2009-03-18

NATO-ZU/Shut down NATO: Possible legal consequences of our action

An additional possibility is a charge under CP 431-9, "the organisation of a demonstration on the public highway without filing a prior notice pursuant to the conditions laid down by law" [3]. This carries a potential punishment of six months in prison and a fine of 7,500€.

This is a potential charge for anyone viewed to be an "organiser" of the blockade. In practice, French activists are not aware of anyone having been charged or sentenced under this article. Put the police might use it to put pressure on people, or to scare people.

Also the traffic law provides charges which can possibly be applied to our action. CR 412-1 (CR = Code de la Route or Highway Code) [4] about [the placement of objects on a public road which form an obstace to cars or] using whatever means to obstruct traffic allows for a punishment of up to 2 years imprisonment and a fine of 4500€.

While a crowd of people cannot be seen as placing an object on a road, it can be seen as a means to obstruct traffic. However, as far as French activists are aware, this article has so far not been used against blockades. The more likely charge is CP 431-4.

Possibly relevant are other charges which carry a lower punishment, but which provide an easier legal procedure. This would make it more convenient for these to be used. These charges can be:

* Code Penal CP R644-2: leaving objects which obstruct traffic on the public road, which can be punished with a fine [5]
* Code de la Route CR R412-51: placing an object or dispositive on the public road which obstructs traffic and refusing to obey the order of the police to remove this object or dispositive. This can lead to a fine. [6]

In both cases it is a contravention of the 4th class, which means a maximum fine of 750€ is possible.

According to French activists, human beings cannot be seen as objects or 'dispositives', while lock-ons can. However, while these charges might allow for a simpler procedure, we are not aware of them having been used in the past. They are included here just as a possibility.
Legal procedure

A good explanation of French criminal procedure you find in french on http://www.guidejuridique.net/. More extensive legal guides in other languages are in production. Here we just give a basic overview of the procedures.

In France the police always has the right, even if you are not doing anything wrong, to hold you for up to 4 hours for what is normally an ID check. All what you have to answer is what is on your ID or passport. The advice is to not say more than what's on it (Code of Criminal Procedure CPP 78-3). The French for '”No comment” is “Je n'ai rien à déclarer”. If after these 4 hours you are not notified if being detained (garde à vue), you may just leave.

The police has then the possibility keep you under arrest for 24 hours for the investigation (called garde-à-vue) – however, the first 4 hours are included in this 24 hours (CPP 78-4). This period can be prolonged by another 24 hours.

In this period you can see a lawyer 'commis d'office', that means lawyers which are standby and are provided by the judicial authorities. Several of these lawyers are part of the legal team. You can also ask for an interpreter or a doctor.

Following this garde-à-vue, apart from being released without further prosecution several possibilities of prosecution exist:

* you are released with a summons to a court case on a later date. Such a summons can be sent to you as well later.
* you are brought before the district prosecutor (procureur). S/he can decide to bring you before the court. In this case you have a court case in 10 days until up to 2 months. In this case pre-trial detention is not possible (CPP 394), but bail conditions might be imposed.
The prosecutor can also decide to bring you before court through the fast procedure (comparution immédiate). In this case you can have a trial on the same day (CPP 395) and until up to 3 working days later. In the latter case, pre-trial detention has to be approved by a judge. For an action on Saturday 4 April that means the latest Wednesday 8 April). You can only be tried immediately with your stated consent (given when a lawyer is present). If you do not consent to be tried immediately, the trial takes place within 2 months. The big risk in this procedure is that you can be put in pre-trial detention and that penalties are usally harsher than after a well defended case with the time to prepare it.
* the prosecutor can also decide that further investigation is necessary and send you to a judge of investigation. In this case no fast procedure is possible anymore. This case is rather unprobable for the envisaged action.

A prosecution is also possible for the 'contraventions' or the minor category of crimes. In this case a simplified procedure is possible which excludes the contradictory debate. The 'juge de proximité' or 'juge de tribunal de police' decides to give you a fine based on the police reports and without hearing you first. You will receive an announcement of this decision and an order to pay. You then have 30 days to file opposition to the decision, in which case you will have to appear later for a trial.

As this is a much lighter procedure, it has a higher probability to be applied. But this does not exclude the possibility for heavier prosecutions.

In the worst-case scenario (comparution immédiate) you will have to give guarantees that you will appear in order to avoid pre-trial detention. This means proving that you are a reliable person who has a stable position in society For this it is important to be able to prove you have a fixed address and a stable occupation (job contract, student card, ...). Although this is the worst-case scenario and not very probable to happen, it is good to be prepared and have such proofs at hand for the lawyer.
Legal justification

Penal Code CP 122-7 states: “A person is not criminally liable if confronted with a present or imminent danger to himself, another person or property, he performs an act necessary to ensure the safety of the person or property, except where the means used are disproportionate to the seriousness of the threat.”

It can be argued that the imminent danger is the preparation of war crimes and breaches of international law at the NATO summit, which we aimed to prevent through our blockades. However, it is unlikely that a court will follow our argument.
The position of foreigners

If you are sentenced to a prison sentence, which is not a suspended sentence, than such a sentence is usually served in your own county (your country of residence). This is based on a treaty of the transfer of prisoners to serve their sentence in their home country.
The limitation period (until when you can be charged or a sentence can be enforced) depends on the article you have been sentenced under:

* Petty Offence (contravention) (CR R412-51, CP R644-2): 3 years according to CP 133-4
* Misdemeanor (délit) (CP 431-4 / CP 431-9 / CR L412-1): 5 years according to CP 133-3

Generally, as a non-French citizen, an interdiction to the territory is only possible when participation in an unlawful assembly is armed, so not in our case (CP 431-7, 431-8, 431-11, 431-12).

There also exists the possibility to deport people for public order reasons (this in an exception to the EU law on freedom of movement for workers/services/...). This is a purely administrative act not connected with criminal law. In itself it does not prevent you from later entering France again.
We don't know if these measures have been used in France. See the text of the legal team for more information.
French police

The French police might act differently from what you are used to from your own country. French police is known to often use tear gas to disperse crowds, and to easily use violence against demonstrations. This is something we need to take into account when planning our tactics.

It is important to avoid anything which can be percieved by the police as a threat. This means that some tactics, which might have worked well in Germany in the past, are likely to lead to a violent response from the French police, possibly involing the use of tear gas and truncheons.

As NATO-ZU, we aim to communicate to the police in advance the nonviolent character of our action. We will have people responsible for police liaison in the action.

As a general advice:

* avoid running
* avoid confronting police lines in a big group
* sit down or lie down when confronted with police, possible more spread out than usual. However, don't do so when police is alreafy charging at you.
* actively police liaison needs to seek contact with police units once any kind of blockade has been established, or a confrontation is likely.

None of this is a guarantee that the police will not use tear gas or violence against us, but these are aimed at minimising the likelyhood of a violent response from the police.

Please look out for updates on NATO-ZUs contact with the police on our website.
Notes and original legal documents

The French penal code is available at:
- Francais: http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT00000607071...
- Deutsch: http://archiv.jura.uni-saarland.de/BIJUS/codepenal/index.html (nicht unbedingt 100% aktuell)
- English: http://195.83.177.9/code/liste.phtml?lang=uk&c=33
- Espanol: http://195.83.177.9/code/liste.phtml?lang=esp&c=56

[1] CP 431-3 reads:
"An unlawful assembly is any gathering of persons on the public highway or in any place open to the public where it is liable to breach the public peace.
An unlawful assembly may be dispersed by the forces of public order after two orders to disperse have been issued without success by the prefect, the sub-prefect, the mayor or one of his deputies, any judicial police officer in charge of public safety, or any other judicial police officer, bearing the insignia of their office.
These orders are made in a manner appropriate to inform the persons taking part in the unlawful assembly of the obligation to disperse without delay; the manner shall be specified by a Decree of the Conseil d'Etat, which shall also determine the insignia to be borne by the persons referred to under the previous paragraph.
However, the representatives of the forces of order called to disperse an unlawful assembly may directly resort to the use of force where acts of violence are carried out against themselves or if they are not in a position otherwise to protect the place they are occupying."

[2] CP 431-4
"Wilful participation in an unlawful assembly, after the orders have been issued, committed by a person not carrying a weapon is punished by one year's imprisonment and a fine of €15,000."

Note that the French penal code always states maximum sentences, although the wording might suggest that the courts have no choice.

[3] CP 431-9
The following offences are punished by six months' imprisonment and a fine of €7,500:
1° the organisation of a demonstration on the public highway without filing a prior notice pursuant to the conditions laid down by law;
2° the organisation of a demonstration on the public highway which has been prohibited pursuant to the conditions laid down by the law;
3° drawing up an inaccurate or incomplete notice liable to mislead about the objective or conditions of the proposed demonstration.

[4] Code de la Route: CR L412-1
Le fait, en vue d'entraver ou de gêner la circulation, de placer ou de tenter de placer, sur une voie ouverte à la circulation publique, un objet faisant obstacle au passage des véhicules ou d'employer, ou de tenter d'employer un moyen quelconque pour y mettre obstacle, est puni de deux ans d'emprisonnement et de 4 500 euros d'amende.
Toute personne coupable de l'une des infractions prévues au présent article encourt également la peine complémentaire de suspension, pour une durée de trois ans au plus, du permis de conduire, cette suspension pouvant être limitée à la conduite en dehors de l'activité professionnelle.
Lorsqu'un délit prévu au présent article est commis à l'aide d'un véhicule, l'immobilisation et la mise en fourrière peuvent être prescrites dans les conditions prévues aux articles L. 325-1 à L. 325-3.
Les délits prévus au présent article donnent lieu de plein droit à la réduction de la moitié du nombre maximal de points du permis de conduire.

[5] CP R644-2
Le fait d'embarrasser la voie publique en y déposant ou y laissant sans nécessité des matériaux ou objets quelconques qui entravent ou diminuent la liberté ou la sûreté de passage est puni de l'amende prévue pour les contraventions de la 4e classe.
Les personnes coupables de la contravention prévue au présent article encourent également la peine complémentaire de confiscation de la chose qui a servi ou était destinée à commettre l'infraction ou de la chose qui en est le produit.

[6] CR R412-51
Le fait, pour toute personne ayant placé sur une voie ouverte à la circulation publique ou à ses abords immédiats un objet ou un dispositif de nature à apporter un trouble à la circulation, de ne pas obtempérer aux injonctions adressées, en vue de l'enlèvement dudit objet ou dispositif, par un des agents habilités à constater les contraventions en matière de circulation routière, est puni de l'amende prévue pour les contraventions de la quatrième classe.
Lorsque la contravention prévue au présent article est commise à l'aide d'un véhicule, la mise en fourrière peut être prescrite dans les conditions prévues aux articles L. 325-1 à L. 325-3.

Source: http://wri-irg.org/node/6986