A man in his 70s punished for a banner saying “Screw you, Macron”; a woman held in custody and later summonsed to appear in court for describing the French president online as “garbage”; another demonstrator placed in custody for having made a rude gesture towards the head of state. The movement against the pension reforms has highlighted the growing crackdown on expressions of discontent made by individuals during social protests.
In fact, the authorities have been intervening in demonstrations for several years to remove certain messages or to intimidate protesters. At some gatherings the practice of confiscating banners has become widespread, while the police have even asked residents to remove protest signs from their own balconies.
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“It's not really something new,” lawyer Nathalie Tehio, a member of the human rights groups the Ligue des Droits de l’Homme and the Observatoire Parisien des Libertés Publiques, explained when Mediapart reported on the issue in December. “It's about making protests invisible,” she said. “They make sure that you don't see them. It's a control over protests, seeking to muzzle or hide them.”
In the case of the 77-year-old who put up the anti-Macron banner at his home – he lives at Saint-Agnan-de-Cernières, a small village in Normandy – it was the first time he had come to the notice of the authorities in this way, according to local news website L’Éveil normand. Then on Sunday April 30th gendarmes went past his house where a banner proclaimed: “Screw you, Macron.”
He promptly received a summons to the local gendarmerie where, according to a gendarme captain quoted in the L’Éveil normand, he was “cooperative”. The officer then explained: “In view of his age he was not placed in custody.” In the end the pensioner was ordered to perform community service without standing trial, a process that legal expert Nicolas Hervieu later criticised on Twitter. “The punishment was meted out by the prosecutor alone,” wrote Hervieu. “Without a judge. Yet if the person concerned had been well advised, he could have chosen to have been tried. And he'd have probably got off in the name of freedom of expression.”
On April 19th a woman demonstrator at Sélestat in eastern France spent 23 hours in custody after giving the finger in the direction of Emmanuel Macron during a local visit by the president, as the the news website Rue89 Strasbourg reported. She has been summonsed to appear in court in September.
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Meanwhile, a woman called Valérie, who was a leading figure in local 'yellow vest' protests', received a visit from gendarmes at her home at Saint-Omer in north-west France on March 29th, according to La Voix du Nord newspaper. She is accused of writing “the garbage will speak tomorrow at 1pm” on her Facebook page on the day before President Macron was due to address the nation at lunchtime on television. Her trial is set for June 20th.
In a different case, an activist for the radical-left La France Insoumise party was arrested on Monday March 27th in Nice and later released without charge after being held in custody for seven hours. The reason for his detention was that he had gone to a demonstration with a 'paillasou' – a type of effigy that is part of carnival tradition in Nice – depicting Emmanuel Macron.
Another effigy has also been the target of prosecutors: on Monday April 24th a life-sized figure with a photo of Emmanuel Macron for its face was attached to a tree and burnt at Grenoble in south-east France. The following day prosecutors opened an investigation and handed the case to local police.
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In each of these cases, the arresting authorities evoked the same offence: that of insulting the president of the Republic. However, insulting the head of state is not a crime, or rather it is no longer a crime, under French law. That offence existed for a long time under article 26 of the 1881 law on freedom of the press. During the current Fifth Republic it was widely used by General Charles de Gaulle before falling into disuse.
One had to wait until the presidency of Nicolas Sarkozy (2007-2012) for it to re-emerge, in an incident that got lots of media coverage at the time. In August 2008, as he visited Laval in western France, President Sarkozy was greeted by a man holding a sign with the words “Get lost, idiot”. These were the words the president had himself used a few months earlier when someone had refused to shake his hand at the Agricultural Show in Paris. The activist was arrested, taken to court, and given a suspended fine of 30 euros.
The case later went before the European Court of Human Right (ECHR) which in a judgement delivered on March 14th 2013 criticised France for violating freedom of expression. The offence was then removed from French law in August of the same year. However, under article 433-5 of the criminal code it was replaced with a new offence of insulting a person in public authority. This is punishable by six months imprisonment and a fine of 7,500 euros.
So do the arrests for insulting Emmanuel Macron that were made during the pension protest movement conform with the ECHR ruling? It looks unlikely. Last December France's top appeal court, the Cour de Cassation, overturned the conviction of a person who had demonstrated with a poster depicting Emmanuel Macron as Adolf Hitler accompanied by the words: “Obey, get yourself vaccinated.”
“Freedom of expression can be limited when you're dealing with an offence of causing harm, or the crime of insulting,” explains Thibaut Spriet, national secretary of the professional body for judges and prosecutors the Syndicat de la Magistrature (SM). “But this is very circumscribed. It has to harm the dignity of their office. Moreover, the jurisprudence gives a different interpretation when there are demonstrations of which slogans are an intrinsic part.”
“By its nature, the offence of insulting constitutes an obvious violation of freedom of expression. The latter is the main principle and it can only be limited in a case of abusive use,” says Claire Dujardin, president of the lawyers association the Syndicat des Avocats de France (SAF). “Yet the act of insulting is not necessarily an abusive use [of the freedom of expression] in itself. Satire is allowed in a democratic society. The ECHR is particularly vigilant when the person targeted has a position of public authority because in those cases criticism is the expression of political opposition. And even when it shocks, even when it wounds, it remains freedom of expression.”
“There's consistent jurisprudence stating that the protection of freedom of expression also covers comments that might shock or even cause anxiety, and that any punishment must be proportionate,” continues Claire Dujardain. “For example, in a ruling on March 29th 2023 the Cour de Cassation ruled that the criminal conviction of people who removed portraits [editor's note, of President Macron from town halls] constituted a disproportionate intervention because their action involved political protest, expressed in a calm and non-violent way. In the same way, a judgement from the ECHR on October 13th 2022 ruled that the punishment of a suspended prison sentence given to an activist from [international women's movement] Femen who had carried out a topless protest in a church was also disproportionate interference in the freedom of expression.”
What's worrying is that the government no longer tolerates criticism or satire.
Last September the police even went so far as to knock on the doors of several residents of a neighbourhood in the south-western town of Pau which Emmanuel Macron was due to visit, to confiscate signs on their windows and balconies, even though they were good-natured in tone. The police justified this intervention on the grounds that these signs “might be considered offensive towards the president of the Republic”.
Such actions worry Thibaut Spriet from the Syndicat de la Magistrature. “There were already major problems during the 'yellow vest' movement, with mass confiscations of equipment with no legal basis and no clear criteria,” he says. “The [rights ombudsman] Défenseur des Droits also criticised these actions in an opinion delivered in July 2020.”
“What's worrying is that the government no longer tolerates criticism or satire,” says lawyer Claire Dujardin, referring to the recent arrests. “We're now in what sociologist Sebastien Roché calls a 'police democracy'. The trouble is that we don't know in these cases whether the decision to arrest was that of the police officer who judged that an offence had taken place, or if there had been a note or circular from the ministries of Justice or the Interior. We don't know if it's systemic or not.”
The lawyer also points to the misuse being made of police custody (see Mediapart's report here). “People are often released without any proceedings, but they have a file and they have been put under pressure, sometimes by the offer of an alternative to [criminal] proceedings,” she says. “And they accept rather than risk going to court.”
“There's a real re-purposing of police custody which they're using as a tool to maintain law and order,” says Thibaut Spriet. “They're looking for any pretext to put [someone] in custody.” Yet, says the magistrate, the “institutions must, even more than usual, allow freedom of protest.” He adds: “It is precisely at this moment that the rule of law has to function.”
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- The original French version of this article can be found here.
English version by Michael Streeter