France and the state of emergency: moving in the wrong direction
After the 2015 terrorist attacks the French government initiated numerous legislative projects, most notably the state of emergency. What impact have these legal changes had on French citizens? How do they relate to human rights and the rule of law?
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.