OSCE: protecting human rights while combating terrorism July 12,2016
State of emergency and rule of law
President Hollande declared the state of emergency on last November 14 a day after
coordinated teams of Islamic state terrorists killed 130 people and wounded more than 400 at
a concert hall and in cafés and restaurants in central Paris and outside a soccer stadium in
Saint-Denis.
The April 3 1955 Law sets that a state of emergency can be declared on all or part of the
national territory “either in the case of imminent danger resulting from serious breaches of
public order, or in the case of events which, by their nature and gravity, have the character of
a public disaster”; its article 2 lays down that a state of emergency is declared by an order of
the Council of Ministers and that its extension beyond twelve days may be authorised only by
the Parliament.
According to the Government, the 2015 state of emergency addresses the immediate danger
facing France posed by unprecedented and exceptionally high terrorist threat.
In accordance with the 1955 law, on November 20, the French Parliament extended the
state of emergency for 3 months till February 2016 ,then again on February 19 for three
months till May and , for a last time, on May 20 for two months till the end of the Eurosoccer cup and the tour de France( July) .
Unfortunately after the terrorist attack on July 14 in Nice, the Parliament renewed the state of
emergency up to January 2017.
1- Content of the state of emergency legislation:
The Minister of the Interior can:
-Place anyone whose actions prove dangerous for security and public order under house arrest
-12 hours per 24 hours- : 406 persons have been placed under house arrest from 14
November to 13 May , 69 currently ( 13 May) ( 27 for 2 weeks in connection with the
climatic change conference on December 2015) . Electronic tags may be used to track certain
individuals under house arrest who have been sentenced for committing acts of terrorism in
the past and have now served their sentences. The persons concerned would have to provide
their written consent.
-Take 'any measure' deemed necessary to block websites condoning terrorism or inciting acts
of terrorism.
-Any de facto associations or groups found to be involved in, facilitating or inciting the
commission of acts posing a serious threat to public order could be disbanded by decree in
the Council of Ministers.
In all French departments, prefects can:
-Authorize administrative search - in premise where there are serious reasons to think that it
is used by a person whose behavior constitutes a threat to public order and safety- in the
presence of a criminal investigation police officer; the prosecutor is informed without delay:
there were 3427 searches between November 14 to February 20 , only 122 between February
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20 to May 20. To date, 592 administrative searches have resulted in legal proceedings, 67
convictions have been secured by the courts and 56 individuals imprisoned. The last extension
from
May
20
has
not
maintained
administrative
searches.
No administrative search will target the premises used for the exercise of a parliamentary
mandate or the professional activity of lawyers, magistrates and journalists.
The Constitutional Council( February 19) has cancelled the possibility of copying electronic
data during the searches: the Council has regarded it as anti-constitutional for lacking legal
guarantees on the necessary conciliation between the protection of public order and the
right to the respect of privacy. It is only possible for the police during an administrative
search to consult the data and transcript it in writing.
-Restrict freedom of movements by imposing special defence and security zones- , and
prohibiting movement in certain places (curfew).Examples: a curfew during 3 nights in one
city in the suburb of Paris ; time-limit prohibition around the location of an administrative
search; prohibition of car circulation around industrial SEVESO facilities; access limitation –
ID control and car control or strict prohibitions- in certain areas : industrial facilities, around
prisons, synagogues, Christmas markets, in certain “départements”.
-Prohibit persons suspected of creating a disturbance of public order from residing in certain
parts of the French territory.
-Prohibit certain public meetings – 14 specific meetings in November, 4 in December, 1 in
January; 82 general prohibitions generally at the level of the territory of a “Département”; 70
prohibitions on the whole national territory on the 28,29 and 30 November during the climatic
change conference opening - and provisionally close certain meeting places( such as a
clandestine prayer room where radical speeches were delivered).
2-the issue of successive prolongations of the state of emergency legislation:
By definition, a state of emergency cannot be permanent and should address only immediate
danger .It would be problematic to maintain it after a certain period of time after the
November 2015 terrorist attacks. If the initial decision on state of emergency has got
unanimous support, its prolongation has been criticized :on January 19 2016 , the ligue des
droits de l’homme requested the Conseil d’Etat-the supreme administrative court- to order the
suspension of the implementation, in whole or in part, of the state of emergency. This
petition has been dismissed by a provisional judicial emergency order of the Conseil
d’Etat(January 27).
The judge recalled that the 1955 law provides that an end may be put to the state of
emergency by a Council of Ministers order before the expiry of the period of its application.
The judge states that the President of the Republic has wide discretion to make use of the
power which is acknowledged to him by the law to put an end to the state of emergency before
the expiry of the period of three months. But this power may not be interpreted, having
regard to the fact that a regime of exceptional powers has effects which, in a state of law, are
by their nature limited in time and in space, as escaping any control of its legality by the
courts.
According to the judge, the imminent danger resulting from serious violations of public order
which led, following terrorist attacks of an exceptional nature and gravity, to the declaration
of a state of emergency has not disappeared; even if they have been of lesser magnitude than
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those of 13 November, terrorist attacks have continued since this date both abroad and on
national territory and several attempted terrorist attacks directed at France have been
thwarted; France is engaged, alongside other countries, in external large-scale military
operations which aim to hit the bases from which the terrorist operations are prepared,
organised and financed; the measures that have been adopted, under the control of the
administrative court, whose responsibility it is to ensure that they are suitable, necessary and
proportionate to the purpose that they are pursuing, have allowed significant results to be
achieved; although their use is less than that in the days that followed the declaration of the
state of emergency, it follows- from the written evidence and the debates during the public
hearing- that by basing himself, in exercising his extended power of assessment, in order to
refrain from issuing an order ending the state of emergency, on the fact that their extension,
their renewal or the issuance of other measures contribute to preventing the imminent danger
to which the country is exposed, without it today being possible to distinguish between the
measures provided for by Articles 6 (house arrests), 8 ( possibility of temporary closure of
theatres, bars and gathering places, prohibition of gatherings that cause disorder) and 11(
administrative searches) , the President of the Republic has not seriously and clearly illegally
infringed a fundamental freedom that would justify the urgent applications judge making use
of its power to suspend and instruct the President of the Republic to put an end to all or part
of the state of emergency.
The state of emergency has been extended , in principle for the last time on May 20 for two
additional months. The Government referred to Euro soccer cup and the tour of France
security as justifications to the extension which is short of administrative searches
.Unfortunately ,the Parliament had to renew the state of emergency after the bloody attack in
Nice on July 14 (86 victims).
After the terrorist attacks, the Government proposed also a permanent scaled-up antiterrorist legislation which has been adopted by the Parliament before the end of the state of
emergency to improve the effectiveness of criminal procedural safeguards while securing a
long-term increase in the resources provided to administrative and judicial police forces.
3-A posteriori Administrative Justice controls:
The Venice Commission (cf its opinion on the draft constitutional law on protecting the
Nation CDL-AD(2016)006 , 14 March 2016) “does not see any reason to doubt that the
control exercised by the French administrative judge notably by means of interim measures
over emergency measures represent an effective remedy”.
3-1- On house arrests of persons in respect of which there are serious reasons to believe that
their behaviour constitutes a threat to security and public order:
There has been:
-190 interim orders claims against house arrest measures;
-14 judicial suspensions;
- 3 judicial cancellations .
Claims have had deterrent effect on the administration. In many cases, it has withdrawn
house arrest measures in order to avoid a suspension or a cancellation by administrative
justice. During the first 3 months of the state of emergency , 34% of the house arrests have
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ceased to be implemented either because of their suspension or cancellation by administrative
judges or because they have been repealed by the minister of interior before administrative
justice public hearings.
Example of Council of State suspensions:
-January 22: A person has been put under house arrest by the ministry of interior on the
ground that he was closed to radical Islamists, had been involved in illegal car traffic in
connection with radical Islamists and took photography’s of the residence of a Charlie
Hebdo journalist. During two public hearings, the person under house arrest explained to the
judge that he was speaking to his spouse with his mobile using loud-speakers while
wearing a moto-helmet , that his mother was living next to the building where the Charlie
hebdo journalist lived .According to the urgent applications judge, the ministry of interior
evidences on his belonging to radical groups were not detailed and there was no evidence of
a connection between car traffics and Islamist groups. Consequently the house arrest has
been suspended as a grave and illegal attempt to freedom of movements.
-April 15: A person under house arrest was presented as a radical Islamist stating violent
declarations against western countries military operations in Iraq and Syria, spoke in
mosques ,is in favour of Charia law in France, incited younger’s to join ISIS, was in contact
with French combatants in Syria and with jailed condemned individuals for their
involvement in terrorist operations , was involved in posting videos on biographies of
international jihad leaders .During one judicial search ,an Al-Qaida handbook for terrorists
,a Jordan passport revealing 5 travels in Syria between 2010 and 2014 ,jihadist propaganda
have been seized. After two public hearings and instruction measures , the urgent application
judges notes that the theological courses in question were not of proselyte nature, nor in
favour of Chariah and armed jihad; his video was on Hadith’s ; his travels between 2012
and 2014 were for Jordan and not Syria; consequently as there were material errors in the
ministry of interior house arrest measure reasoning’s, it has been suspended.
In other case, the Conseil d’Etat has dismissed a request to suspend November 25, 2015
house arrests against 7 persons who had the intention of acting against the holding and the
smooth functioning of the United Nations Conference on Climate Change. There were many
criticisms – including from a group of rapporteurs to the UN Human Rights Council1 against the use of state of emergency against ecologist militants.
The Conseil d’Etat rules that :
-although house arrest measures provides restrictions on the exercise of certain freedoms, in
particular the freedom of movement, it does not have, given its duration and its implementing
provisions, the nature of a measure involving the deprivation of liberty within the meaning of
Article 5 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms( deprivation of liberty would need the intervention of a court for having committed
an offense or when it is reasonably necessary to prevent his committing an offense) ;
- it does not appear that the possibility of issuing a house arrest measure , although the state
of emergency was declared due to an imminent danger resulting from serious breaches of
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“Ensuring adequate protection against abuse in the use of exceptional measures in the context of the fight
against terrorism is an international obligation of the French State,” the rapporteurs stated. In their
communication with the French authorities, the UN experts expressed alarm that environmental activists have
been under house arrest in connection with the state of emergency invoked following the November attacks.
“These measures do not seem to adjust to the fundamental principles of necessity and proportionality,” they said
highlighting the risks faced by fundamental freedoms in the fight against terrorism .
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public order, would clearly be incompatible with the provisions of Article 2 of Protocol No. 4
Additional to the European Convention for the Protection of Human Rights and Fundamental
Freedoms, according to which "(…) No restrictions shall be placed on the exercise of the
right of freedom of movement other than such as are (...) necessary in a democratic society in
the interests of national security or public safety for the maintenance of public order, for the
prevention of crime, for the protection of rights and freedoms of others”;
-it is the responsibility of the Conseil d’Etat to ensure that the administrative authority,
operating the necessary reconciliation between the respect for freedoms and the safeguard of
public order, has not seriously and clearly illegally infringed a fundamental freedom, either
in its assessment of the threat posed by the behaviour of the person concerned, given the
situation that led to the declaration of a state of emergency, or in determining the measures
applying to the house arrest;
- the evidence of the case shows, in particular documents entered into the case-file by the
Minister of the Interior, that Mr B... C...participated in violent actions in favour of a cause,
including that targeting the landfill of waste site of Bure of the National agency for the
management of radioactive waste, carried out during the night of 3 to 4 August 2015, in the
course of which the fence and the CCTV system of the site were damaged and incendiary
devices were thrown at the security forces who tried to oppose the intrusion onto the site; he
has taken an active part in preparing protest actions aimed at opposing the holding and the
smooth functioning of the United Nations Conference on Climate Change, in particular
violent actions directed against sites under the responsibility of the State or legal persons
which provide their support to this conference; no legislative provision nor any principle
precludes circumstances that are explained in the “white notes” produced by the Minister,
which were used in the adversarial contradictory debate and are not seriously disputed by the
applicant, from being taken into consideration by the administrative court;
- it also follows from the evidence of the case that the security forces remain mobilized to fight
against terrorist threats as well as to insure a secure holding and smooth functioning of the
United Nations Conference on Climate Change ;
- under these conditions, it does not appear , that by ordering Mr C...’s house arrest until the
end of the United Nations Conference on Climate Change( 15 days) on the grounds that there
were serious reasons to believe that his behaviour constitutes a threat to security and public
order , the Minister of the Interior, reconciling the various interests that are present,
seriously and clearly infringed the freedom of movement.
The ministry argument was that , given limited police human resources, violence in and
around COP 21 would divert police forces needed to track down terrorist networks.
http://www.gouvernement.fr/en/state-of-emergency-in-metropolitan-france-what-are-theconsequences
3-2-Administrative searches in places where there are serious reasons to believe that a person
behaviour constitutes a threat to security and public order: 11 searches were cancelled among 24
court rulings mainly on the basis of lack or insufficiency of motives or flagrant mistake of
appreciation ; 174 compensation claims have been filed. Upon request of several first instance
administrative tribunals, the Council of State has to adopt a ruling in July 2016 on the
following questions:
-the issue of the judicial control on administrative search decision motives ; the judicial control
of motives can take into account the constraints of emergency under a case by case control of the
judge;
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-the administrative judge control on the necessity and the proportionality of administrative
search taking into account the circumstances at the time of the search and information at the
disposal of the administration;
-on compensation: in case of an illegal administrative search, a compensation should be paid by
the administration; administrative search at night should be justified by emergency and
impossibility to search during day time; voluntary door opening shall be looked for before using
force ; recourse to physical force against a person has to be strictly necessary by his own
conduct otherwise his human dignity would be affected. Personal human dignity( article 3
European Human Rights Convention) shall be respected in particular in case where minor
children are present.
3-3- on other state of emergency measures:
Examples of administrative justice control:
-closure of a mosque :in Lagny-sur -Marne ( east of Paris):on the 1st of December the prefect has
closed this mosque for the duration of state of emergency. The Conseil d’Etat has rejected a
claim against this closure. If freedom of religion and freedom of assembly is a fundamental
liberty, this mosque was used by radicals speaking against Republican and western values,
against Christians and Shiites ,making apology of martyrdom and armed jihad; the mosque has
been used to recruit and indoctrinate combatants ( some of them moved to Iraq and Syria, some
of them died there). The mosque was managed by three associations that have been prohibited in
January 2016 by administration order as promoting hatred, discrimination and violence; some of
the mosque believers have been prohibited to leave France( serious reasons to believe that they
project to go abroad for participating to terrorist actions) or have been under house arrest; some
mosque believers have been arrested for their participation in terrorist activities.
4- Parliament control :
As the Government asked for a third prorogation of the state of emergency in May 2016, a
national assembly commission ( 17 May 2016) reported that there is no more added value in
maintaining administrative searches. It notes a decreased number of these measures: 3579
between 14 November and 13 May ,only 152 after 30 March. 558 weapons were seized to be
compared with 5300 weapons seized under normal judiciary searches. Only 6 administrative
searches have triggered anti-terrorist prosecutions to be compared with 96 purely judicial antiterrorist prosecutions. In addition, administrative searches could be nullified by judges as
penal procedure is more stringent on the regularity of the proceedings . At least on 3 cases,
administrative searches outcomes have been nullified by judicial review for prefect order
lack of precisions on the identity of the person and the location of the premise .Consequently,
the Government has not included administrative searches among state of emergency measures
extension after May 20.
This commission recalled that state of emergency provides to the administration competences
that belong normally to the judicial power( house arrest, search…) without the obligation to
respect detailed prescription of the penal proceeding code and extends administration powers
in its traditional competences( public meeting, demonstration prohibitions…) in the sense that
the minister of interior and prefects have wider discretion to make use of their power. The
commission notes that the administrative justice control is only a posteriori judicial review
even though the urgent application judge could intervene; even in a case where the
administrative measure would have been suspended or cancelled it could have, before this
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judicial suspension or cancellation , provoked all its effects( for example a prohibition of a
demonstration on a certain day) or part of its effects( house arrest).
The Parliament has got a parliamentary control on the implementation of the state of
emergency measures: minister has to report on individual prefects measures .It decided that
its commission reports would be published.
5- International human rights conventions and state of emergency:
-
on European convention on human rights:
On November 24, the French authorities have informed the Secretary General of the Council
of Europe on state of emergency measures taken following the large scale terrorist attacks in
Paris, on the basis of a long term threat in view of the indications provided by the intelligence
services and in the light of the international context ;the Government explained that its
measures
may involve a derogation from certain rights guaranteed by the European
Convention on Human Rights.
The derogation is foreseen by Article 15 of the European Convention on Human Rights in
times of public emergency threatening the life of a nation and has been used in the past by
other member states. According to Article 5, there can be no derogation from Article 2 (Right
to life), Article 3 (Prohibition of torture and inhumane or degrading treatment or punishment),
Article 4 para. 1 (prohibition of slavery), Article 7 (No punishment without law).
The European Convention on Human Rights will continue to apply. Where the Government
seeks to invoke Article 15 in order to derogate from the Convention in individual cases, the
Court will decide whether the application meets the criteria set out in the Convention.
In the past, 8 States parties to the European convention have relied on their right of derogation
( Albania, Armenia, France- suburban riots in 2005- , Georgia ,Greece ,Ireland-1957 in
connexion with IRA activities-, Turkey and the UK).
On ECHR case law:
An exceptional situation of crisis or emergency which affects the whole population and
constitutes a threat to the organized life of the community of which the state is composed can
justify the right of derogation. For example:
- a steady and alarming increase in terrorist IRA activities( Lawless v Ireland 1 July 1961) ;
-legislative measures and administrative practices of the Greek military junta having taken
power had not been justified on the basis of article 15( Denmark, Norway , Sweden and the
Nederland v Greece 5 November 1969);
-existence of emergency was clear from the facts of the case (about extrajudicial powers to
arrest, detention and internment by the authorities of Northern Ireland - Ireland v the UK 18
January 1978) ; detention of two suspected members of the IRA in police custody not brought
promptly before a judge was justified by a public emergency threatening the life of the nation
( Brannigan and Mc Bride v UK 26 May 1993);
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- extent and particular effects of PKK terrorist activity in south-east Turkey had undoubtedly
created in the region a public emergency threatening the life of the nation; the court accepts a
wide margin of appreciation to the national authorities in principle better placed than the
international judge but the state doesn’t enjoy an unlimited discretion; it is for the court to rule
whether the state has not gone beyond the extent strictly required by the exigencies; in
exercising this European supervision, the court has to give appropriate weight to the nature of
the rights affected by the derogation and the circumstances leading to and the duration of the
emergency( Aksoy v Turkey 18 December 1996:however the court was not persuaded that the
exigencies of the situation necessitated the holding of the applicant for 14 days without access
to a judge or other judicial officer);
- the court accepted that, after September 11 2001 attacks against the USA, the UK created
an extended power permitting the detention of foreign nationals when the person’s presence in
the UK was a risk to national security. A state could not be expected to wait for disaster to
strike before taking measures to deal with it; weight had to be attached to the judgment of the
executive and Parliament, significant attention also had to be paid to the views of national
courts which are better placed to assess the evidence relating to the existence of an
emergency; on 19 February 2009, the house of Lords ruled that the detention scheme did not
rationally address the threat to security and was disproportionate as there was evidence that
UK nationals were also involved in terrorist networks linked to Al-Qaeda; on the ground of
discrimination, the house of Lords quashed the derogation order. Consequently , on 19
February 2009(A and others v. UK) , the court found that the UK had violated article 5
because the derogating measures had been disproportionate against foreign nationals(
discrimination).
According to the Venice Commission ‘s rule of law checklist( cf its opinion on the French
draft constitutional law on protecting the Nation CDL-AD(2016)006 , 14 March 2016), the
following questions must be raised when it analyses a state of emergency law: among them,
what are the circumstances and criteria required in order to trigger an exception? Are
derogations proportionate in duration, circumstance and scope? Is there a parliamentary and
judicial review of the existence and duration of an emergency situation and the scope of any
derogation?
-on the International Covenant on Civil and Political Rights (ICCPR):
France send on December 3 an application to the United Nations to obtain a derogation from
the covenant which contains similar protections of fundamental rights and freedoms. The
Convenant allows for such a temporary derogation: ‘In time of public emergency which
threatens the life of the nation’, as long as the existence of the emergency is ‘officially
proclaimed’.
France notes that the State of Emergency contravenes several articles of the ICCPR,
including: Article 9, which guarantees freedom from arbitrary detention and protection of the
rights to liberty and security; Article 12, which guarantees freedom of movement; and Article
17, forbidding “arbitrary or unlawful interference” with a person’s private life. “These kinds
of measures seemed necessary to prevent further terrorist attacks,” the French permanent
representative to the UN noted.
In order to conform to the Covenant, the French application cannot simply consist of a letter.
The task of judging the validity of the derogation request falls to the UN Human Rights
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Committee, the body responsible for monitoring implementation of the Covenant. The
committee has actually created several criteria – including a measure of proportionality with
the following core guideline: ‘the restoration of a state of normalcy where full respect for the
Covenant can again be secured must be the predominant objective of a State party derogating
from the Covenant’.
Last February a group of special rapporteurs of the special procedures of the UN Human
Rights Council warned that the current state of emergency in France impose excessive and
disproportionate restrictions on fundamental freedoms.
The independent experts stressed the lack of clarity and precision of several provisions of the
state of emergency and surveillance laws, related to the nature and scope of restrictions to the
legitimate exercise of right to freedom of expression, freedom of peaceful assembly and
association and the right to privacy.
This group of experts criticized as well a draft permanent anti-terrorist new legislation which
is out of our today presentation scope: “As France debates the strengthening of measures in
the fight against terrorism, and considers a reform of the criminal procedure, we call on the
authorities to revise the provisions and possible reforms adopted to that end, to ensure they
comply with international human rights law”.
In order to guarantee the rule of law and prevent arbitrary procedures, the experts recommend
the adoption of prior judicial controls over anti-terrorism measures and note that the state of
emergency law in force in France, which temporarily expands the powers of the executive in
the fight against terrorism, only allows judicial review a posteriori.
“While exceptional measures may be required under exceptional circumstances, this does not
relieve the authorities from demonstrating that these are applied solely for the purposes for
which they were prescribed, and are directly related to the specific objective that inspired
them,” they said, calling on the French Government not to extend the state of emergency
beyond 26 February 2016.
Concluding remarks: on the respect of Vienna 1989, Copenhagen 1990 and Moscow 1991
commitments on derogations from obligations during a state of emergency:
-any restriction on rights and freedoms must relate to one of the objectives of the
applicable law, be strictly proportionate to the aim of that law; does the house arrest
against the 7 ecologists match with this commitment? I could only refer again to the response
given by the Council of state :under these conditions, it does not appear , that by ordering Mr
C...’s house arrest until the end of the United Nations Conference on Climate Change on the
grounds that there were serious reasons to believe that his behaviour constitutes a threat to
security and public order , the Minister of the Interior, reconciling the various interests that
are present, seriously and clearly infringed the freedom of movement. Implicitly the judge
took into account the argument of the administration on the need to preserve police capacities
to the priorities on combating terrorism while France had to protect at the same time thousand
of foreign delegates including many heads of states and governments.
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- no derogations on torture; obvious.
-derogations must be taken in strict conformity with procedural requirements laid down
in the relevant international instruments: the French authorities follow strictly this
commitment in sending letters to the SG of the Council of Europe and to the UN.
-imposition of a state of emergency must be proclaimed officially; this commitment has
been respected.
-measures strictly required by the exigencies of the situation; obviously some individual
measures could have breached that requirement. Seized by claimants, administrative judges
nullified house arrests in particular. In normal time, police as any risky public policy can
make errors; regrettably , it is a matter of facts , probability of mistakes is higher in a state of
emergency period as police is acting under dramatic events pressure. In case of mistakes,
Government is accountable for and has to compensate the victims of its errors.
-measures will not discriminate solely on the grounds of race, colour, religion: there were
NGO criticisms on discriminations as a limited number of mosques have been closed
temporarily and some declared Muslims were put under house arrest and their premises
searched .As the authors of the terror attacks were connected with ISIS, police had serious
reasons to suspect violent Islamic militants. It is true that some measures have been nullified
and regarded by administrative judges seized by claimants- some of them were Muslims- as
grave and illegal attempts to freedom of movements. It doesn’t mean that the measures in
general were discriminative. As all French people, 99% of French Muslims -if not morehave been shocked by terrorist attacks. After Charlie Hebdo attacks on January 2015, Muslim
organization met at the Grand Mosque in Paris and “called upon citizens of the Muslim faith
to take part massively in the national march of Sunday, 11 January 2015 to affirm their desire
to live together in peace, in accordance with the values of the French Republic”.
--if recourse to force cannot be avoided its use must be reasonable and limited as far as
possible: in that regards, the judicial control will rule on accountability in the cases were
there have been police abuses. Victims of any abuses will be compensated under judicial
review. In addition to OSCE commitments , I would add that an independent administrative
justice should have the competence to quickly provisionally suspend illegal state of
emergency administrative acts.
-the state of emergency may be only proclaimed by a constitutional lawful body duly
empowered, subject to approval in the shortest possible time by the legislature or
control by the legislature: this is exactly the procedure which derives from the 1955 Law
on state of emergency as implemented on last November, in February and lastly in May.
--make available to its citizens information without delay about which measures have
been taken; the Government reported on a regular basis on the measures taken. But last May
a national assembly commission asks the minister to report on individual measures taken by
prefects , meaning that previously this information has not been completed.
-the state of emergency will be lifted as soon as possible and will not remain in force
longer than strictly required by the exigencies of the situation; at stake here is the issue of
successive extensions of the state of emergency. I think that the principle of precaution in
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connection with the Euro Cup and tour de France- that the French Government has refused to
cancel- is the main explanation of the May extension of the state of emergency .In any case,
the number of measures taken during the last extensions has decreased significantly since
February and the administrative searches are no longer authorized since May 20( but
reinstituted in July 21) .Actually the May extension could be regarded as a way to reassure the
general public , bringing psychological evidence that , in spite of large numbers of supporters
in and around soccer stadiums, “Fan-zones” and other crowdie places , its security would be
preserved. As you may know, the state of emergency has not prevented numerous trade
union demonstrations throughout the country –even sometimes with regrettable violent
attacks on window shops or public services- against a controversial labour bill to be adopted
by the Parliament, meaning that fundamental liberties have not been strained.
Today we can only hope that the organized life of the community of which France is
composed will not again be affected by an exceptional situation of crisis or emergency to
justify the right of limited derogations to some provisions of fundamental freedoms and
human rights under judicial control.http://www.gouvernement.fr/en/state-of-emergency-inmetropolitan-france-what-are-the-consequences
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