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No, "European law" does not authorize the state to "kill demonstrators" during a riot


20 Minutes, France

2 April 2019, Updated: 22 May 2019

A blog post shared among French "gilets jaunes" claims that "European law" authorizes states to "kill demonstrators" during a riot. This is a poor reading of a legal text signed by France among others.

Does "European law" authorize states to "kill demonstrators" during a riot? That is the allegation which became viral on Facebook groups close to France's "gilets jaunes" movement. The claim was posted on 17 February on the blog "Réveillez-vous" ("Wake Up"). Its author, calling herself Jeanne, claims that "in the situation of a riot or popular insurrection, European states are authorized to kill without any form of due process". Jeanne says that it is "clearly written in a European treaty", namely the European Convention on Human Rights, and cites article 2 of this text, devoted to the right to life.

Here is what the article in question contains:

  1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
  2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

The allegation was spread by around 50 Facebook groups, a significant number. The group Anonymous France, whose administrators have relayed misinformation in the past, gave much exposure to this blog post, publishing it 5 times between 18 February and 22 March.

"The European Convention on Human Rights says exactly the opposite of what this blog claims", according to Marie-Laure Basilien-Gainche, professor of public law at the French university Jean-Moulin Lyon-3. "Article 2 recognizes the right to life, which is a fundamental right. It is the first right that must be respected both by individuals and by states."

The article does not give authorities a right to shoot. The second section, which mentions recourse to force, "is not an authorization of this force but rather a set of requirements set out in order to prevent states from using arbitrary methods".

Authorities must protect the lives of citizens

The section only applies in "very special cases", the law professor told French newspaper 20 Minutes. "Use of force by the authorities is restricted by various requirements: it must be made within the framework of national law which must itself conform to legal instruments to protect individual rights; it must be used as a last resort; it must be necessary for the maintenance of order, appropriate to the situation, and proportionate".

This Article 2 "imposes both negative and positive obligations on states", says Marie-Laure Basilien-Gainche. National authorities, including both police and armed forces, must not threaten human life. In fact they must do everything in their power to prevent the life of an individual from being threatened either by third parties or by themselves", adds the specialist.

A document written at the end of the Second World War

Moreover, in its protocol 13 the European Convention on Human Rights confirms the abolition of the death penalty, adds Florence Chaltiel-Terral, professor of public law at the Grenoble branch of France's Sciences Po. This addition to the treaty "strengthens the right to life", she adds. "Nowhere is it written that the state can kill demonstrators." The article's second section invokes "self-defense", she says.

This treaty, adopted by the Council of Europe in 1950, must seen in its historical context. "Coming out of the Second World War and its atrocities, the idea was to write a document which would encourage states to respect fundamental rights", says Marie-Laure Basilien-Gainche.

Citizens' right to life can be enforced by the courts

The Council of Europe is not an EU institution, points out Sébastien Maillard, director of the Delors Institute. "It is an international institution, very different from the EU and comprising 47 member states including Turkey and Russia." As a member, France ratified the European Convention on Human Rights in 1974. That means that judgements by the European Court of Human Rights (ECHR), which interprets the convention, are binding in France. French citizens can refer cases to this court in order to have their rights respected. The convention is also used by French judges, points out Florence Chaltiel: "National judges take account of the ECHR's jurisprudence in their decisions". Far from granting anyone a license to kill, this document guarantees a right to life.

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