Following the Paris attacks of November 2015, president Hollande declared a state of emergency in France for twelve days. It was extended for three months until the 26th of February 2016 by the law no 2015-1501 of 20 November 2015 which, with no surprise, was adopted almost unanimously (only 12 negative votes and one abstention). According to the law no 55-385 of 3 April 1955 the state of emergency can be declared where there is an imminent danger to the public order, or in relation to events which amount, by their nature and severity, to a public disaster. It is clear that this exceptional regime was declared in order to specifically address the terrorist attacks by religious fundamentalists. As in many other Union member states, France witnesses a growing concern for internal security. However, this concern may stifle the equally important concern for justice and freedom that characterizes any state based on the rule of law. It further poses the question of the actual efficiency of legislation on security in the fight against terrorists.
The state of emergency grants the local state’s representatives (préfets) important powers that encroach upon individuals’ freedom and rights. In particular, state representatives can place any person whose actions prove dangerous for security and public order under house arrest without prior judicial authorization. Moreover, this person can be obliged to surrender his or her passport or ID card. The law adopted in November 2015 has increased the powers of the administrative authorities. Article 6 of the law of 1955 has been amended to make it easier to place a person under house arrest as soon as there are serious grounds for believing that this person constitutes a threat to security and public order. What should be understood as serious grounds is completely unclear and left to the public authorities’ discretion. Although it has no binding force, it should be mentioned that the impact assessment (étude d’impact available here) of the legislative proposal provides that anyone who has attracted the attention of the police or the intelligence service because of his or her behavior, his or her acquaintance with the ‘wrong crowd,’ his or her statements (which do not even have to be made public), or projects can be subject to house arrest. Public authorities are actually given a wide margin of discretion to seriously restrict the freedom and rights of citizens, without any procedural safeguards or a priori control from an independent judicial authority. Decisions implementing the state of emergency can only be challenged ex post before an administrative court. Under normal circumstances, a citizen (setting aside illegally staying third country nationals), can be subject to house arrest if he or she has been officially charged with a criminal offence by an investigative judge.
The current ‘legislative inflation’ of security transferring powers from the judiciary to the executive is worrisome. Declaring a state of emergency is an exception, and should not become the rule. In this regard, it is remarkable that President Hollande has declared that the state of emergency is likely to be extended again. Moreover, France is on the brink of adopting a draft constitutional law, proposed by the socialist government, allowing on stripping all dual citizens (thus also bi-nationals born French) of their French nationality in terrorism cases. It is far from certain that this legislative machinery will affect future decisions made by terrorists.
One can argue that an extraordinary situation requires extraordinary measures in order to respond quickly to the terrorist threat and to ease the social tensions, which are the result of the attack on citizens’ lives and core values. It is, therefore, not surprising that certain human rights treaties provide a system of derogations allowing states parties to take measures derogating from their obligations under the treaty in exceptional circumstances. Nevertheless, the validity of exceptional measures is subject to certain requirements such as limitations in time and space, legality, necessity, and proportionality. In particular, article 15 of the European Convention on Human Rights (ECHR) permits derogation (with the exception of non-derogable rights guaranteed by article 2, 3, 4-1 and 7) in time of war or other public emergency threatening the life of the nation to the extent strictly required by the exigencies of the situation.
In this respect, French higher courts have already assessed certain aspects of the state of emergency’s legality. Following its application in 1984 in New Caledonia, the constitutional court decided that the law of 3 April 1955 was not contrary to the Constitution. The council of state also decided in 2005 that the decrees ordering the state of emergency were valid and did not infringe article 15 ECHR. According to a recent and rather laconic (only four pages) advisory opinion of the council of state, the new powers granted by the law of 20 November 2015 were considered justified and proportionate considering the nature of the terrorist attacks and the persistence of the threats.
Reports of abuses, however, were soon calling again into question the extent to which administrative authorities can take measures that are as coercive as house arrests. During the UN climate summit, which took place in Paris from 25 November until 11 December 2015, several environmental activists were placed under house arrest until the 12th of December and were obliged to report three times a day to the police station based on article 6 of the law on the state of emergency. This measure was taken following ‘information sheets’ gathered by the Ministry of Interior obtained without any procedural guarantees (at the time of writing this blog, however, a ruling of the council of state offers a glimpse of hope by suspending a house arrest on insufficient evidence). Although the authorities clearly infringed, in particular, the activists’ fundamental freedom to come and go safeguarded by article 5 ECHR and article 2 of Protocol 4 ECHR, neither the council of state nor the constitutional court considered this infringement to be a disproportionate interference with this freedom. It should, however, be mentioned that two Priority Preliminary rulings on the issue of constitutionality, regarding the respect of both freedom of expression and right to private life in the law of 1955, are currently pending before the constitutional court.
These judicial decisions are open to criticism. In particular the council of state, now ‘backed up’ by the constitutional court, considered that the infringement of the claimants’ freedom was justified under the state of emergency because the latter does not oblige the local authority to establish a direct link between on the one hand, the severe events justifying the state of emergency (i.e. the terrorists attacks in Paris on the 13th of November), and on the other hand, the nature of the threats to the security and public order grounding a particular house arrest. It must be noted that the 1955 law on the state of emergency has, according to the explanatory memorandum of the 2015 law, only been extended and the powers of public authorities increased in order to face the threats posed by the terrorist attacks in Paris. The French courts give thus a very broad interpretation of what should be necessary in order to justify the restriction of these citizens’ freedom (necessity being an essential condition for the legality of an administrative measure in French law). It is true that, except for the memorandum of the 2015 Law, the law itself does not impose a necessary link between the threats and the activity of the persons subject to coercive measures. Although it is not the place here to conduct a thorough analysis of the French legislation on the state of emergency, one may nonetheless wonder whether such an interpretation of the letter of the law is consistent with the case law of the European Court of Human Rights on article 15. In particular, where a derogating measure encroaches upon a fundamental right, such as the right to liberty, the European Court must be satisfied that it was a genuine response to the emergency situation, and that it was fully justified by the special circumstances of the emergency and that adequate safeguards were provided against abuse (see for example, case A and others v. UK application n. 3455/05 at 184).
The rationale behind legislation on security is not the necessity to protect citizen’s freedom and rights. This legislation is rather an emotional response to the shock of the attacks or, worse, a vulgar political calculation a year before presidential elections (the revoking of nationality being requested long ago by right-wing and extreme-right wing). On the path towards more security one should not forget the fundamental values that characterize our society such as the rule of law or the protection of procedural safeguards that should always be the rule and not the exception. Forgetting this would mean that terrorists have attained their goals, i.e. to destroy our values.