The most direct legal consequence of the terrorist attacks in Paris on 13 November 13th last year was the declaration of a state of emergency (état d’urgence) for the whole of France. President Hollande publicly announced this state of emergency on the same evening the attacks took place. It entered into force the next morning, after an official decree by the Council of Ministers. This state of emergency is based on an Act from 1955, which was originally intended to deal with the Algerian war of independence. The Act authorises the declaration of a state of emergency for a maximum period of twelve days. It can be declared in the event of an imminent danger to the public order, or in relation to events which amount, by their nature and severity, to a public disaster. Prolongation of the state of emergency beyond twelve days can only be decided by Act of Parliament. And this is exactly what happened: an Act to prolong the state of emergency for another three months entered into force on 20 November.
This état d’urgence is just one of the types of state of emergency that is possible under the French constitutional system. Article 16 of the Constitution allows, in times of crisis, “extraordinary powers” to be given to the president, leading to an effective “state of exception”. Article 36 of the same constitution regulates “state of siege” (état de siège). The differences between these three types of emergency regimes mainly concern the distribution of powers.
The current French état d’urgence gives exceptional powers to the Minister of the Interior and to prefects (state representatives at the local level). They can pronounce house arrests for any person whose actions prove dangerous for security and public order, without prior judicial authorisation. Moreover, this person can be obliged to surrender his or her passport or ID card. The prefects can regulate or forbid circulation and gathering in some areas. The Minister and the prefects can order places of gathering to be closed. Also, house searches can be executed without prior authorisation by a judge. There is no need for the administration to motivate its decisions: house arrests or decisions forbidding someone from entering a defined area can be appealed.
As Utrecht Law School colleague Tony Marguery already explained in a previous blog, the measures taken as part of the emergency regime in France do raise quite a number of questions with regard to their compatibility with international and European human rights standards. On 30 January thousands of people marched in 70 French cities, including Paris, to demand immediate action to stop France's ongoing state of emergency. At that time the French parliament was considering a further extension of the state of emergency for another three months. Although Amnesty International fiercely criticised the ‘disproportionate impact of the emergency measures’, Parliament agreed and the new Act entered into force on 1 March.
In my view, especially the powers of house arrest and house searches without prior judicial authorisation are difficult to reconcile with the standards of the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights. The French government seems to realise this, so it has used the one escape the ECHR offers in this respect. On 25 November 2015 it notified the Secretary General of the Council of Europe, in accordance with Article 15(3) ECHR, that the measures taken during the state of emergency may derogate from the obligations under the treaty.