Information Note on the Court’s case-law 254

August-September 2021

Domenjoud v. France (communicated case) - 34749/16 and 79607/17

Article 15

Placement under home curfew of far-left activists during the state of emergency declared following jihadist terror attacks: communicated

Article 2 of Protocol No. 4

Article 2 para. 1 of Protocol No. 4

Freedom of movement

Placement under home curfew of far-left activists during the state of emergency declared following jihadist terror attacks: communicated

In the aftermath of the deadly attacks in Paris on 13 November 2015, for which the so-called Islamic State claimed responsibility, a state of emergency was declared by decree. On 21 November an amended text of the 1955 State of Emergency Act entered into force, extending and strengthening the ministerial power to impose home curfew measures. On 24 November the Permanent Representative of France informed the Council of Europe’s Secretary General of this emergency legislation, in accordance with Article 15 of the Convention.

On 25 November 2015 the Minister of the Interior issued home curfew orders against each of the applicants – two brothers – with effect until 12 December 2015, obliging them to report three times a day to the police station and prohibiting them from leaving their homes at night (between 8 p.m. and 6 a.m.).

The reason for this decision related to the forthcoming Conference of the Parties to the United Nations Framework Convention on Climate Change (“COP21”) in Paris from 30 November to 11 December 2015, which was to be attended by many heads of State. The minister explained that the heavy mobilisation of the security forces to combat the terrorist threat should not be diverted to respond to the risk of public order disturbances linked to the very radical protests that were expected at this event.

On an individual level, the impugned orders accused the two brothers of taking a very active part in preparing incidents intended to disrupt the COP21 event, and of having already been involved in various protest actions as part of a radical far-left movement. It subsequently emerged that this assessment of the applicants’ dangerousness had been based on a “white note” from the domestic intelligence services.

They lodged urgent applications for the interim protection of a fundamental freedom, and the second applicant also sought the annulment of the measure, but were unsuccessful.

Before the Court the applicants complain that the measure depriving them of liberty was implemented without prior judicial scrutiny. At the very least, they argue, their home curfew lacked foreseeability – as the law had been aimed at any person in respect of whom there were “serious grounds for believing” that his or her conduct constituted a threat to public security and order – and the measure was not proportionate to the aims pursued.

They also complain that the procedure was unfair because of the weight given to the intelligence services’ “white notes”. In their view, these notes lacked tangible evidence, such that the possibility of challenging them in court would be illusory.

They question whether Article 15 of the Convention could be validly invoked in relation to their situations, since the accusations against them did not fall within the context of the specific threat (jihadist terrorism) that had prompted the declaration of the state of emergency.

Cases communicated under Articles 5 and 6 of the Convention and Article 2 of Protocol No. 4, with a question concerning the impact of Article 15 of the Convention.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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