France: handling the abuse of power in the coronavirus epidemic
The Conseil has sided with the authorities in most of its decisions since the start of the lockdown. But not on drones.
The French police have been banned from using drones to survey the public during the coronavirus epidemic. The ban will apply until there is a proper legal basis for their deployment or until they have been adapted so that individuals being filmed cannot be identified, the country’s highest court, the Conseil d’Etat, has decided.
France's Human Rights League announced the news on Monday 18 May saying it was a « real victory ». It took the case to the Conseil after its attempt to have the use banned was rejected by a lower court.
Some twenty drones have been used by the police in Paris over recent weeks under the control of the Prefecture of Police whose head, the Prefect Didier Lallement is a controversial « law and order » disciplinarian drafted in by President Emmanuel Macron early in 2019 to run the police in the capital during the Gilets jaunes protests. He has already had to formally apologise in public for having said early in April that those in hospital resuscitation wards were people who had disobeyed the rules of the lockdown.
The Conseil d’Etat is the highest administrative court in the French Republic with the responsibility of checking laws as they are proposed in the parliament, but also of hearing complaints from the public about abuses of power by public authorities. Several cases have been taken to it over the way the epidemic has been handled. Some it has already rejected, others await judgement.
Patrice Spinosi, the lawyer for the League, explained that though the decision technically applied only to Paris, it was enforceable across the whole of France.
Blurring the lines
Drones have increasingly been used by the French police. Roof top and other camera surveillance of demonstrations in the past has been put aside as the small drones, flying at around 80 to 100 metres above ground, are able to follow the movement of a demonstration, check on small groups and zoom in to identify individuals. Under existing French law, this works when the purpose, as declared by the police, is the maintenance of law and order or the catching of criminals. Surveying compliance with the rules of the lockdown is different as this does not involve the criminal law, rather administrative rules concerning good health practice.
There has already been considerable concern in human rights circles that the lines between these two have been dangerously blurred, particularly when it has come to police practice in the poor suburbs of the capital where France’s ethnic minorities are concentrated.
In the middle of April, the French authorities began to discuss the use of a mobile phone app, StopCovid, to trace contacts of those who were infected with SARS-Cov-2. This ran into opposition across the political spectrum in view of the dangers that the system might be used to collect considerable amounts of data on the private lives of members of the public. Having at first refused to accept the idea, the government then conceded that a vote in parliament would be needed before any such app is introduced, if at all, later in June.
The Conseil d’Etat has not required such a step in respect of the drones. It has however ordered the government to prepare a proper Ministerial Decree after full consultation with the statutory body responsible for data control, the CNIL, or to modify all the drone cameras so that no individual can be identified. If these steps are not taken, then the drones cannot be used.
According to the police evidence to the court, the cameras do not record the film but simply transmit it to the police control centre. The judges noted that the cameras were capable of identifying individuals and that there was a « risk » that the images might be used in a way not allowed under the existing law.
The decision does not appear to affect the use of powerful observational cameras carried on police helicopters that have also been flying over Paris in recent days.
The Conseil has sided with the authorities in most of its decisions since the start of the lockdown. In particular it has taken several decisions on the proposition that the lack of masks justifies certain restrictions on their use, an argument the government has publicly refused to adopt as it would put the focus on the destruction of France’s vast stocks of face masks in the past and its failure to prepare new production lines once the epidemic loomed in January.
The court turned down a complaint from the CGT trade union federation over the lack of proper protection in steel mills that were still working. The union wanted workers in the mills to be given twenty masks each a week but the court noted « that the strategy of the government was to give priority to the supply of available masks to the most exposed professions ».
When all the trade unions in the care home sector asked it late in March to require the distribution of protective gear to those living or working in the homes, the testing of all concerned for the virus and the provision of oxygen equipment for sick patients not needing to go to hospital, the court declared that « taking account of the means available to the State and the measures it has already taken » it did not consider « there was a level of fault amounting to a serious and manifestly illegal injury to a fundamental liberty requiring that it orders the measures asked for by the unions ».
Get our weekly email