The juge des référés of the Conseil d’État has suspended a mayoral decree banning the wearing of conspicuous religious clothing on the beach.
By an ordinance of 24 August 2016, the Mayor of Cagnes-sur-mer banned access to beaches and swimming to those wearing outfits that show their religious affiliation conspicuously [de manière ostensible]. The Association for Defence of Human Rights – Collective against Islamophobia in France asked the judge of the tribunal administratif de Nice to suspend the execution of the decree: the request was rejected by an order of 12 September 2016. The Association then appealed to the Conseil d’État.
The juge des référés of the Conseil set aside the order of the tribunal administratif and suspended the ordinance of the Mayor of Cagnes-sur-mer. The police measures that the mayor of a coastal town enacted to regulate access to the beach and the practice of bathing had to be appropriate, necessary and proportionate only to the requirements of public order. It was not for the mayor to base those measures on other considerations; and restrictions on freedoms had to be justified by proven risks of harm to public order.
The juge des référés noted that no disturbance of public order had been raised in the present case, particularly during the hearing. He also felt that the fact that an altercation had occurred between a family, two members of which were wearing burkinis, and other beach users did not disclose the kind of definite risks to public order that would justify the ban imposed by the contested ordinance. The ordinance was a serious and manifestly illegal infringement of fundamental freedoms such as the freedom to come and go, freedom of conscience and personal freedom.
This comes after the earlier decision by the tribunal administratif de Lille suspending the ban on burkinis imposed by the Mayor of Le Touquet (Pas-de-Calais) and the suspension by the urgent applications judge of the Conseil d’État of the ban imposed by the Mayor of Villeneuve-Loubet (Alpes-Maritimes). One might have assumed that every mairie in France would have got the message by now: evidently, one would be wrong.
Note: The procedure under Article L. 521-2 of the code de justice administrative allows the judge to order, within forty-eight hours, all measures necessary to safeguard a fundamental freedom against which an administration has committed a serious and manifestly illegal infringement. To obtain satisfaction, the applicant must demonstrate that there is an emergency that requires judicial intervention within forty-eight hours.
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