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France: Council of State Rules a Law May Prohibit Something Without Providing a Criminal Sanction

(Dec. 16, 2019) The Conseil d’Etat (Council of State), France’s highest jurisdiction for matters of administrative law, ruled on October 24, 2019, that a law may prohibit a behavior without providing the particular remedy of a penal sanction. At the center of this case is a 2005 law, Loi n° 2005-158 du 23 février 2005 portant reconnaissance de la Nation et contribution nationale en faveur des Français rapatriés (Law No. 2005-158 of 23 February 2005 Regarding the Nation’s Gratitude and the National Contribution Toward Repatriated French Citizens), which prohibited “any insult or defamation committed against a person or group of persons because of their identity or perceived identity as Harki.” (Loi No. 2005-158 du 23 février 2005, art. 5.)  Harkis were indigenous Algerian soldiers who fought for the French forces against the National Liberation Front during Algeria’s war of independence. When Algeria gained independence in 1962, a number of Harkis escaped to France.

While the 2005 law prohibited insults or defamation against Harkis, this prohibition was not backed by any sanction. The advocacy group Générations Mémoire Harkis sued the French government on the theory that the state was liable, based on certain provisions of the European Convention on Human Rights and French constitutional law, for failing to provide a penal sanction for violating article 5 of the Law. After seeing their claim rejected by the Administrative Tribunal of Rouen in 2014, and then by the Administrative Court of Appeals of Douai in 2016, Générations Mémoire Harkis appealed to the Conseil d’Etat in 2017.

In its decision of October 24, 2019, the Conseil d’Etat confirmed the lower courts’ rejection of the plaintiffs’ claims. In doing so, the Conseil d’Etat found that neither international agreements to which France is a party nor French constitutional principles could be interpreted as creating a right for victims of the violation of the particular remedy of such a violation being subject to criminal penalty.

Updated December 20, 2019