French State of Emergency: same player, play again

Update of 10 January 2017: French Senate adopted the extension as well. The text is available here.

Update of 14 December 2016: French National Assembly adopted yesterday the extension of the state emergency until July 2017. On Thursday 15 December, it is Senate’s turn to decide.

Paris, 14 December 2016 — The French National Assembly and Senate are about to extend the state of emergency established in France one year ago, on 13 November 2015, for the fith consecutive time. PM Bernard Cazeneuve’s administration is requesting a renewal until 15 July 2017 with no guarantee that this state of emergency will end. France is settling into a permanent state of Human Rights suspension and in limitations of civil liberties that become more difficult to block everyday. La Quadrature du Net is calling on MPs to deny this renewal and return to the Rule of Law and the respect of rights and liberties, in this period of crucial elections.

Permanent State of Emergency

As we said since its first establishment, the state of emergency is a method of permanent governance that hurts the Rule of Law. A persisting threat cannot justify it. Article 3 of 55-385 law of 3 April 1955 states: “The law authorising the renewal of the state of emergency beyond 12 days specifies its ultimate length”. However, this is the fifth renewal beyond this “ultimate” term. The government and those supporting this are expecting us to get used to the weakening of liberties, which is sadly a victory for those who threaten us with violence.

State of emergency inadequate for fighting terrorism

Since 13 November 2015, several reports, reviews, articles and analyses, as well as several decisions by the French Constitutional Council and the French Council of State on house arrests and extra-judicial searches showed how ineffective the state of emergency is in the short-term fight against terrorism, or to reduce the long-term threat. It seems that the state of emergency is essentially used to collect intelligence and put people under wraps when we don’t know what to do with them.

Dominique Raimbourg himself, president of the Law Commission and of the Parliamentary Oversight Commission of the state of emergency, underlined on 6 December 2016 how few judicial procedures related to terrorism have been made possible by the state of emergency.

The state of emergency diverted from its initial purpose as an antiterrorism tool

Moreover, it has been demonstrated and recognised that the state of emergency is not being used only for antiterrorism purposes, since it is not required that all policies be related to the terrorist threat. It has been used as a tool of social, security and political control, while deliberately dispensing with the European Convention of Human Rights for over a year, without French MPs reacting in any meaningful way as to prevent this drift. Yet it is exactly the complain of the Control Commission of the French National Assembly report (fr) published last 6 December. MPs note that “a large majority of orders do not address specific circumstances” and observe that “a logic of emergency and exception has, in effect, replaced the rule of law”. The massive recourse to interdiction to be present in certain areas during months-long protests against the Labour Law and the house arrests during big events such as the COP21 last November are good examples.

A dangerous state of emergency regarding fundamental rights

The state of emergency was put in place one year ago, on 13 November 2015. Because it allows for suspension of fundamental rights, the state of emergency cannot be considered mere policy to reassure people as to the commitment of the State in fighting terrorism. While it seems that a large part of the population does not suffer from concrete effects of this situation in everyday life, some are targeted for surveillance by the police and intelligence services because of their religion, of the neighbourhoods where they live, of their acquaintances, or of a number of other discretionary reasons. These persons have been experiencing pernicious effects because France is drifting away from the fundamental rights that are the foundations of her justice system and her democracy.

The administrative police has a preventive goal : its role is to study clues to foresee possible breaches of the peace (such as demonstrations, events, beggars, etc.). However, in a state of emergency context, its missions become based upon suspected behaviour of individuals : “I am arresting you for breaches of the peace that you may commit ».¹Cassia, Paul 2016 : Contre l’état d’urgence, Dalloz, p.75 The state of emergency law as modified by the law of 20 November 2015 formalises how prefects and the Minister of Home Affairs may perform such divination of individual dangerousness, to prevent potential future acts. To this end, administrative decisions are based on a perfect’s subjectivity, consolidating unjustified discrimination against certain groups of the population, already strongly stigmatised. In February 2016 the Defender of Rights (fr) was already warning the State services against “deleterious effects” that could seriously endanger social cohesion.

A fifth renewal which will not solve the issues already being raised for a year

The bill presented to the French National Assembly and the French Senate this week does not address the multiple concerns raised over the past year not only by fundamental rights organisations but also increasingly by magistrates, MPs and even visible in the public reflections of the Vice-President of the Council of State (fr).

• The bill specifies no time limit to the state of emergency, allowing its renewal without constraint after 15 July, and extending the state of emergency well beyond the presidential or legislative elections: will it become impossible to experience one single nationwide event in this country outside the realm of the state of emergency? After the regional elections and the COP21 in December 2015, the UEFA Euro 2016 in June 2016 also served as a pretext to renew the state of emergency. Today it is the elections. In July 2017 what will be the argument used to extend the state of emergency again? No doubt there will always be a “good reason” to bypass the rule of law. We have already experienced this in France with the Vigipirate plan, which has been underway almost continuously since 1995.
• The bill fails to answer to the increasingly massive questions about house arrests dragging on. Out of 95 people under house arrest today, 56 already were during the latest extension in July and amongst these, 47 have been under house arrest from November 2015 ²See the presentation of the Parliamentary control Commission’s report by Dominique Raimbourg on 6 December 2016.. At this stage it is no longer possible to talk about “restriction”, it is indeed a “deprivation” of a fundamental freedom: the freedom of movement. Even the French Council of State, in its half-hearted opinion (fr) prior to this bill, emphasised that these never-ending house arrests constitute a severe attack on fundamental rights. It advocated for a maximum of 12 consecutive months for a house arrest, and the parliamentary monitoring mission recommended a limit of 8 months in its 6 December report. But the government chose to extend this measure to 15 consecutive months, and to allow for extending or resuming house arrest whenever “new elements” appear. These elements always consist mostly in so-called “white notes” from the intelligence service, which are impossible to challenge since they are neither dated nor signed, total hypocrisy (fr).
• The bill does not reflect the decision of the French Constitutional Council from 2 December, which censures the retention rules for data seized in judicial computer searches. The Constitutional Council deemed non-compliant (fr) the lack of a duration limit for retention of data seized during a computer search resulting in no charge: “the legislator has not, concerning the retention of this data, provided for any legal guarantee to ensure a balanced equilibrium between the right to privacy and the Constitution-mandated obligation to safeguard public peace’. But as this censure will only come in force on 1 March, the government did not deem it necessary to bring its text into conformity with the Constitution.
• This bill takes no account of measures that already exist in common law. When the state of emergency was extended for the second time on 26 February 2016, it was for only 3 months because — as it did not want to convoy the impression that it wanted to suspend fundamental liberties indefinitely — the government conditioned the end of this exceptional state to incorporating some of its measures into common law. The penal reform project was therefore conceived to pick up where the state of emergency left off. It came to a vote under an accelerated procedure, installing several measures stemming directly from the state of emergency into common law, notably measures for the house arrest of persons returning from travel abroad with the purpose to participate in terrorist activities, or from a theatre of terrorist operations.

  At the same time, several tools and domains of competence granted to the intelligence services by the 2015 Surveillance Law have been considerably extended to police services, just as the fourth renewal of the State of emergency in July 2016 was an opportunity to significantly expand the Surveillance Law. Finally we learn at the end of the latest notice of the Council of State (fr), dated 8 December, that yet another security law — called “law for public security” — is being prepared and should soon come before Parliament. This conjoining the infinite extension of the state of emergency with the proliferation of security laws (which are never limited to terrorism, but harden common law for numerous other infractions) leads to a significant hardening of our legislation without taking the time for basic consideration of what could and should be antiterrorist measures in a democratic society facing a danger which appears to be unending.

Despite the many misgivings and warnings expressed both within their ranks and by other organisations, will the herd of deputies and senators continue to steer us into a permanent state of emergency? Do they really have a long-term vision of the regime they want for France? Will they again content themselves with voting following the whims of a public sentiment aggravated by the scaremongering speeches of the government? These deputies and senators who are about to vote for a fifth extension of the state of emergency, and in the weeks to come for a new security law, are committing themselves to indefinitely extending an exceptional regime which, in its very nature, is a threat to fundamental rights, and engraving it even more deeply into the daily life of the French. La Quadrature du Net calls on them, on the contrary, to live up to their responsibilities and take the time to truly consider the long-term impact of this policy which, little by little, is tearing down all the checks and balances that make up the rule of law.