Curfew and house arrest of an Islamist during state of emergency. Non-violation of the ECHR
JUDGMENT
Pagerie v. France 19.01.2023 (app. no. 24203/16)
SUMMARY
Freedom of movement. Adequate procedural safeguards for the thirteen-month preventive curfew imposed on a radicalized Islamist during a state of emergency following terrorist attacks.
Taking into account the urgency of preventing terrorist acts, the applicant’s conduct, the procedural guarantees he actually benefited from and the periodic review of the need for house arrest, the ECtHR considered that the measures were not disproportionate. The Court found no violation of the ECHR.
PROVISION
Article 2 of the 4rth Additional Protocol
PRINCIPAL FACTS
Following the coordinated attacks in and around Paris on the night of 13-14 November 2015, claimed by a jihadist group, which claimed the lives of 130 people, France declared a state of emergency, which was extended six times by law before being lifted on 1 November 2017. During this period 18 attacks were committed or attempted in France, 5 of which resulted in the loss of life.
The applicant, a radicalized Islamist, was subject to a curfew from 22 November 2015 to 11 June 2017, apart from a period of imprisonment between 5 August 2016 and 18 January 2017. His curfew was effected by a series of five Home Secretary orders to prevent any possibility of his involvement in terrorist acts. The applicant appealed against the orders, but all were dismissed by the administrative courts. On 11 June 2017, he was arrested and brought before a court to stand trial on charges of breaching a curfew and regularly accessing an online service that expressed support for or incited terrorism. He was taken into custody.
THE DECISION OF THE COURT…
a) Application of Article 2 of the 4th Protocol
Article 2 of the 4th Protocol applies only to restrictions on free movement.
Firstly, these measures had the effect of prohibiting the applicant from leaving the municipal area of his residence, he had to stay at home between 8 p.m. and 6 a.m., he was prohibited from contacting a third person between July 22 and August 5, 2016, and was forced to surrender his passport and any proof of identity from January 18, 2017. Breach of these obligations is punishable by imprisonment. The applicant had been imprisoned twice for this reason.
Second, this house arrest had a cumulative duration of almost 13 months. In practice, few measures taken on this basis have lasted this long. In addition, it was accompanied by long and close surveillance by the police.
Thirdly, the applicant retained his freedom to go out during the day and was not prevented from having a social life and maintaining relations with the outside world. Furthermore, he could have asked for permission to end his house arrest, which he failed to do.
The Court has previously examined, under Article 2 of the 4th Protocol, comparable measures of a longer or equal duration than the one at issue (Labita v. Italy [GC], VitoSanteSantoro v. Italy, M.S. v. Belgium and Timofeyev and Postupkin v. Russia). Taking all the evidence into account, the contested house arrest had to be considered a measure restricting freedom of movement.
(b) Compatibility with Article 2 of the 4th Protocol
(i) Quality of the legislation – The intervention was provided for by article 6 of the law of 3 April 1955, as interpreted by the Council of State and by the Constitutional Council. The principles relating to the foreseeability of the law were presented in De Tommaso v. Italy [GC] and Rotaru v. Republic of Moldova.
Regarding the precision of the terms used – Article 6 of the Act of 3 April 1955 empowers the Home Secretary to order the house arrest of any person “whose conduct there are serious grounds for believing constitutes a threat to public order and security”.
The level of detail of the national legislation required depends largely on the content of the law in question, the area it is intended to cover and the number and status of those to whom it is addressed.
The disputed provisions can only be applied in the context of the state of emergency, and in the areas where it is applied. However, a state of emergency can only be declared in exceptional cases, which are strictly defined by law. This legislation, which deviates from the common law, is therefore intended to be applied only exceptionally, in a limited space and time. In addition, in order to receive the measure of house arrest, the law requires the existence of a risk characterized by a threat to public safety. And where the duration of the measure exceeds 12 months, the required threat must be of “particular gravity”.
The preservation of “national security” and “public order” are expressly referred to as the legitimate aims that can justify interference with the rights guaranteed by Article 2 of the 4th Protocol. From this point of view, it seems unrealistic to require the national legislature to draw up an exhaustive list of conduct that might justify the application of police powers. However, such extraordinary legislation cannot in any case be proved to the contrary to the principles of the rule of law.
The application of the state of emergency and the status of the house arrest measure are strictly governed by domestic law. The Court attaches particular importance to the fact that national courts have interpreted the emergency legislation in question in order to provide the individual with adequate protection against arbitrariness.
House arrest measures taken in the context of the state of emergency are subject to effective judicial review, offering procedural guarantees commensurate with the importance of the right at stake.
The provisions in question, as interpreted by the national courts, define with sufficient clarity the scope and conditions of the discretionary power conferred on the Minister of the Interior and provide appropriate safeguards against the risk of abuse and “arbitrariness”. This legal basis was therefore foreseeable.
(ii) Lawfulness of the objectives pursued – The objectives pursued by the impugned intervention, which are the maintenance of national security and public safety and the maintenance of public order, were legitimate.
iii) Was the said intervention necessary?– The intervention was particularly intense for a continuous period of more than 13 months: it included a ban on leaving the wider area of the municipality, a night curfew and the obligation to report three times a day to the police, with a prison sentence of case of non-compliance.
House arrest was initially based on the applicant’s “religious radicalisation”, his violent temper and criminal record, as well as the fact that he had attempted to contact the head of an Islamist organization for armed jihad, advocating the establishment of a caliphate and the implementation of sharia law in France.
Therefore, such a restriction of free movement cannot be based solely on an individual’s beliefs or religious practice. In the present case, the Home Secretary relied on a set of elements which made it possible to characterize ‘behaviour’ which gave rise to serious grounds for believing that it constituted a threat to order and security. This measure was ordered a few days after the attacks of 13 November 2015, on a date when the protection of the population and the prevention of a new act of terrorism was, without a doubt, imperative. In this respect, the effectiveness of a preventive measure often depends on the speed with which it is implemented. Moreover, the terms of the measure, while strict, were fit for purpose.
Under these circumstances, the contested measure was based on relevant and sufficient reasons in this context, characterized by the existence of a threat to national security and public order.
Subsequently, the applicant’s house arrest and its conditions were regularly reviewed on eight occasions by the Home Secretary. In order to decide on its extension, it relied on a substantial body of evidence revealing the persistence of the risk that the measure was intended to prevent, namely a possible interference (in particular the applicant’s public statements, his conduct, jihadist circles, as well as jihadi propaganda videos inciting the use of violence found on his devices).
Furthermore, neither the applicant’s house arrest nor his additional obligations prevented him from having a social life and maintaining contact with the outside world. In addition, the administrative authority took into account his individual situation, without work or family responsibilities, as well as the alleged health difficulties he had by seriously considering his medical condition. The applicant never asked the administrative authority for permission to leave his house arrest or for a review of the measure for family or professional reasons.
Thus, the duration of the measure and the maintenance of the restrictions were based on relevant and sufficient reasons.
Furthermore, all administrative decisions taken against the applicant were subject to judicial review. The applicant was indeed able to present his allegations before the domestic courts, which seriously reviewed the reasons for his house arrest each time it was extended.
The Court then checked whether the presentation of the blank notes before the courts was accompanied by sufficient procedural guarantees. White notes are documents drawn up and used by intelligence services to pass on information to other authorities. The submission of these to the procedure enabled the applicant to know the facts on which his house arrest was based and to request relevant clarifications. These facts, for the most part, were not disputed by the person concerned.
Taking into account all the previous and taking into account the urgency of the prevention of terrorist acts, the applicant’s conduct, the procedural guarantees he actually benefited from and the periodic review of the need for house arrest, the ECtHR considered that the measures were not disproportionate.
Therefore, the Court found no violation of Article 2 of the 4th Protocol of the ECHR (edited by: echrcaselaw.com).
