Demonstrations, justice, travel … Many freedoms (always) restricted by the state of health emergency

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Limitation of gatherings, wearing of compulsory masks, closing of borders… out of 25 measures derogating from freedoms, 16 are still in force.

This article was updated on June 11 at 7 p.m. The situation is evolving rapidly and some points may change.

“Freedom, finally, will become the rule again and prohibition will be the exception,” rejoiced, on May 28, Prime Minister Edouard Philippe, announcing the second phase of deconfinement.

However, many exceptions remain and the government is preparing a bill that will allow it to restrict certain freedoms beyond July 10, the date on which the state of health emergency must end. The only measure that the executive cannot take with this law would be a new strict confinement, that is to say with a ban on leaving the home.

It is likely that such a law will not be passed without debate – the latest discussions over the extension of the state of emergency have been heated. Certain restrictions on freedom are particularly controversial, such as the ban on the assembly of more than ten people, which constitutes a major obstacle to freedom of demonstration, while numerous rallies calling for light on the death of Adama Traoré are organized throughout France.

Is the ban on demonstrations still legitimate during the state of health emergency? The Council of State will decide

Laws, decrees, orders … of the twenty-five sets of national derogations that we have identified, sixteen are still in force, while only five have been completely lifted and four softened. We drew on the work of the liberal think-tank Générations Libres to measure where the freedoms are at the time of deconfinement.

Lots of measurements, few deadlines

“The restrictive measures adopted” temporarily “in the past to deal with crises have tended never to be entirely repealed,” worries Free Generations. Most of the derogations still in force do not have a certain end date. Those contained in the government bill would be valid until November, if the text were passed as is. Matignon recalled:

“If a general or localized aggravation of the situation were to justify more restrictive measures of liberty, the government should then resort again to the state of health emergency, which could be reinstated, on all or part of the territory, by a decree in the Council of Ministers. “

Among the measures still in force, only those on labor law have a known deadline which has not yet been called into question (they are valid until the end of the year). For assembly bans, the May 31 decree specifies that the ban on gatherings of more than 5,000 people is valid until August 31. But even this date is not set in stone since the law in preparation could limit demonstrations after July 11.

Prefects can also ban demonstrations under their police powers, which have been reinforced by the state of health emergency. This is what happened in Maine-et-Loire: the prefect took two orders prohibiting demonstrations against police violence scheduled for June 8 and 9 in Angers. The situation worries several observers, including the National Consultative Commission for Human Rights (CNCDH), given “the extent of these powers and their sharing between several authorities, including the prefects who may be empowered to take them”.

Some prefectures have effectively taken advantage of confinement to increase restrictions. In March and April alone, a group of students from Paris-Nanterre University recorded 1,200 prefectural orders, and they even gave up counting the municipal orders of 35,000 municipalities.

Overseas, exceptional territories

The authors of this study, published in The Human Rights Review, emphasize that in the overseas territories “the representatives of the State have multiplied the specific measures (…) very infantilizing towards the populations ” The goal, according to Minister Annick Girardin, was to “keep [de l’]ahead “of the epidemic, given the undersizing of overseas health facilities, but certain measures are particularly symbolic.

In Martinique, the mayor of Fort-de-France adopted a decree imposing on anyone wishing to disembark to submit to sanitary measures guaranteeing the non-introduction of the virus, by communicating the results of the tests without delay to the mayor.

Some travel restrictions have been much more stringent overseas: curfews, often from 8:00 p.m. to 5:00 a.m., in major cities have been introduced, as well as bans on the sale of alcohol or fermented drinks.

Fortnight was imposed not only on new arrivals, but sometimes on entire villages. This total ban on leaving the declared place of residence, apart from travel for health reasons and, where appropriate, family or work, had initially no legal basis, emphasize the authors. This measure, taken by decree, would have required the possibility of seizing the judicial judge in order to respect article 66 of the Constitution. For this reason, it was censured by the Constitutional Council.

However, as jurist Serge Slama reminds us, measures relating to quarantine and isolation remain available on the basis of article 3131-1 of the public health code, an article already used before the state of health emergency is declared. For the professor of public law at the University of Grenoble, this question of quarantine and the ban on demonstrations are major reasons for concern: “I believe that we will not get out of the state of health emergency on July 10; it’s just a de-escalation. “

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Video: Jacques Toubon: “The state of emergency and its exceptional provisions must be temporary” (France 24)

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