Restrictive measures of curfew and house arrest for an alleged terrorist. No violation of free movement
JUDGMENT
Fanouni v. France 15/06/2023 (app. no. 31185/18)
SUMMARY
The case concerned a home curfew imposed on the applicant in the context of a state of emergency,
prohibiting him from leaving the municipality of Champagne-sur-Oise.
The Court considered, first of all, that the legal basis for the measure complained of, namely the Act
of 3 April 1955, had fulfilled the requirements of foreseeability of the law both before and after its
amendment by the Act of 20 November 2015. The Court went on to find that the aims pursued – to
preserve national security and public safety and maintain public order – had been legitimate.
As to the factual basis for the measure, the Court noted that the administrative authority had relied
on precise information provided by the intelligence services and reported in a “note blanche”
indicating, in particular, that a large quantity of prohibited weapons and ammunition had been
found at the applicant’s home. It noted that the consideration of these factors by the administrative
courts had been accompanied by sufficient procedural safeguards, and found that the conclusions
which the courts had drawn had been neither arbitrary nor manifestly unreasonable.
In view of the pressing social need to prevent acts of terrorism, the applicant’s behaviour and the
procedural safeguards actually provided to him, the Court concluded that the home curfew imposed
on the applicant had not been disproportionate to the aims pursued. There had therefore been no
violation of Article 2 of Protocol No. 4.
PROVISION
Article 2 of the 4rth Additional Protocol
PRINCIPAL FACTS
The applicant, Mistafa Fanouni, is a French national who was born in 1970.
On 26 January 2015 the prefect of the Val d’Oise département ordered Mr Fanouni to surrender to
him all the weapons and ammunition in his possession, and prohibited him from acquiring or
possessing any weapons or ammunition.
On the night of 13 November 2015 a series of coordinated attacks, claimed by Daesh, were carried
out in Saint-Denis and in Paris. A state of emergency was declared on 14 November 2015.
In two orders of 16 November and 18 December 2015, the Minister of the Interior imposed a home
curfew on Mr Fanouni, prohibiting him from leaving the municipality of Champagne-sur-Oise and
requiring him to report four times a day to a gendarmerie station and to remain at home between
the hours of 8 p.m. and 6 a.m. In two judgments of 18 February 2016, the Cergy-Pontoise
Administrative Court set aside those orders for abuse of authority.
On an appeal by the Minister of the Interior, on 21 June 2016 the Versailles Administrative Court of
Appeal quashed those two judgments and set aside the lower court’s findings. Mr Fanouni appealed
on points of law against that judgment.
In a decision of 28 December 2017 the Conseil d’Etat quashed the judgment on the grounds that the
adversarial principle had been breached. Then, ruling on the merits, it quashed the two judgments of
18 February 2016.
THE DECISION OF THE COURT…
Article 2 of Protocol No. 4
The Court noted that the home curfew imposed on the applicant had been based on two successive
ministerial orders issued on 16 November and 18 December 2015, which had been enforced until
they were set aside by the Cergy-Pontoise Administrative Court on 18 February 2016. In view of the
effects and the manner of enforcement of the home curfew, the Court considered that it amounted
to a mere restriction on freedom of movement falling within the scope of Article 2 of Protocol No. 4.
The Court reiterated that section 6 of the Act of 3 April 1955, as amended by the Act of
20 November 2015, fulfilled the requirements of foreseeability of the law, as it had held in the case
of Pagerie v. France.
The earlier version of that section had laid down stricter implementing conditions. The Court
therefore found, a fortiori, that its provisions had been foreseeable and had defined with sufficient
clarity the scope and manner of exercise of the discretion conferred on the Minister of the Interior.
Turning to the legitimacy of the aims pursued, the Court considered that the objectives pursued by
the interference complained of, namely to preserve national security and public safety and maintain
public order, had been legitimate.
As to the necessity of the restriction in issue, the Court noted that the Minister of the Interior, in
imposing the home curfew on the applicant, had relied on the seriousness of the terrorist threat and
on various reports brought to his attention by the intelligence services.
The Court further noted that the Administrative Court of Appeal and the Conseil d’État had also
considered the measure to be justified by the fact that weapons and a large quantity of ammunition
had been found at the applicant’s home on 16 November 2015, although he had been prohibited
from possessing weapons by an order of 26 January 2015.
In that connection the Court stressed, firstly, that the home curfew orders in question had been
based on a set of precise factors relating specifically to the applicant. Secondly, the Court noted that
both the orders made against the applicant had been the subject of a judicial review during which he
had been effectively able to put forward his arguments. It observed that the Conseil d’État had
remedied the breach of the adversarial nature of the proceedings alleged by the applicant, by
quashing the Versailles Administrative Court of Appeal judgment of 21 June 2016 and ruling on the
merits. In the course of their judicial review the domestic courts (the Administrative Court, the
Administrative Court of Appeal and the Conseil d’État) had examined the merits and the
proportionality of the home curfew orders.
In those circumstances, the Court considered that the submission of the “note blanche” had been
accompanied by sufficient procedural safeguards and that the conclusion reached by the domestic
courts could not be regarded as either arbitrary or manifestly unreasonable.
As to the justification for the measure, the Court noted that the domestic authorities had relied on
information to the effect that the applicant had engaged in proselytism, had compared jihadists to
resistance fighters, had made remarks and displayed behaviour that raised concerns at the firing
range he frequented – asking repeatedly for a dummy head to be used instead of the target so that
he could “put a bullet between his eyes” – and had fitted his weapon with a silencer and boasted
that he regularly carried it around outside the firing range. The Court observed that the measure had
also been justified by the fact that a large quantity of weapons and ammunition had been found at
the applicant’s home on 16 November 2015, although he had been prohibited on 26 January 2015
from possessing weapons. The Court stressed that the measure had been ordered a few days after
the attacks of 13 November 2015, at a time when the protection of the population and the
prevention of a further terrorist attack had constituted a pressing need. It reiterated that the
effectiveness of a preventive measure frequently depended on the speed of its implementation. In
such a context, the Court considered that the reasons adduced by the domestic authorities to justify
the measure were relevant and sufficient. Furthermore, while the means of implementation of the
measure had been stringent, they had been appropriate to its purpose. The Court also noted that
the applicant had not made any request to the authorities to adjust the arrangements or to be
allowed to leave the area covered by the home curfew temporarily for family or work-related
reasons. Lastly, the judicial review of the measure had encompassed not just the principle of the
home curfew but also its proportionality.
In view of the pressing social need to prevent acts of terrorism, the applicant’s behaviour and the
procedural safeguards actually provided to him, the Court concluded that the home curfew had not
been disproportionate to the aim pursued. There had therefore been no violation of Article 2 of
Protocol No. 4.
