French state of emergency under growing criticism

The Council of Europe has expressed concern over a planned extension of the state of emergency in France, the latest organisation to criticise the French government's actions following the Paris attacks in November.

"It was with some concern that I learned that its extension appeared to be under consideration," the pan-European human rights watchdog's president Thorbjoern Jagland wrote in a letter to French president Francois Hollande i on Monday (25 January).

"I would like to draw your attention to the risks that could result from the prerogatives conferred on the executive by the provisions that apply during the state of emergency if they are not accompanied by appropriate safeguards from the point of view of respect for fundamental freedoms," Jagland wrote.

"I sincerely hope that the current plans for constitutional and criminal-law reforms will secure this essential balance to which you are personally committed."

The state of emergency was declared in France on the evening of the 13 November terrorist attacks in Paris, in which 130 people were killed. After an initial two-week period, it was extended for three months, until 25 February.

Next week, on 3 February, the government will present a bill to extend it for three further months. And on 5 February the parliament will start examining a constitutional reform that includes provisions on the state of emergency.

New normality?

The constitutional bill states that the state of emergency can be declared "in case of immediate danger resulting from serious breach of public order" or of "events presenting, by nature and gravity, a characteristic of public calamity".

It also adds to the constitution special administrative powers to the police, through laws to be voted.

Another measure in the bill is the stripping of French citizenship for French-born people who have another citizenship and are sentenced over "a crime constituting a serious offence to the life of the nation".

While the citizenship measure has divided Hollande's Socialist Party and his leftist majority in parliament, the institutionalisation of special powers is also rejected by some member of the centre-right opposition.


As a consequence, the government is not sure to gain the three-fifths majority in parliament needed to change the constitution.

"As long as the threat is there we must use all means at our disposal," French prime minister Manuel Valls told the BBC last week.

In the interview, Valls appeared to say that the state of emergency would stay "until we can get rid of Daesh”, the Arabic name for the Islamic State group (IS), which has said it carried out the Paris attacks.

Valls also said that France "cannot live forever" under a state of emergency, but the echo of the first report demonstrated fears that exceptional measures could become a kind of new normality with the threat of new attacks still hanging.

UN concerns

In a statement published on 18 January, the French national consultative commission of human rights (CNDCDH) warned that the state of emergency "intrinsically harms" public liberties.

"The state of emergency, which must remain temporary, should not become the rule: its sole and only aim is a rapid return to normality," the human rights watchdog said.

"The biggest victory for the 'enemies of human rights' (terrorists or others) would be to imperil the rule of law with the emergence and consolidation of an illusory state of security that would legitimate itself with the adoption of measures that would be more and more detrimental to fundamental rights and liberties."

The French watchdog's criticism was mirrored by a UN rights experts group who estimated that the measures taken by French authorities "do not seem to adjust to the fundamental principles of necessity and proportionality".

The UN experts noted that the measures only allow judicial review of the powers of the executive after they have been invoked, that a law on surveillance of international electronic communications adopted last year has expanded powers to collect and store communications and date, and that under the state of emergency even environmental activists have been put under house arrest.

“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,” the UN experts said in a statement.

More than two months after the introduction of the state of emergency, the first cracks are appearing.

Breach of freedoms

On 22 January, the Council of State, France's highest administrative court, for the first time ruled that a house arrest under the state of emergency was illegal.

The judges said that a man had been unduly suspected of being a radical islamist and forced to stay home. Lower courts previously annulled seven other house arrest decisions by the police. About 400 people have been placed under house arrest under the measures.

On Tuesday, the Council of State will also examine a request by the Human Rights League (LDH) to suspend the state of emergency.

The NGO says the measure is "a serious and manifestly illegal breach of several fundamental liberties" such as the respect to privacy, the freedom of circulation or the freedom to work.

It also says the November attacks cannot constitute any more an "immediate threat" that could justify that the state of emergency is maintained.

The LDH request could be a watershed in the debate. Firstly because the government will have to explain its action and the measures taken. And secondly because the Council of State in its turn has called upon the Constitutional Court about the constitutional validity of some measures.

The Council of State will probably not suspend the state of emergency, but the Constitutional Court's reply to the request will certainly be the moment when the authorities know the limit of the post-November attacks security package.