Leiden Law Blog

France and the state of emergency: moving in the wrong direction

Posted on by Tom Bollemeijer and Friso van de Pol in Public Law , 3
France and the state of emergency: moving in the wrong direction

After the Paris attacks on November 13 2015 the French government struck back strongly, making full use of its legislative powers in order to gain ground in the fight against terrorism. Most notably, l’état d’urgence (the state of emergency) was declared. Now, 5 months later and with governmental calls for yet another prolongation of the state of emergency, it is time to make up the balance. What do these anti-terrorist measures entail exactly? And how have they influenced the daily life of the French?

The French anti-terrorist legislative initiatives taken after the most recent attacks encompass three main branches. The first and foremost measure is the implementation of the aforementioned state of emergency, which was declared the night after the November attacks. As explained in the previous blog on the subject, this state of emergency is based on a law dating from 1955. After its initial declaration it has been prolonged twice and it now lasts until May 26 2016. Additionally, the 1955 law has been amended to broaden the scope of police competences: the police can now search someone or place someone under house arrest without judicial intervention when ‘there are serious reasons to believe that his behaviour constitutes a threat to public order and security’. Only afterwards is the necessity of police actions assessed by judges.

The second branch consists of the government’s effort to revise the constitution, which also commenced not long after the Paris attacks. Two main amendments were proposed. The first was to provide a constitutional basis for the state of emergency. The second – more controversial – amendment would create the possibility to take away the French nationality from condemned terrorists who have dual nationality. Eventually, large-scale criticism aimed at the second measure caused President Hollande to completely renounce the revision of the constitution, including the constitutional embedment of the state of emergency.

Thirdly, realising it cannot prolong the state of emergency indefinitely, the French government has recently started to reform the criminal procedural law. The revision will give more freedom to French investigators and prosecutors when investigating terrorism-related crimes. Exemplary is the proposed measure to penalise smartphone manufacturers if they refuse to cooperate with authorities to hack a phone. Human rights defenders have described these far-reaching reforms as ‘basically inscribing the exceptional measures of l’état d’urgence into regular law’.

Now, how have these measures in practice affected the French? The day-to-day inconvenience for the average Frenchman caused by the state of emergency and accompanying measures is very limited. Although it is highly unlikely people will ever get used to the soldiers patrolling the streets in France’s bigger cities, the most tangible practical inconvenience is caused by security measures in public buildings. These include security guards who, often armed with metal detectors, protect France’s museums, libraries, shopping malls, governmental buildings and some universities. However, this kind of inconvenience is very limited. The relatively small impact of these measures on the daily life of the average Frenchman in combination with the great impact the 2015 terrorist attacks have had on French society might explain the size of the support for the state of emergency and related security measures. According to a poll conducted at the end of February, 79% of the French population was in favour of the prolongation of the state of emergency which was implemented at the time.

There is, however, another side to this coin. The reinforcement of police competences has led to a large amount of human rights violations, which have not received a lot of publicity. As of the 24 February 2016, the police had searched 3397 houses under state of emergency legislation. More than 400 house arrests had been imposed, of which around a hundred continue to be enforced. All these measures have resulted in a mere total of five terrorism related cases being filed (as of 24 February).

Both Human Rights Watch and Amnesty International strongly oppose the current practices, and find themselves backed by UN officials. The NGOs have published withering reports describing a climate in which vagueness and arbitrariness characterise governmental decision making. An accusation based on a mere suspicion is enough to receive months of house arrest, with dire consequences. The reports also contain touching experiences of victims of raids and house arrests – the latter often left unemployed because of their duties to report themselves multiple times a day. These victims stigmatically are mainly Muslims. This systematic targeting only further polarises an already highly polarised French society, driving Muslims and non-Muslims even further apart.

These practices constitute a grave breach of the rule of the law. The fact that aforementioned practices in general do not hold up to judicial standards is acknowledged by the recurring tendency to lift house arrest just before a case is to appear before a judge that examines the necessity of a house arrest. In addition, only very few compensation cases even ever make it into the courtroom. Victims who afterwards want to start a legal procedure against the French state often find themselves caught in a web of practical difficulties. Furthermore, governmental authorities are being accused of abusing the state of emergency for cases that have nothing to do with terrorism (such as the measures taken against climate demonstrators during COP21).

Human rights abuses are inevitable if police forces are given so much freedom to act without prior judicial intervention. This infringement of the rule of law, which is one of the pillars of every free and democratic society, will become a structural problem if the government succeeds in implementing the planned legislative reforms. Of course, we do not disregard the need to protect a country from terroristic deeds. However, the crux of this issue is how to strike the right balance between on the one hand protecting citizens against terrorists, and on the other protecting them against their own government. In our opinion, this is currently off balance. France finds itself on a dangerous oblique scale towards becoming a police state, and it is high time this development is countered.

3 Comments

Richard Pickerel
Posted on June 15, 2016 at 06:28 by Richard Pickerel

After the Paris attack it was cleared that some of the terrorist travelled from Syria on EU passports. They misused schengen rule. The major mistake was security officers at France airports were not systematic checking passports on schengen entry points. They only checked passports which were not verified.

Friso van de Pol
Posted on May 10, 2016 at 16:34 by Friso van de Pol

Dear Realist (by lack of your real name),

I would like to thank you for your comment, and kindly follow up on your invitation to enter into a discussion. Consecutively, I will try to address all your arguments.

Firstly, pointing out that security guards at public places are of very little inconvenience only strengthens our point that limited inconvenience for the masses can prove to be dangerous as true inconvenience for the few is ignored. I will come back to that later on.

Secondly, countries like Israel indeed have profound measures in place to counter terrorist threats. Without touching on the debate to what extend Israel is comparable to Western-European countries, and to what extend such comparison is desirable, practice also teaches that terrorist attacks in Israel are still commonplace. With regards to the ‘feeling of safety’ you adduce, I invite you to share the supporting statistics. Such a feeling of safety for the majority is, of course, desirable to the extend it does not impede fundamental rights of the minority. As you are probably well aware, democracy is not all about the will of an absolute majority. It should protect the interests of the minority, too.

Thirdly, your arguments regarding accessoriness of ‘most of the neighbourhood’ and 56% of all Muslims flounder. Saying that ‘most of the neighbourhood knew he was there’ to me seems a hasty generalisation. Indeed, the integrity of people who knew Abdeslam’s whereabouts can be strongly questioned, and their possible punishments seed an interesting but different debate. But can some people who know whereabouts of a terrorist justify authorities raining down on a whole neighbourhood, as you suggest? I do not think so. Such actions touch upon complete arbitrariness. Your suggestion that 56% of Muslims support the Jihad and think of the country of their families’ origin are accessories to recent terrorist attacks to us seems a ludicrous argument, and hopefully I misunderstood your point.

Cutting to the chase, your example of the cocaine user who is disregarded when found in a raid that focused on another crime is interesting. Yet you presuppose the existence of a warrant, implying a form of ex ante judicial supervision that is absent in current French practices. Mainly, the example you use is exemplary for the way of thinking we oppose in our blog: because there is little inconvenience for the cocaine user, measures conflicting with our rule of law are justified. Thereby you not only disregard the very severe impact the ‘cup of tea’ with the police can have on (innocent) people, you also disregard many (legal) norms we have collectively decided to be so fundamental that derogation is only allowed in very exceptive situations. These include effective checks and balances between different powers, the right to respect for private life and home (Art. 8 ECHR) and the prohibition of discrimination (Art. 14 ECHR). This fundamentality is not something we came up with overnight. It is an idea that has been developed over centuries, and in its current form is largely a reaction to the atrocities of World War II. In my opinion, history has shown there is a reason for the existence of these fundamental norms, and I therefore find it a dangerous development that more and more people are willing to disregard them due to the lack of concrete inconvenience the absence of these norms will bring them.

So, you could call us leftists idealists, human rights activists or all labels of that sort. To my eyes, we are defending a polity and fundamental rights we collectively agreed upon and which everyone would want to have in place when it is in their interest. By closing our eyes to the existence of a part of reality that is invisible to most, we do no justice to these norms and often even act in conflict therewith. In the end, we do not plea for the preservation of the status quo as it was before the attacks. We simply argue that the balance between anti-terrorist measures on the one hand, and the rule of law and fundamental rights on the other, is currently off. It will be a daunting task to strike the right balance, yet – given the risks at stake – a task worthwhile to take upon ourselves.

Realist
Posted on May 10, 2016 at 05:46 by Realist

I think calling security guards at public places an inconvenience is an incredibly ‘geiten wollen sokken’ statement (if you’ll excuse my Dutch there.) Clearly made by young (leftist) idealists. We’ve tried the coddling approach in Europe over the past fifty years, and unfortunately, it has left us completely open regarding our internal security.

Countries like Israël which are under a constant terrorist threat have found very effective ways to unify protection with daily lives. Large busy malls, and any public area with large amounts of people around have mandatory, often government subsidized guards, armed and with a metal detector. Who check every bag upon entry, say hello and are trained to gauge security threats. Ask any Israeli, or tourist who has been to Israel and you’ll find they all felt safer in the malls and public places. And statistics show they are.

As for human right violations, particularly unlawful searches. I’m really glad that France and Belgium have been able to rely on their state of emergency to do these. And it’s unfortunate they haven’t earlier. Terrorists like Abdeslam would have been caught far earlier, possibly preventing the atrocities in Brussels had the Belgium government kicked every door down in the neighborhood everybody knew he was likely hiding in.

Do I find it a violation his neighbors may have been searched too? Not really, most of the neighborhood knew he was there and didn’t say a thing. Doesn’t that make them accessories? Over 56% of Muslims in Western Europe support Jihad, and do not think of their country of birth as their home-country, but rather the country of birth of their parents or grandparents, does that not make them accessories?

But that’s my opinion. I am curious about your opinions on the following:

Would a change in law permitting police to quite liberally search whole blocks if need be on very little suspicion be morally justified, if it:

1) Shows results
2) Does not result in arrests if evidence is found of something they did not specifically report they are searching for to the judge.

In short, if Belgium would get a warrant for Abdeslam’s arrest, and search his entire neighborhood. Find him and some other random person smoking Marihuana. They are not allowed to arrest or prosecute the Marihuana smoker (Or let’s be even more extreme, Cocaine user.) For their crime. Since they didn’t specifically mention it in their warrant?

In theory this would mean that the common person who has nothing to hide truly has nothing to fear correct? You open the door, offer the good police-man a cup of tea, he doesn’t find what he’s looking for and is on his merry way. If there’s any damage to your property, the state reimburses you.

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