On the evening of March 18, with protests raging across France over an unpopular hike in the retirement age, police in Paris detained an individual in the heart of the Latin Quarter.
The arresting officer checked off boxes indicating the person had been detained for “participating in a group preparing to commit violence” and “participating in a crowd despite orders to disperse” — two of the most common criminal accusations leveled at protesters in France, and ones that advocates say are now overused to the point of abuse. But, according to a formal arrest sheet shared with The Intercept by Paris-based human rights lawyer Raphaël Kempf, the only detail provided by the officer for these violations read as follows: “black pants and black jacket, sunglasses, North African, short, black hair.”
The detainee was later released without charge, but the real goal — to sweep up demonstrators and tamp down protests — was accomplished, according to human rights attorneys alarmed at the style of the French crackdown. Alongside a team of other lawyers and nearly 100 plaintiffs, Kempf is now suing the Paris police and prosecutor’s office for what he deems “arbitrary arrest”: a practice that many defenders of civil liberties in France believe is increasingly used in order to quell protests.
The practice was honed during the yellow vest protests over the rising cost of living, which erupted in late 2018. At the height of that movement, around 5,000 of the roughly 11,000 people arrested were ultimately prosecuted, according to government figures shared with Amnesty International; only about 3,000 were convicted of anything. Arié Alimi, another prominent lawyer specialized in civil liberties and a member of France’s Human Rights League, also pointed to a December 2020 protest in Paris over a proposed national security law in which the overwhelming majority of the 150 arrests did not lead to prosecutions.
Underlying these arrests are a string of laws that critics say have been weaponized against protesters. That includes a prohibition on participation in a “crowd” susceptible of “troubling public order” and a ban on partially covering one’s face in a demonstration without a “legitimate motive,” a requirement complicated by the coronavirus pandemic. Most of all, police tend to cite a 2010 law that bans “participating in a group” preparing acts of violence.
“In the justice system, it’s very hard to convict someone for this, but on the other hand, it’s very easy to bring someone into police custody,” said Thibault Spriet, national secretary of the Syndicat de la magistrature, a major trade union representing magistrates, referring to the 2010 law. “A police officer might say, ‘Oh, he was in a group that burned a trash can.’”
French human rights observers are also sounding the alarm over outright bans on demonstrations — including a particularly absurd crackdown on kitchen utensils.
Ever since demonstrators responded to a primetime speech from President Emmanuel Macron last month by gathering in cities and towns and banging on pots and pans, this particular form of noisemaking has come to symbolize opposition to the government’s new pension law. The reforms, which were unveiled in January and signed into law last month, raise the retirement eligibility age from 62 to 64 and have been met with waves of protests and nationwide strikes. So-called casserolades have greeted Cabinet members at many of their recent public appearances.
They may seem like simple expressions of dissent that should be protected by the French Constitution. And yet, several police prefects — officials who operate under the direct authority of the Interior Ministry under France’s centralized government — have cast the noisy protests as a threat to national security, especially when they target the president. “Prefects are misusing a national security law,” said Alimi. “It’s ridiculous but at the same time it’s very effective.”
On the eve of Macron’s trip to a small southern town on April 20, local police published a decree outlawing the use of “portable sonorous devices” within the perimeter of the president’s visit. Authorities later insisted there was never a ban on pots and pans specifically, but videos clearly show police informing demonstrators otherwise. Another prefect issued a similarly worded decree ahead of a subsequent visit, and last Tuesday, yet another order landed hours before a separate presidential outing — this time also outlawing “festive” protests of “musical character.” Each of the orders cited laws designed to prevent terrorist attacks.
An administrative court ultimately struck down the second order but not until Macron’s visit was already underway. And while the police eventually withdrew the final order hours before the president’s arrival, security forces still physically blocked protesters from approaching the area of Macron’s visit. (Asked about the legal basis for that action, the French Interior Ministry did not respond to a request to comment.)
For Alimi, the crackdown on the casserolades are just the latest sign of a growing assault on the right to protest. “There’s a real desire from authorities to prevent protests from taking place, to see organized protests become unstructured protests, and to prevent as many people as possible from going to protests, either by stopping them or by intimidating them,” he said.
Alimi also believes the protest bans are part of a larger strategy, which he calls illégalisme. “There’s a deliberate strategy from authorities to violate the law and to make the law evolve toward reinforced crowd control, which is what we’ve seen with the [authorization of] drones and kettling [tactics],” he said. “Prefects decide to violate the law to force legislators to make the law evolve in their direction. It’s a kind of Overton window through acts.”
“We can’t let the fact that protesters were arbitrarily detained go unpunished.”
Mass protests continued on May 1 despite the arrests, with between 782,000 and 2.3 million people turning out nationwide. Still, human rights advocates worry the detentions may be discouraging some from exercising their rights. “For us, the police and the prosecutor of Paris are using criminal law and the deprivation of liberty in the goal of preventing people from protesting and we think this is illegal,” said Kempf, who also authored the 2022 book “Violences Judiciaires.” “We can’t let the fact that protesters were arbitrarily detained go unpunished.”
Police arrest a demonstrator on the traditional Labor Day protest in Paris on May 1, 2023.
Photo: Gabrielle Cezard/Sipa via AP Images
The Interior Ministry did not respond to a request from The Intercept to provide nationwide arrest figures at protests since January, but a limited set of figures in Paris are available: From March 15 to March 27, authorities detained a whopping 880 people at protests in the capital alone. By the end of the month, only 210 — less than 25 percent of those arrested — were actually charged. The vast majority of those detained, a group that included passersby, were released without facing charges. This sharply contrasts with standard practices. In 2021, 89 percent of those detained by police total ultimately faced charges.
On March 16, the day Prime Minister Élisabeth Borne deployed a constitutional measure allowing the government to approve pension reforms without an up-or-down vote in the National Assembly, the arrests yielded an especially staggering gap. Of the 252 people brought into police custody, 243 were released without facing charges.
The batch of arrests caught the eye of human rights observers. In late March, the Defender of Rights, an independent civil rights ombudsman funded by the French government, issued a statement warning about the use of “preventive arrests” and “disproportionate” measures at demonstrations. A few days later, Council of Europe Commissioner for Human Rights Dunja Mijatovic expressed concerns over the “arrest and detention in police custody of some demonstrators and persons who were in the vicinity of the demonstrations for acts that do not justify such interferences with the right to liberty and security.”
Spriet, the trade union representative, said he agreed police have abused their authority by sweeping up protesters en masse, especially in Paris.
“Bringing people into custody is a legal measure meant to respond to an offense. It’s not something that’s meant to be preventive,” he told The Intercept. “Even if the justice system filters the cases afterwards, it’s usually coming in too late. There’s a general dysfunction that’s hard for us to swallow as members of the legal system.”
“Bringing people into custody is a legal measure meant to respond to an offense. It’s not something that’s meant to be preventive.”
Further complicating matters for protesters is a misrepresentation of existing law at the highest levels of government. In France, groups that want to demonstrate are supposed to notify prefects in advance. Undeclared protests run the risk of attracting a police presence, but participating in one is not an offense, as France’s highest court confirmed as recently as last year.
Nevertheless, Interior Minister Gérald Darmanin has stated otherwise, falsely claiming that people can be legally detained for simply taking part in an undeclared protest. The minister has also floated the idea of cutting off public subsidies for the Human Rights League, France’s oldest civil rights organization, which has criticized the government’s handling of demonstrations.
The increasingly harsh rhetoric worries Fabien Goa, a researcher with Amnesty International based in France. “We have ministers at the highest levels actively misrepresenting people’s rights to participate in protests,” he said. “I think that’s novel and it’s concerning because it contributes to a wider stigmatization of people exercising their basic human rights.”
Much like fellow lawyer Alimi, Raphaël Kempf believes existing civil liberties are under threat of further erosion. “There’s an instrumentalization of criminal law and the justice system to political ends and in favor of law enforcement,” Kempf said. “It’s worrying. It shows France is sliding toward a form of police authoritarianism in which faith is placed in the police without questioning them.”
In the meantime, protesters are trying to work around the various legal obstacles. Last week, an online activist based in Belgium created a new website titled “My Kitchen Pot.” It allows users to play a clip with the sound of banging pots and pans — just in case of any future bans on IRL cookware.
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