In June France's top constitutional authority, the Conseil Constitutionnel or Constitional Council, is set to rule on whether a key section of the legislation brought in to enforce France's emergency lockdown is legal or not. The law in question makes it possible for the courts to jail someone who has 'repeatedly' breached the lockdown rules.
As it stands anyone who commits more than three breaches of the lockdown rules within 30 days can be arrested and face criminal proceedings that can result in a six-month jail term and a fine of 3,750 euros. Initial breaches of the rules are subject to an on-the-spot fine of 135 euros.
The repeat offender offence was created in new legislation that was passed on March 23rd 2020, a week after the lockdown was introduced in France on March 17th to tackle the Covid-19 crisis. But it has been greeted with reservations from the start, not least because people can potentially be convicted and jailed under the multiple offence law before they have even decided whether to contest their initial fine for contravening the lockdown rules.
When deciding to refer the issue to the Conseil Constitutionnel, France's highest appeal court the Cour de Cassation said the wording of the legislation had been “cobbled together” and damaged fundamental rights. During the hearing, which ended on May 13th, the court's advocate general pointed to the text's “lack of precision” and criticised the “margin of discretion of the forces of law and order which carries with it a major risk which borders on the arbitrary”. Meanwhile Jean-Baptiste Perrier, professor of private law and criminal sciences at Aix-Marseille University in southern France, said: “The legislation is ill thought-out and very imprecise.”
This new offence has already been at the centre of legal controversy. There have been several cases questioning whether the process by which the police found out whether an offender had previously breached the lockdown was itself lawful. To discover those previous breaches, officers consulted what are called the ADOC files, a system set up in 2004 to centrally record motoring offences but to which lockdown breaches were added. A court subsequently acquitted a defendant over the improper use of the ADOC files in this way, even though he is said to have breached the lockdown rules five times. This case forced the Ministry of the Interior to issue a decree on April 16th to officially re-purpose the ADOC for use with lockdown offences.
The new debate over whether the repeat offender offence is constitutional has caused fresh consternation among both lawyers and prosecution authorities, some of whom are unsure whether current prosecutions should go ahead or not. “Certain prosecutors sensed the problem coming, which has been underlined by the [referral to the Constitutional Council], and used alternatives to criminal proceedings,” said Jean-Baptiste Perrier. Other prosecutors have preferred to release anyone held in custody for this offence under judicial licence, pending the verdict of the Constitutional Council.
However, that has not been true everywhere. At the start of the lockdown some prosecutors initially used the offence of “endangering the lives of others” to prosecute people who repeatedly broke the lockdown rules. But the Ministry of Justice advised against this approach and the new offence of 'repeat offending' was brought in. And as of May 18th some 1,589 cases “relating to the crime of repeated non-respect of the lockdown” have been recorded, according to a ministry spokesperson.
“Just over a quarter of them were dealt with through alternatives to legal proceedings,” added the ministry spokesperson. More than half - close to 57% - have led to legal proceedings, for the most part via summary trials (close to 31%), the similar CPPV process of expedited hearings, the CRPC system for guilty pleas (24%) and police summons (under 10%).
In the court system at Bobigny north-east of Paris, for example, prosecutors say that 340 proceedings have taken place for the “offence of repeated violation of the lockdown rules”. A spokesperson for the prosecution authorities there said that depending on the facts of the case, related offences and any previous criminal record, the response to repeat offenders ranged from a simple caution to an immediate trial, with a variety of other measures in between. These include settlements with a guilty plea, a reparation order for juveniles and a police or court summons. “A certain number of cases have also been dropped because not all the elements of the offence were present. Only 37 proceedings have led to immediate trials,” added the spokesperson.
However, there are no local or national figures as yet on the number of convictions in lockdown repeat offender cases, and any initial guilty verdicts are anyway likely to be appealed. According to the specialist newsletter Le Panier à Salade ('the Salad Basket'), which has recorded all the convictions reported in the press since mid-March, there have been “at least” 160 months of jail sentences handed down by the courts. But observers will have to wait until the end of 2021 before getting the official statistics from the Ministry of Justice, which are based on the outcome of cases after any appeal.
The number of prosecutions of repeat offenders will be linked to the number of breaches of the lockdown rules. On May 12th the interior minister Christophe Castaner gave the latest national figures for these, which showed there had been 20.7 million police and gendarme checks, which had given rise to 1.1 million fines, two thirds of them for not having the official form stating why you are allowed out during lockdown. This means that 5.3% of checks led to fines being issued. It is not know how many individuals were fined in this way as there are no figures on how many people have been fined more than once.
It is also difficult to make comparisons between different départements or counties within France. Apart from the prefecture in the Indre-et-Loire département in west central France, which says that they have had 139,395 checks and an offending rate of 4% , only the Paris police have figures for the whole period (see below). These figures show that the offending rate in relation to the number of checks is twice as high in the Seine-Saint-Denis and Val-de-Marne départements, which have areas of high deprivation, as central Paris and the Hauts-de-Seine département.
In March and April prefects across France's had readily given the number of lockdown breaches in their départements but the flow of figures has since dried up, and a spokesperson at the Ministry of the Interior said it did not have a regional breakdown of the numbers. Where geographical disparities have been shown, these might be explained by a different attitude to lockdown rules locally or by a variation in how tough the police and gendarmes are in enforcing them.
Another unclear factor is how many of the fines given out have already been paid and how many have been contested. The agency that records fines and appeals centrally, the Agence Nationale de Traitement Automatisé des Infractions (ANTAI), did not respond to Mediapart's request for information.
Throughout the lockdown people who have received on-the-spot fines for breaching the rules have voiced their unhappiness at the process, with some taking the view that the fine is put of proportion to the infractions committed. Kevin, who is from the Seine-et-Marne département just east of Paris, and who did not want to be identified, was fined on April 9th for having gone for a daytime run “on his own in a field” next to where he lived. He was unaware that the day before the prefect in his département had issued a decree banning all jogging between 10am and 7pm. Kévin, who says he acted in “good faith”, intends to fight the fine. The prefect's decree that led to his offence was in fact withdrawn six days later.
Other 'offenders' accuse officers of getting confused over the rules. Annick, who is in her seventies and lives in the 18th arrondissement in Paris, described how she was fined on March 27th because she had “ticked two boxes” on the document that people have to carry to justify them being outside. In her case the two boxes she had ticked describing the purpose of her journey were “buying essential goods” and “going for a walk”. She said that she was “quite astonished” to be fined, as she had been stopped and checked several times before without “any comment” as ticking two boxes was allowed.
On several estates in the Paris region, for example in Épinay-sous-Sénart and Mantes-la-Jolie, some residents complain they have been fined “on the go” - without their official documents being checked - by police officers who knew their names but did not approach them to find out what their justification was for going out.
Even though the lockdown was particularly eased in France on May 11th, some police lockdown controls continue. These mostly concern the ban on travelling more than 100km from your home without good reason, the requirement to wear a face mask on public transport and a ban on gatherings of more than ten people. Breaches of these rules can still lead to a fine of 135 euros and potentially criminal proceedings for repeat offences.
If the Constitutional Council rules against the new offence of repeated breaches of lockdown rules in June then the consequences for those already caught up in the criminal system will vary. If the Council decides to revoke that part of the legislation outright then anyone who is in prison just for this offence will be freed and anyone who is appealing against their conviction will be acquitted. However, people who had already served their sentence or paid their fine for it would not be compensated. The Council could also decide to postpone the effects of its ruling to give Parliament the time to change the law, or it could rule that this new offence complies with the French Constitution.
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- The French version of this article can be found here.
English version by Michael Streeter