the Council of State rejects the request for suspension of the implementing decree

A gendarme uses a drone in Corsica, during confinement, March 21, 2020.

The Council of State rejected, Wednesday, May 24, the appeal filed by the ociation for the Defense of Constitutional Freedoms (Adelico) and an individual against the decree authorizing, since April 19, the use of drones by the gendarmes, police and customs during law enforcement operations.

decision of the highest instance of administrative justice was taken in the context of summary proceedings, Adelico denouncing a serious and immediate risk of invasion of privacy, the protection of personal data and the freedom to come and go and demonstrate people filmed by the cameras on board the aircraft. The Council of State refuted his arguments but intends to rule a second time on the merits, outside this emergency procedure, ” in the coming months “.

The judges rejected all of the arguments put forward by the applicants, considering that“there does not exist[ait] no serious doubt about the legality of this decree”. The absence of publication of the doctrines for the use of drones in the implementing decree, denounced by the ociation, was notably not retained: “The law did not require that these details, of an operational rather than legal nature, be included in the decree itself”, considers administrative justice in a press release accompanying the decision. However, it asks that these doctrines, which must precisely describe the cases of use and procedure for the use of on-board cameras, the methods of capturing and processing images, be transmitted to the CNIL in the event of an inspection.

The Council of State also recalls that prefectural authorizations should only be granted“on the condition that no other means makes it possible to achieve the purpose pursued” and within the restrictions imposed by the decree – in particular the limitation of the time and scope of use, as well as access to the images by authorized agents and information of the public of a recording in progress. Finally, the judges recall that the publication of decrees authorizing the use of drones must be published sufficiently early before their deployment to allow the filing of appeals before the administrative courts.

More than 50 uses by different prefectures

Three years after their appearance in the public space during the spring 2020 confinement, the drones used by the authorities to film law enforcement operations had returned to Paris on the occasion of the demonstrations of 1er-May. This was one of the first authorizations issued within the legal framework defined by the new decree. Since its publication, a census carried out by The world reports more than fifty uses by different prefectures in France, for very diverse operations: demonstrations, fight against urban rodeos, fight against delinquency in Mayotte, against drug trafficking in Marseille…

Read also: Article reserved for our subscribers Drones, a sensitive issue in law enforcement

The text is the culmination of three years of legal and political controversy. Prohibited by the Council of State during the health crisis due to a lack of supervision, the practice had been reintroduced by the vote of the global security law in 2021, but the provisions had been censored by the Constitutional Council. A revised version appeared in the law relating to criminal responsibility and internal security, ped a few months later.

The new decree, which resulted from it, authorizes the use of drones by the police, gendarmes, customs officers or soldiers, in certain cases for “the prevention of attacks on the safety of persons and property in particularly exposed places”For “gathering security” on public roads, as well as “support” agents ” on the ground “ for the purpose of maintaining or restoring public order. “These are administrative police purposes: it is a question of preventing, securing and helping, not of collecting evidence or investigating as in legal proceedings”says the Ministry of the Interior in a text presenting the new measures.

The law provides that images captured by on-board cameras (which do not record sound) can be transmitted live to command centers. According to the decree, they will be kept for a maximum of seven days by the authorities, then deleted if they are not investigated.

In the first forty-eight hours after their registration, further specifies the regulations, the agents will have to delete “the images of the interior of the residences and, in a specific way, their entries when the interruption of the recording could not take place taking into account the circumstances of the intervention”. The unlimited capture of public and private spaces by drones is one of the sensitive points of the evolution of practices, current video surveillance systems not being authorized to film windows or doors of housing.

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