Legal summary

January 2023

Pagerie v. France - 24203/16

Judgment 19.1.2023 [Section V]

Article 2 of Protocol No. 4

Article 2 para. 1 of Protocol No. 4

Freedom of movement

Sufficient procedural safeguards attaching to thirteen-month preventive curfew imposed on radicalised Islamist during state of emergency following terrorist attacks: no violation

Facts – In the aftermath of the coordinated attacks perpetrated in and around Paris on the night of 13‑14 November 2015, which were claimed by ISIL and took the lives of 130 people, France declared a state of emergency. It was extended six times by statute before being lifted on 1 November 2017. During that time 18 attacks were committed or attempted in France, 5 of which resulted in loss of life.

The applicant, a radicalised Islamist, was put under curfew from 22 November 2015 to 11 June 2017, except for an interval of incarceration between 5 August 2016 and 18 January 2017. His placement under curfew was effected by a series of five orders made by the Minister of the Interior to prevent any possibility of his engaging in terrorism. The applicant filed a number of challenges to the orders, but all were rejected by the administrative courts. He was arrested and brought before a court for immediate trial on 11 June 2017 on charges of breaching his curfew and regularly accessing an online service that expressed support for or incited terrorism. He was remanded in custody.

Law – Article 2 of Protocol No. 4:

(a) Applicability – Article 2 of Protocol No. 4 applied solely to restrictions on freedom of movement. The series of curfew orders made in respect of the applicant had to be taken as a whole and consideration given to their combined effects.

First, the effect of the orders had been to prohibit the applicant from leaving the municipality where he lived, to confine him to his home between the hours of 8 p.m. and 6 a.m., to oblige him to report to a police station three times a day at specified times, to prohibit him from having contact with a specified person from 22 July 2016 to 5 August 2016 and, as of 18 January 2017, to require the surrender of his passport and all other identity documents. Breach of those terms had been an imprisonable offence for which the applicant had been incarcerated twice.

Second, the curfew had lasted for a total of about 13 months. Few curfew orders made on the same basis had remained in effect for so long. It had also involved an extended period of close monitoring by the police.

Third, the applicant had been at liberty to leave home during the day and had not been prevented from having a social life or maintaining relations with the outside world. Furthermore, he could have applied for permission to travel outside the area in which he had been required to live, but he had chosen not to do so.

The Court had previously applied the lens of Article 2 of Protocol No. 4 to comparable measures of equal or greater length ( Labita v. Italy [GC]; Vito Sante Santoro v. Italy ; M.S. v. Belgium ; and Timofeyev and Postupkin v. Russia ). All things considered, the curfew complained of thus fell to be regarded as a restriction on freedom of movement.

Conclusion: Article 2 of Protocol No. 4 applicable.

(b) Compatibility with Article 2 of Protocol No. 4 – In so far as the restriction on the applicant’s freedom of movement had not been specific to “particular areas”, it fell to be considered under the third paragraph of Article 2 of Protocol No. 4.

(i) Quality of the law – The interference had been in accordance with accessible law – section 6 of the Law of 3 April 1955 as interpreted by the Conseil d’État and the Constitutional Council. The principles of foreseeability of the law had been set out in the Court’s judgments in De Tommaso v. Italy [GC] and Rotaru v. the Republic of Moldova .

- Level of precision of concepts used – Section 6 of the Law of 3 April 1955 allowed the Minister of the Interior, by order made in the exercise of his or her public order powers, to impose a curfew on any person “in respect of whom there are substantial grounds to believe that his or her conduct poses a threat to public order and security”.

The level of precision required of domestic legislation depended to a considerable degree on the content of the law in question, the field it was designed to cover and the number and status of the persons to whom it was addressed.

The provisions in question were applicable only under a state of emergency, in areas where such a state was in effect. A state of emergency could be declared only in exceptional circumstances strictly determined by law. The legislation in issue, which carved out an exception to the general law, was therefore meant to apply only on an exceptional basis, within restrictions as to time and place. Furthermore, for a curfew order to be made, the law required an established risk in the form of a threat to public order and security. And where the curfew was to last for more than 12 months, the requisite threat had to be “particularly serious”.

“National security”, “public safety” and the maintenance of “public order” were specifically among the legitimate aims capable of justifying interference with the rights guaranteed by Article 2 of Protocol No. 4. In that regard it appeared unrealistic to require national legislators to lay down an exhaustive list of the forms of conduct capable of justifying the exercise of public order powers. Under no circumstances, however, could such special legislation run counter to the rule of law.

- Presence of safeguards against arbitrariness – French law confined the use of states of emergency and the curfew order regime within strict parameters. The Court attached particular weight to the fact that in interpreting the relevant special legislation the domestic courts had been concerned to afford appropriate protection for individuals against arbitrariness.

Curfew orders made under a state of emergency were subject to effective scrutiny by the courts, with procedural safeguards in place commensurate to the importance of the right concerned. They were open to legal challenge by an application for urgent interim relief on grounds of interference with a fundamental freedom ( référé-liberté ), which the Court had held to be an effective remedy, and, alongside that procedure, by a substantive claim for judicial review.

The provisions in issue, as interpreted by the domestic courts, laid down with sufficient clarity the scope and manner of exercise of the Minister of the Interior’s discretion and prescribed suitable safeguards against abuse and arbitrariness. They therefore afforded a foreseeable legal basis.

(ii) Legitimacy of the aims pursued – The aims of the interference in issue, which had been to protect national security and public safety and to maintain public order, had been legitimate.

(iii) Necessity of the interference complained of – The applicant had been subjected to a particularly high degree of interference for a total of more than 13 months, including a prohibition on leaving the municipality where he lived, a requirement to stay at home at night and an obligation to report to the police three times a day on pain of imprisonment.

The curfew order had initially been made on the basis of the applicant’s “religious radicalisation”, violent tendencies and criminal history and the fact that he had attempted to contact the leader of an Islamist organisation that was in favour of armed jihad and advocated the creation of a caliphate and the enforcement of Sharia in France.

The Court noted in that regard that such a restriction on freedom of movement could not be based solely on an individual’s beliefs or religious practice. Here, the Minister of the Interior had relied on a set of factors probative of a course of “conduct” giving rise to substantial grounds to believe that a threat was posed to public order and security, and had done so with a view to preventing terrorism, a matter as to which the Conseil d’État had been satisfied. The order had been made a few days after the attacks of 13 November 2015, when protecting the public and preventing further terrorism had without a doubt constituted a pressing need. The Court reiterated in this connection that the effectiveness of a preventive measure would frequently depend on the speed of its implementation. Moreover, the terms of the order, although stringent, had been suited to its purpose.

Accordingly, the measure in issue had been taken on grounds that had been relevant and sufficient in the context of an exceptionally serious and prolonged threat to national security, public safety and public order.

Subsequently, the applicant’s curfew and the conditions attached to it had been reviewed on a regular basis – eight times – by the Minister of the Interior. In deciding to extend it, the Minister had relied on an accumulated body of evidence that the risk of engagement in terrorism which the order had been meant to obviate still existed (the evidence had included the applicant’s public statements, conduct, association with jihadists, and jihadist propaganda videos found on his devices which promoted the use of lethal violence).

Furthermore, neither the residence requirement nor the other terms of the curfew order had prevented the applicant from having a social life and maintaining contact with the outside world. Likewise, the administrative authority had taken into account the applicant’s personal circumstances (he was unemployed and had no dependants) and alleged health problems, paying careful attention to his medical certificate. The applicant had never applied for permission to leave the area in which he was required to live, nor for a variation of the terms of the order on family or work grounds.

Accordingly, the duration of the measure and the continued imposition of the restrictions had been based on relevant and sufficient reasons.

What was more, all the administrative decisions taken in respect of the applicant had been subjected to scrutiny by the courts. The applicant had been able to put his arguments to the domestic courts, which had undertaken a careful review of the justification for the curfew order every time it had been extended.

The Court went on to look at whether sufficient procedural safeguards had attached to the presentation in evidence of notes blanches , which were documents made and used by the intelligence services to impart information to other authorities. They were not dated or signed, and any particulars that might serve to identify the authors or sources were redacted. The fact that notes blanches had been duly introduced in evidence had afforded the applicant notice of the basis for the curfew order made in respect of him and an opportunity to seek clarification in that regard. Yet much of that basis had gone unchallenged by the applicant, who had missed several hearings and had never requested the domestic courts to use their investigative powers. The domestic courts had found the reports to be sufficiently precise and detailed as to the facts. Such a finding could not be regarded as arbitrary.

Accordingly, the applicant had been afforded appropriate procedural safeguards.

In view of all the foregoing and having regard to the pressing need to prevent terrorism, the conduct of the applicant, the procedural safeguards afforded to him and the fact that there had been a periodic review as to the necessity of the curfew order, the Court concluded that the measure had not been disproportionate.

Conclusion: no violation (unanimously).

(See also Labita v. Italy [GC], 26772/95, 6 April 2000, Legal summary ; Vito Sante Santoro v. Italy , 36681/97, 1 July 2004, Legal summary ; M.S. v. Belgium , 50012/08 , 31 January 2012; De Tommaso v. Italy [GC], 43395/09, 23 February 2017, Legal summary ; Rotaru v. the Republic of Moldova , 26764/12 , 8 December 2020; Timofeyev and Postupkin v. Russia , 45431/14 and 22769/15, 19 January 2021, Legal summary )

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

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