The 1958 Constitution of the French Republic (as amended through 2008) is the fundamental legal basis of France's Fifth Republic. Although it does not include rights within its substantive provisions, the reference in the preamble to the 1789 Declaration of the Rights of Man and of the Citizen has been held by the Constitutional Court to mean that a law that violates those rights would be unconstitutional.Constitutional Court, Decision No. 71-44 DC of 16 July 1971.The rights protected by the 1789 Declaration include liberty, property, security, and resistance to oppression (but, surprisingly, not the right to life). There is no explicit protection of the right to peaceably assemble in the French Constitution.
The 1958 Constitution does not explicitly refer to the French police or the Gendarmerie (a paramilitary police force under the Ministry of Defence), though it does refer to a public force "To guarantee the Rights of Man and of the Citizen".Art. 12, 1958 Constitution.In time of armed conflict, the Gendarmerie are to be considered as members of the armed forces.
|1966 Covenant on Civil and Political Rights (ICCPR)||State Party|
|ICCPR Optional Protocol 1||State Party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||Yes|
|CAT Optional Protocol 1||State Party|
1998 Rome Statute of the International Criminal Court
|1950 European Convention on Human Rights||State Party|
Police Use of Force
The actions of law enforcement officials are governed by the 2016 Penal Code. Negligent homicide resulting from the acts or omissions of law enforcement officials (and others) is punishable by three years' imprisonment and a fine of €45,000.Art. 221-6, 2016 Penal Code.If the act or omission was wilful, the penalty increases to three years' imprisonment and a fine of €45,000.Art. 221-6, 2016 Penal Code.The Penal Code specifies, however, that immunity exists where the law enforcement official used a firearm where it was strictly necessary and proportionate with a view to preventing a murder or attempted murder that was proximate in time.("dans un temps rapproché" in the original French text.) Art. 122-4-1, 2016 Penal Code.Unjustified violence resulting in mutilation or permanent disability is punishable by ten years' imprisonment and a fine of €150,000.Art. 222-9, 2016 Penal Code.
Governing the acts specifically of law enforcement officials is the Code of Ethics of the Police and the Gendarmerie in France, which is included in the 2013 Internal Security Code.Code de déontologie de la police nationale et de la gendarmerie nationale (codifié au livre IV, titre 3, chapitre 4 de la partie réglementaire du code de la sécurité intérieure, entré en vigueur le 1er janvier 2014.Under this Code, any person in the custody of a police officer or gendarme must be protected from any form or violence and inhuman or degrading treatment.Article R. 434-17, 2014 Internal Security Code.Force must be used only when necessary and in a manner that is proportionate to the serious of the threat.
The provisions of the Code were amended in 2017. Article L. 435-1 of the Code now allows Police officers and gendarmes may use their firearms "in case of absolute necessity and in a strictly proportionate manner":
1. When attacks on life or physical integrity are made against them or against others or when armed persons threaten life or physical integrity;
2. When, after two warnings are given, they can not otherwise defend the places they occupy or the persons entrusted to them;
3. When, immediately after two warnings have been given, they can not compel the arrest, other than by use of arms, of persons who seek to evade custody or investigation and who are likely to perpetrate in their flight, attacks on lives or physical integrity;
4. When they can not immobilize, other than by the use of arms, vehicles, boats or other means of transport, whose drivers do not obey an order to stop and whose occupants are likely to perpetrate in their flight, attacks on their lives or on their physical integrity or on those of others;
5. For the exclusive purpose of preventing the repetition, in a short time, of one or more murders or attempted murders committed when they have real and objective reasons to believe that this reiteration is the information available to them when they use their weapons.
Use of force by France's police is overseen with the police service by the National Police General Inspectorate (L'inspection générale de la police nationale: IGPN). The IGPN comprises seven regional offices: in Bordeaux, Lille, Lyons, Marseille, Metz, Paris, and Rennes as well as an office in Nice. A separate General Inspectorate exists for the gendarmerie.Inspection Générale de la Gendarmerie Nationale.France has, though, been criticised by human rights groups, such as Amnesty International, for an alleged de facto state of impunity for the use of force by its police officers.See, e.g., Amnesty International, Public Outrage: Police Officers Above the Law in France, AI Index EUR 21/003/2009, London, 2009.
In response to criticism, France established a national Ombudsman (Le Défenseur des droits) who is tasked by the Constitution with "overseeing respect for rights and liberties".Art. 71(1) 1958 Constitution (as amended).The Ombudsman has a broad remit, which includes police oversight. In a 2017 decision, relating to the use of tear gas in the arrest of 53 individuals at a music concert in January 2011, the Ombudsman criticised the police for the decision to fire tear gas canisters inside the building. This did not respect set procedure, nor was it necessary in the circumstances according to the decision.
Views and Concluding Observations of United Nations Treaty Bodies
In 2015, in its Concluding Observations on France, the Human Rights Committee expressed its concern about
allegations of ill-treatment, the excessive use of force and the disproportionate use of non-lethal weapons, especially during arrests, forced evictions and law enforcement operations.Human Rights Committee, Concluding Observations on France, UN doc. CCPR/C/FRA/CO/5, 17 August 2015, §15.
The Committee was "further concerned about continued racial profiling and allegations of police harassment, verbal abuse and abuse of power against migrants and asylum seekers in Calais".Human Rights Committee, Concluding Observations on France, UN doc. CCPR/C/FRA/CO/5, 17 August 2015, §15.It called on France to
adopt effective measures, particularly in terms of training, to prevent law enforcement and security forces from using excessive force or non-lethal weapons in situations that do not warrant recourse to greater or lethal force. In that connection, the Committee draws the State party’s attention to the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. The State party should also ensure that allegations of racial profiling, ill-treatment and excessive use of force are thoroughly investigated; perpetrators are prosecuted and, if convicted, punished with sanctions commensurate with the seriousness of the crime; and victims are adequately compensated.Human Rights Committee, Concluding Observations on France, UN doc. CCPR/C/FRA/CO/5, 17 August 2015, §16.
In 2016, the Committee against Torture also expressed its concern by "the allegations of excessive use of force by the police and the gendarmerie, which has in some instances led to serious injuries or death." It was also concerned by:
(a) reports of problems faced by victims in filing complaints;
(b) the lack of statistical data on complaints filed that would allow for comparisons with inquires launched and cases prosecuted;
(c) the lack of detailed information on related convictions of police and gendarmerie officers and the sentences handed down; and
(d) reports of high numbers of cases being dismissed or discontinued, light administrative sanctions being imposed that are not proportionate to the seriousness of the actions, and a very small number of court-ordered penalties being imposed upon police and gendarmerie officers.Committee against Torture, Concluding Observations on France, UN doc. CAT/C/FRA/CO/7, 10 June 2016, §16.
The Committee was further concerned "about the allegations of violence being used against asylum seekers and migrants, and about their situation in Calais and the surrounding area".Committee against Torture, Concluding Observations on France, UN doc. CAT/C/FRA/CO/7, 10 June 2016, §16.The Committee called on France to
enhance its efforts to prevent any excessive use of force by the police and the gendarmerie and to ensure that:
(a) The necessary steps are taken to guarantee that, in practice, victims of police violence are able to file complaints, that the complaints are registered and that, if appropriate, the complainants are afforded protection against any risk of retaliation;
(b) Any case brought to its attention is promptly investigated in an impartial, independent and transparent manner within a reasonable time frame;
(c) Cases are prosecuted and, in the event of conviction, punishment proportionate to the seriousness of the actions is ordered;
(d) Complete, disaggregated statistics are kept on complaints filed and reports received of acts of violence or excessive use of force, and on administrative or judicial inquiries opened into police or gendarmerie actions, prosecution proceedings launched, convictions and penalties handed down, and on cases proceedings dismissed or discontinued.Committee against Torture, Concluding Observations on France, UN doc. CAT/C/FRA/CO/7, 10 June 2016, §17.
Toubache v. France
The European Court of Human Rights held in this case that there had been a violation of Article 2 (the right to life) of the European Convention on Human Rights. The case concerned the necessity and proportionality of the use of force by French law enforcement agencies in the context of the death of the applicants’ son, who was shot and killed by a gendarme while travelling in the rear of a fleeing vehicle.
The Court stated that it did not wish to impose an impossible burden on the authorities. It noted that the gendarmes had earlier used alternative methods to try to stop the car and that the death of the applicants’ son had occurred during an unplanned operation during which the gendarmes had had to react without prior preparation. Nevertheless, in view of the fact that the driver had not posed an immediate threat and that stopping the vehicle had not been a matter of urgency, the use of a firearm by a gendarme not been absolutely necessary in order to carry out a lawful arrest for the purposes of Article 2(2)(b) of the Convention.
The Court noted that after the events in this case France passed a law incorporating the principles laid down in the Court’s case-law, according to which law enforcement officials may use weapons only in cases of absolute necessity and in a strictly proportionate manner.
Boukrourou v. France
This case concerned the death during a policing operation of an individual suffering from a serious mental health disorder. The applicants were the deceased’s brothers, sister, widow, father and mother. The Court found that there had been no violation of Article 2 of the European Convention on Human Rights, but there had been a violation of Article 3 (the right to freedom from inhumane treatment). The decision not to find a violation of the right to life was based partially on the relatively weak causal link that existed between the actions of the police and the death of Mr Boukrourou.
Douet v. France
This case concerned the use of force during the arrest of Mr Gilbert Douet by French gendarmes. In the course of making the arrest, officers struck him several times with a telescopic baton.European Court of Human Rights, Douet v. France, Judgment (Fifth Section), 3 October 2013 (rendered final on 3 January 2014).When driving at night on a country road, Mr Douet had made a sudden about-turn upon seeing a police car, which then gave chase. In assessing the legality of the force used against Mr Douet, the Court noted that the baton had been used when Mr Douet was already under arrest and had been cuffed on one of his hands, while another gendarme struck him several times while pushing his knee down onto Mr Douet’s
back. Injuries included a fracture of Douet’s elbow and bruising on one arm, as well as an oedema on his elbow and bruises on his back.
In the adjudication of the case before the Riom appellate court, it had been held that the applicant had only shown passive resistance, an element to which the European Court
attached particular importance in reaching its decision.European Court of Human Rights, Douet v. France, Judgment (Fifth Section), 3 October 2013 (rendered final on 3 January 2014), §§35–36.The court found a violation of Article 3 of the European Convention on Human Rights (the right to freedom from inhumane treatment) on the basis that France failed to prove that the force used against Mr Douet had been both necessary and proportionate.European Court of Human Rights, Douet v. France, Judgment (Fifth Section), 3 October 2013 (rendered final on 3 January 2014), §§38–39.The Court further observed that "it is normally for the Government to provide relevant evidence that the use of force was both proportionate and necessary".European Court of Human Rights, Douet v. France, Judgment (Fifth Section), 3 October 2013 (rendered final on 3 January 2014), §30 (author’s translation).
Isenc v. France
The duty to protect life encompasses a positive duty on the state to take reasonable measures to prevent a detainee from committing suicide. In the Isenc case, a chamber of the
European Court of Human Rights held that the French authorities had failed to comply with its positive obligation to protect the right to life with respect to an inmate who hung himself in prison. The case concerned the suicide of the applicant’s son twelve days after he was admitted to prison.European Court of Human Rights, Isenc v. France, Judgment (Fifth Section), 4 February 2016.
Mendy v. France
This 2018 decision concerned the police shooting of a mentally disturbed person who was threatening a man’s life. In May 2007, two police officers, L.L. and S.T., attempted to arrest L.M., who was chasing J.-P.H., threatening him with a knife. L.M. was shot dead by police officer S.T. The Court found that L.M.’s wildly erratic behaviour had indisputably posed an imminent threat to J.-P.H.’s life. L.M. had threatened and then pursued him, armed with a knife, refusing to obey police orders, ignoring warning shots and even stabbing police sergeant L.L., who was trying to stop him. He had injured L.L.’s hand, and then resumed his headlong pursuit of J.-P.H. after being hit by a car. The police officers had therefore been justified in considering that L.M. appeared to be out of control. Police officer S.T. had therefore acted in the sincere belief that J.-P.H.’s life was under threat and had genuinely believed that physical force was needed, which entitled him to use appropriate, potentially lethal means to ensure the defence of J.-P.H.’s life.
Police officer S.T. had fired two warning shots, neither of which had had any deterrent effect on L.M. Furthermore, when the officer had fired the next two shots, without taking aim, he had merely been attempting to hit the bulk of the body of the person whom he was trying to arrest. The fatal gunshot had been fired when the officer and the victim were five metres apart, but running fast, which had significantly reduced the accuracy of the police officer’s aim. Finally, L.M. had caught up to within four or five metres of J.-P.H. In view of all those facts, the police officer’s response had been absolutely necessary in the light of the serious immediate threat to J.-P.H.’s life.
Moreover, L.M.’s violent actions had not been attributable to any feeling of being threatened by the police officers’ actions. Indeed, his aggressive attitude had begun before their arrival on the scene and had been the reasons why a neighbour had called the police and why they had arrived so rapidly. Moreover, it was L.M.’s conduct which had led the police officers to use force and had led the Court to rule that that use of force had been justified and absolutely necessary in the light of the circumstances of the case.
A French police officer who shot dead a young black man in western France in early July, sparking four nights of rioting, was charged with manslaughter. According to a report by Agence France-Presse (AFP), the unrest "has again highlighted tensions in deprived urban areas of France, where local youths often complain about heavy-handed policing and brutality." The officer had initially claimed he acted in self-defence while trying to arrest the 22-year-old in the city of Nantes on 3 July 2018, but later told investigators he had fired his weapon by accident. "He recognises he made a statement that did not conform with the truth", his lawyer told AFP.