Administrative police (France)

Administrative police in France are French police tasked with preventing disturbances to the ordre public.[1][2] and ensuring the public peace and preventing crime. Ordre public or public peace in a society includes public tranquility, safety and well-being. Two types of ordre public exist:

  • Management that protects the general interest of society;
  • Protection of the most vulnerable, generally by a more powerful party, for example of a consumer or a non-professional from a professional, or of a tenant from a landlord. Similarly labour law also falls into this category.[3]

A norm of ordre public is an imperative that the parties cannot set aside, generally in the name of protecting the weaker party.

Administrative policing can fall under either local or national jurisdiction, but does not include searching for, or arresting, the perpetrator(s) of a particular offense.[4] For example the French Border Police and the traffic police[5] have certain powers to detain and ask for identification, but are not involved in criminal investigations.[4]

The goals of administrative police are distinct from those of the judicial police who, under Article 14 of the Code of Criminal Procedure can investigate and arrest people for prosecution and punishment.[4]

The separation of administrative and judicial policing functions dates from the 1795 Code of Offences and Penalties, and is still in force today. This functional distinction does not necessarily imply an organizational separation: a single organization may perform both types of policing: an example is the National Gendarmerie.

Overview

Administrative policing is an activity intended to assure the ordre public but does not include searching for, or arresting, the perpetrator of a given breach of the law.

This teleological definition focuses on the goal of administrative policing, and takes into account the following functional and organic definitions:

  • Administrative policing designates activity tied to public safety.
  • Administrative policing designates the agencies in which this activity is invested.

Concept of ordre public

Administrative policing is defined by its goal of public peace (ordre public) which according to Article L.2212-2 of the code général des collectivités territoriales assures "good order, safety, security, and public health". Safety speaks to a limit to disorder, security to limiting the risk of accidents, and public health to limiting the risk of illness.

Good order is a more imprecise concept which has allowed the scope of the administrative police to expand and take into account morality and the protection of individuals against themselves. Article L.2212-2 of the code général des collectivités territoriales mandates the municipal police,[6] but administrative policing is also exercised by those whose ordre public authority stems from the Minister of the Interior. Article 12 of the Declaration of the Rights of Man and Citizen of 1789 is a foundational text for that authority,

Initially, administrative judges only took immorality into account if it might provoke a significant disorder. Today they do take morality into account, notably in the case of cinema, if this is justified by local circumstances. (Conseil d'Etat, 18 December 1959, Société des films Lutetia[7])

Morality has also been monitored in terms of respect for preserving human dignity, since the Morsang-sur-Orge decision; (Conseil d'État, 27 October 1995), which concerned dwarf tossing.

The Conseil d'État can also take into account esthetic issues (2 August 1924), Leroux, 18 February 1972, Chambre syndicale des entreprises artisanales du bâtiment de la Haute-Garonne: the Conseil d'État overturned an order of the mayor of Toulouse that for esthetic reasons very precisely regulated the dimensions and shape of funerary monuments in the cemetery). But this decision is outdated, and currently put back in question by the law of 19 December 2008[8] which gave the mayor police power over the monuments under the supervision of the administrative judge.

The legality of administrative police actions to protect individuals against themselves (22 January 1982), Auto défense[9] and 9 July 2001, Préfet du Loiret), and protect a person mise en examen or charged with a crime. (TC 19 October 1998, veuve Laroche)[10]) or protected the location of a possible crime (TC 12 December 2005, Prefect of Champagne-Ardenne).

Administrative and judicial police

The judicial police are charged with noting an infraction and finding or arresting its authors. Its function is thus repressive, as opposed to the preventive nature of administrative policing.

The distinction is essential where jurisdiction is uncertain and may lie with first an administrative judge, then a judicial judge, as it for responsibility, which is more easily triggered by administrative policing activities.

Characteristics of administrative policing

Administrative policing manifests unilateral prescriptions. These administrative decisions may take the form of regulations (decrees, arrêtés, ...) or individual rulings (individual authorization, visa or use licence, permit, ID check, body searches, ...). Police powers cannot be delegated to an individual.

Administrative police power can be general or special. In the latter case it applies only to certain categories of person (foreigners), of places (railway stations, airports), or of activities (hunting, fishing, cinema).

The administration has a duty to exercise its police power, but refusing to do so is only illegal if this refusal results in a failure to meet its legal obligations to maintain the ordre public. In the same way, a refusal to take police action need not be explained. Police actions never create rights and therefore may always be withdrawn, since the administration only acts on its responsibility in cases of faute lourde.

Mixed operations

The distinction between administrative policing and judicial policingis nonetheless sometimes delicate. Indeed, it is often exercised by the same individuals (police, gendarmes) and an administrative police operation may transform into a judicial police operation. For example, police officers who carry out body searches ("frisking") at the entrance to a stadium do so as an exercise of their administrative police powers (prevention of violence), but if in so doing they find narcotics, any subsequent arrest would be a judicial police operation (acting on an infraction). Inversely, a judicial police operation may transform into an administrative police operation. For example towing and impounding a vehicle (a judiciary police operation) but once the vehicle was impounded, an administrative police operation.

Jurisprudence concerning the distinction between types of policing system

In 1951, with the consorts Baud judgement,[11][12] the Conseil d'État clarified the criterion of the "finality" of the operation. This criterion was taken back up in that same year by the Tribunal des conflits in the Dame Noualek judgement.[13] and by the Court of cassation in the Giry decision[14]

Holders of police power

Police power is shared among several holders.

National level

The Prime minister as holder of the general regulatory power (Article 21 of the Constitution of 4 October 1958) exercises police power at the national level .[15]

The special authorities of the police are different: the Minister of Culture is charged with policing cinema; thele Minister of the Interior with policing foreigners.

Zone level

The préfet de zone de défense et de sécurité disposes of both general and special powers.[16]

Departmental level

The president of the Conseil départemental has been a police authority since the loi du 2 mars 1982,[17] in the area of traffic circulation on departmental roads outside of municipalities.

Le police prefect is the police authority at the departmental level for traffic on highways (routes nationales) outside of municipalities but especially for the many special police forces (hunting, fishing, environment, sanitation, and through control of municipal police).

The power of the prefect also extends to continental waters.[18]

Commune level

The mayor exercises police power on the level of the commune.

In communes with more than 20,000 inhabitants, however, as well as of certain smaller communes, police personnel fall under the state's French Civil Service even though it executes the arrêtés of the mayor's policing. The prefect assures respect for the public peace.

In Paris, the mayor only has very limited powers in matters of policing: fairs and markets, and cleanliness of the public roadways.[19] The other police powers belong to the prefect of police.

See also

References
  1. Chambers 1896, p. 286.
  2. Donnelly 2013, p. 37.
  3. Forde, M. “The ‘Ordre Public’ Exception and Adjudicative Jurisdiction Conventions.” The International and Comparative Law Quarterly, vol. 29, no. 2/3, 1980, pp. 259–73. JSTOR. Accessed 14 Jan. 2023.
  4. Bell 2008, p. 129.
  5. Police administrative: Police de circulation: immatriculation des véhicules. In: Revue Judiciaire de l'Ouest, 1986-2. p. 253. DOI: https://doi.org/10.3406/juro.1986.1402, [www.persee.fr/doc/juro_0243-9069_1986_num_10_2_1402 via Persée]
  6. III. LA SÉCURITÉ A. UNE COMPÉTENCE LARGEMENT PARTAGÉE, Senate of France
  7. See the decision at Société des films Lutetia on Légifrance
  8. LOI n° 2008-1350 du 19 décembre 2008 relative à la législation funéraire. 19 December 2008. Retrieved 12 April 2020.
  9. Conseil d'Etat, 3 / 5 SSR, 22 January 1982, 20758 20966 21002 21030 21185 21194 21221, unpublished in the Lebon collection. Retrieved 12 April 2020.
  10. During the affaire Grégory, M. Laroche was released from detention, and killed. The State had not sufficiently protected persons who had a presumption of innocence.
  11. CE, 11 May 1951, the consorts Baud decision
  12. Conseil d’Etat, Section, 11 mai 1951, Consorts Baud, requête numéro 2542, rec. p. 265 Revue générale du droit, 'Conseil d’Etat, Section, 11 mai 1951, Consorts Baud, requête numéro 2542, rec. p. 265, ': Revue générale du droit on line, 1951, numéro 17175 (www.revuegeneraledudroit.eu/?p=17175)
  13. TC 7 June 1951, arrêt Dame Noualek
  14. Cassation civ. 23 November 1956
  15. Décision of the Conseil d'État, 8 August 1919, Labonne, which at the time concerned the president of the Republic.
  16. Rémi Capart. Les pouvoirs de police administrative du préfet de zone de défense et de sécurité, thèse Montpellier, 2015 [Administrative police powers of the préfet of a defense and security zone]. Montpellier.
  17. https://www.legifrance.gouv.fr/loda/id/JORFTEXT000000880039/ Loi n° 82-213 du 2 mars 1982 relative aux droits et libertés des communes, des départements et des régions], LégiFrance
  18. (CAA Nantes, 5 December 2006, Fédération française motonautique).
  19. See the decision of the Conseil d'État of 11 February 1998, City of Paris vs Association des artistes-peintres de la place du Tertre.

Works cited

Further reading
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