government has been accused of complacency, Prime Minister Elisabeth Borne evoked images “shocking”but recalled the legality of this event, which takes place every year.
From a legal point of view, a fact has questioned many observers: the massive wearing of masks or balaclavas by the participants, in apparent violation of the various legislative provisions aimed at preventing demonstrators from hiding their faces.
What do the laws say?
Three provisions have been adopted in recent years.
- The “anti-balaclava decree” of 2009
After excesses on the sidelines of a NATO summit in Strasbourg in 2009, Interior Minister Michèle Alliot-Marie signed a so-called “anti-balaclava” decree. Since then, article R645-14 of the penal code foresees a fine of 1,500 euros for anyone concealing their face during a demonstration. To fall under this provision, several conditions must be met:
- be located in the event or in the immediate vicinity of it;
- deliberately concealing their face so as not to be identifiable;
- the circumstances must give rise to fears of breaches of public order;
The Penal Code recognizes exceptions, such as “local uses” (for example during a carnival) or legitimate reasons, such as imperative health.
- La loi “anti-burqa” de 2010
A year later, under the impetus of Interior Minister Brice Hortefeux, another law was enacted, which this time indirectly targeted, without citing them, religious signs in the street, and particularly Islamic women’s clothing (burqa, niqab).
The law noo 2010-1192 of October 11, 2010 provides what “No one may, in the public space, wear an outfit intended to hide their face. » However, it recognizes exceptions, such as “reasons of health or professional reasons, or if it is part of sports practices, festivals or artistic or traditional events”.
- The “anti-breakers law”
In April 2019, after the damage to property observed during certain demonstrations of “yellow vests”, a new law, more severe than that of 2009, was promulgated. Section 431-9-1, now punishes one year’s imprisonment and a fine of 15,000 euros for deliberately concealing all or part of the face “without legitimate reason”. as part of a demonstration “during or after which disturbances to public order are committed or are likely to be committed”.
“There is almost no difference between this law and that of 2009, remarks Audrey Darsonville, professor of criminal law at Lille-2. The only interest was to make it a crime, and therefore to allow people to be placed in police custody and released from the demonstrations. »
Demonstrations are now targeted. Nevertheless, a judgment of the Rennes Court of Appeal of September 2021 confirmed that the mere fact of concealing the face was not sufficient for the offense to be characterized, the use of a gas mask near a demonstration to protect oneself from tear gas constituting a legitimate reason.
What about the neofascist demonstration on May 6?
If the three texts are applicable in theory, in detail, none is specifically designed to respond to this situation. The three lawyers The world interviewees believe that the masked activists were in violation, without however interpreting the legislation in the same way.
- Divergent interpretations
For Jean-Paul Markus, professor of public law at the University of Paris-Saclay, the legislation is largely sufficient. “The fact of wearing a hood during a demonstration is liable to a fine, the fact of wearing a hood on the public highway is liable to a fine. These three articles are applicable. » In his eyes, the anti-burqa article is the easiest to invoke, especially since it is very clear: hiding your face on the public highway is illegal, with exceptions, which do not include political demonstrations.
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But, objects Alexis Baudelin, lawyer at the Paris bar, this law was precisely not designed to apply to political demonstrations and cannot apply to them. “They come under freedom of expression, which is very much regulated by European law. The only thing that can restrict it is the attack on public order. » Even more than the “anti-hood” law of 2009, in disuse, it is the “anti-breakers” law of 2019 which would be the most relevant, because it was designed for the case of demonstrations marked by a disturbance of public order.
However, nuance Audrey Darsonville, the 2019 law was designed to facilitate arrests the same day, and not after the fact. “We are in a preventive approach. The legislator thinks that hiding the face is already in anticipation of an offense. Interest [de l’article de loi] was to allow the police to recover possible troublemakers at the start of the demonstration to get them out. But when the demonstration is over, what would be the point of using this article? ».
- “Disorder of public order”, a changing concept
The threat of a breach of public order is therefore essential for the concealment of the face in demonstration to be illegal, but what exactly does this term cover? “There is no definition and there cannot be, it is a concept that offers flexibility to the police forcebelieves Jean-Paul Markus, who insists on its cultural and changing dimension. What was a problem thirty years ago is no longer a problem today, and vice versa. »
In spirit, today it mainly covers violence against people and damage to public property. However, the neofascist parade of May 6 does not fit into these categories. This was, moreover, the – criticized – assessment of the prefecture for do not ban the demonstration. Asked by BFM-TVParis police chief Laurent Nuñez linked the ultra-right to « violent subversion » and at “terrorism”, but judged that, so far, “this commemoration[avait] never caused any disturbance to public order”.
It may be objected that the Nazi salutes constitute a disturbance of public order. “In a demonstration, almost everything can be a threat to public order, recalls Audrey Darsonville. It can be degradation like remarks. However, incitement to racial hatred is an attack on public order.even if they are less material and spectacular than burnt cars or garbage cans.
There are court decisions to that effect. “Meetings can be banned for the risk of disturbing public order linked to the message that is conveyed, explains Alexis Baudelin. It is the Dieudonné case law, which has made it possible to ban shows. »
Tuesday, May 9, the Minister of the Interior, Gérald Darmanin, called on the prefects to ban the next demonstrations of the ultra-right, leaving the courts to judge the legal merits of these bans.
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