When a demonstration is banned: limits and remedies

Under article L211-4 of the Internal Security Code, if the authority holding police powers (the mayor or the prefect; in Paris, the police prefect) considers that the planned demonstration is likely to disturb public order, it bans it by an order that it immediately notifies to the signatories of the notification.

A ban must be necessary, suitable and proportionate. The judge checks that the risk of disorder is real, and that the authority could not have prevented it with a lighter measure: changing the route, adapting the time, strengthening the stewarding.

This is the application of the Benjamin ruling (Council of State, 19 May 1933): the ban on a lecture by René Benjamin in Nevers was annulled because public order could be maintained without banning it.

Organisers may apply to the administrative court. The urgent liberty injunction (référé-liberté, article L521-2 of the Code of Administrative Justice) allows an urgent request to suspend a serious and manifestly unlawful infringement of a fundamental freedom; the judge rules, in principle, within forty-eight hours.

The suspension application (article L521-1) and the action for annulment, which are slower, complete these routes. Acting early is decisive: the closer the notification of the ban to the date, the less time there is to challenge it.

Taking part in a demonstration banned under article L211-4 is a fourth-class petty offence (article R644-4 of the Criminal Code, created in 2019). Organising a banned demonstration is, for its part, a criminal offence (article 431-9).

The law of 10 April 2019 aimed to strengthen the maintenance of order during demonstrations. Its article 3 allowed the administrative authority to ban a person from taking part in a demonstration. In its decision of 4 April 2019, the Constitutional Council struck it down for lack of sufficient safeguards.

It recalled that freedom of expression and the right to the collective expression of ideas and opinions are all the more precious as their exercise is a condition of democracy, and that any restriction must be necessary, suitable and proportionate to the aim pursued.