Yet the time may come when the authorities tire of their presence and try to find a legal justification for moving them on. In the light of this possibility, it is useful to look at the case of Cisse v France (9 April 2002).
Cisse v France is a case with many similarities to the current situation in London: in both cases, there is an occupation of Church land; and in both cases, the Church is expressly supportive of the occupation. But in Cisse v France the police came along to evict the occupiers and, what’s more, the European Court of Human Rights found that this did not violate the occupiers’ Freedom of Assembly. Given that Freedom of Assembly is the strongest justification in Human Rights terms for the tactics of the Occupy movement, it is vital to understand what happened in the Cisse case to avoid giving the authorities an excuse for eviction.
In Cisse v France, Cisse had been occupying a church along with several hundred others in protest against France’s immigration policies. As well as occupying the church, many members of the protest group also went on hunger strike to the point that they had to be taken to hospital. Once out of hospital, though, they went straight back on their hunger strike.
Their Occupation lasted for several weeks, near the end of which they had taken to placing obstructions in a nearby road. Eventually the police came in to evacuate them all. They allowed the Whites to go free and sent those who looked foreign to a detention centre.
Cisse took the case through the French legal system, but had no luck. She therefore took it further: all the way to the European Court of Human Rights in Strasbourg, and it is their judgement that is important. It tells us just what the Article 11 right to “Freedom of Assembly” means in our specific context.
The court found at first that the actions of the police had interfered with the protestors’ right to Freedom of Assembly. The French government had tried to argue that the Occupation could not be viewed as “peaceful” because they were occupying a place of worship and disrupting services. Moreover, they contended that the fact that the priest had authorised it meant nothing, as the priest was not the only one who could assess how much damage had been done to public order; that role fell to the police. The Court rejected these arguments.
Yet this was just the first step: Article 11 provides that the authorities may legitimately interfere with your right to Freedom of Assembly if that interference is governed by law, has a legitimate aim and is “necessary in a democratic society”.
In applying this analysis to the case of Cisse, the Court found that the evacuation had been governed by law (specifically, the Law of 9 December 1905) and that it had also pursued a legitimate aim: namely, to prevent disorder.
At the Occupation of the church, sanitary conditions had been terrible and the hunger strikers had been near death. The Occupiers had openly admitted to breaking French law (in the fact that many of them were illegal immigrants), and the installations they had put up outside the Church were blocking traffic. The Court therefore saw that the police’s evacuation of the Occupation had been justified by the aim of dealing with people who had broken French law.
The next question, and possibly the most important one, is whether the evacuation was necessary. According to the Court it had been “necessary in a democratic society”, but its reasons are quite illuminating.
Firstly, the Court’s central consideration was the health of the hunger strikers. It was perhaps only because of them that the evacuation was justified at all - otherwise, despite the installations blocking the road, despite the fact that the occupiers had openly declared themselves to be breaking French law, the Court would probably have judged that the evacuation violated Article 11.
The Court explicitly said that it didn’t think that “the fact that the applicant was an illegal immigrant sufficed to justify a breach of her right to freedom of assembly”. This implies that even if you are breaking the law, this will not justify an eviction of your Occupation by the authorities.
However, part of the Court’s explanation for this claim was the fact that the protestors had been occupying for two months before the police intervened, which implies a slightly different interpretation. It may be that the authorities would be justified in evicting your Occupation if you start breaking the law, but if you continue for some time and they tolerate it, then your law-breaking will not serve to legitimise a breaking-up of the whole Occupation.
It will probably justify some lesser measure, though. The requirement of necessity means that while the authorities are not justified in breaking up your occupation, they may be justified in placing restrictions upon it, or arresting certain members. Keep in mind that if people do start breaking the law at an Occupation or protest, the authorities will able to take action that is governed by law and which pursues a legitimate aim (and punishing law-breakers does count as a legitimate aim); their only restriction will be that they can do no more than is necessary to achieve that aim. So arresting one person may be justified; closing down the whole camp may not be.
The story of Cisse v France ends on a sad note: the case was lost, the immigrants sent home. But what lessons can we take from it? The most important one is that your right to Freedom of Assembly is a strong one, and the authorities can only evict you if it is absolutely necessary. In Cisse v France it was only “necessary” because not to evict them would have meant leaving people to starve to death and nothing short of that would have sufficed.
If you want to know more about your rights as a protestor, download my book "OCCUPY! An Activist's Guide to Protestors' Rights"
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