Last modified: 2017-12-10 by ivan sache
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In spring 2003, the new law on internal security was promulgated, including an article on the desecration of the national symbols (anthem and flag); the Penal Code was amended accordingly. This was the first time that desecration of the flag was legally considered as an offence in France.
Law No. 2003-239 pour la sécurité intérieure - for the internal security -, promulgated on 18 March 2003 by President of the Republic Jacques Chirac, was published in the French official gazette No. 66, 19 March 2003.
Title V of the Law (Dispositions diverses - Miscellaneous provisions) includes:
Après l'article 433-5 du code pénal, il est inséré un article 433-5-1 ainsi rédigé :
"Art. 433-5-1. - Le fait, au cours d'une manifestation organisée ou réglementée par les autorités publiques, d'outrager publiquement l'hymne national ou le drapeau tricolore est puni de 7 500 euros d'amende.
Lorsqu'il est commis en réunion, cet outrage est puni de six mois d'emprisonnement et de 7 500 euros d'amende. Article 113.
After Article 433-5 of the Penal Code shall be added Article 433-5-1, written as follows:
"Art. 433-5-1 - The fact, during an event organized or controlled by public authorities, to publicly desecrate the national anthem or the Tricolor flag, shall be fined 7,500 euros.
When committed collectively, the desecration shall be punished with 6 months in jail and fined 7,500 euros.
Article 113 was originally tabled at the National Assembly as Bill No. 3236 by MP Rudy Salles on 16 July 2001. The bill was mostly motivated by two football matches during which the "Marseillaise" was booed by "supporters": France-Algeria, 18 November 2001, and the final of the French Cup Lorient-Bastia, 11 May 2002, prompting President Jacques Chirac to leave the presidential stand. This context explains the odd wording of the Law ("during an event organized or controlled by public authorities").
Article 433-5-1 was added to the Penal Code as prescribed by the Law, in Part IV ("Crimes and offences against the nation, the State and the
public peace, Title III ("Offences against the authority of the
State"), Chapter III ("Offences to the public administration committed
by individuals"), Section 4 ("Desecration").
As of today, Article 433-5-1 of the Penal Code was used only thrice in a flag case.
Ivan Sache, 30 May 2009
On 19 August 2005, a man was arrested by the police after having removed the national flag hoisted on the facade of the town hall of
Aurillac (Auvergne) and threw it down to the crowd gathered for a
local festival; the flag was subsequently burned to ashes.
The Court of Aurillac discharged the defendant, who had apologized and
refunded the municipal administration, but the public prosecutor's
office appealed. The Court of Appeal of Riom eventually fined the
defendant 300 euros.
[Actualités du droit blog, 19 April 2008]
On 24 February 2007, during a demonstration to support a member of the former terrorist group Action Directe, the photographer Laurent Belet removed the national flag hoisted over the entrance of the jailhouse of Lannemezan and replaced it with a red and black anarchist flag. Three vehicles and seven members of the Gendarmerie were subsequently commissioned to stop the perpetrator's motorbike. Since
Belet did not had the flag when arrested, he was kept in police
custody for 48 hours and eventually prosecuted for "collective flag
theft". The court of Tarbes discharged him on 7 November 2007.
[Libération, 31 March 2007]
On 16 March 2010, three young members of the Basque autonomist movement Segi (legal in France but illegal in Spain) were sentenced by the Court of Bayonne to a
one-month deferred sentence and fined each 300 euros.
The three militants were judged for a "collective flag theft" commited on 11 November 2009 during the commemoration of the 1918 Armistice in the War Memorial of Ustaritz (Basque Country). Sued by the local association of war veterans, the three said at the court that they did not share the values represented by the flag but that their act was not premeditated.
[LE Télégramme, 16 March 2010]
These three cases have revealed the lack of consistency, not to say the pointlessness, of the law; jurists and policemen had warned it would be nearly impossible to implement. Jurists have pointed out that the sentence defendents could appeal to the European Court of Human Rights for a limitation of their freedom of expression. Moreover, the law is totally incoherent since only the French flag is protected; the defendents would not have been fined if they had burned a Chinese flag. The Law did not prevent the "Marseillaise" to be booed again in football stadiums, before the matches France-Morocco (16 November 2007) and France-Tunisia (14 October 2008). The "desecration" seems to have been well organized and is specific to football (nothing happened before the handball match France-Tunisia).
Ivan Sache, 8 April 2010
On 26 July 1999, MP Bernard Derosier submitted the following written question to the competent ministry:
Is it legally prescribed to hoist the Tricolor flag on the premises of a polling station?
The answer, published in the Official Gazette of the
National Assembly, is "No".
There is neither a law nor a regulation prescribing such an hoisting.
Ivan Sache, 13 April 2001
The Decree prescribing the police regulation of flag of merchant, fishing and yachting vessels (text) was issued on 19 August 1929 and modified by Decree on 24 November 1934 and by Decree No. 431, issued on 26 May 1967. Refering to the Law of 17 December 1926 on the Disciplinary and Penal Code of the Merchant Navy, and, especially, to Article 63 of this Code, the Decree states:
In ports and harbours, the captains of French merchant, fishing and yachting vessels shall hoist the national ensign:
a. On Sundays, public and official holidays
b. In any circumstance concerning water and port police or maritime police, upon request by Maritime Prefets or Navy Commanders in military ports, by the Administrator of Maritime Affairs in commercial ports, and by the French Consuls in the foreign ports.
On sea, the vessel captains shall hoist the national ensign:
a. When entering or leaving a port.
b. Upon any request by a French or foreign war vessel.
The national ensign shall be hoisted on stern or mizzen horn.
The shipowners may, if they find it acceptable, supplement the national ensign with a house flag or pennant.
Such flags or pennants may be used only after authorisation of the administrator of the Maritime Affairs of the port in which the vessel is registered.
The house flag or pennant shall be hoisted on mast head. It shall never be hoisted in places prescribed for the national ensign.
The national ensign shall always be hoisted when the house flag or pennant is hoisted.
French merchant vessels sailing within floating signal reach of a French war vessel, at sea or in a port or harbour, shall hoist their house flag and salute the war vessel using the national ensign.
The salute is executed by hoisting three times the national ensign.
Ivan Sache, 28 September 2000