States of emergency in France

Decree to declare the state of emergency on 22 April 1961

States of emergency in France (French: état d'urgence) are dispositions to grant special powers to the executive branch in case of exceptional circumstances. A state of emergency was declared following the November 2015 Paris attacks, which expired, after five extensions, in November 2017.[1][2][3][4][5]

Three main provisions concern various kinds of "states of emergency" in France: two of those provisions stem from the Constitution of 1958, and the third from a statute:

  • Article 16 of the Constitution provides for "exceptional powers" (Pouvoirs exceptionnels) to the president in times of acute crisis.
  • Article 36 of the same constitution regulates "state of siege" (état de siège).
  • Finally, the Act of 3 April 1955 allows the President of the Republic to declare a "state of emergency".[6]

There are distinctions between article 16, article 36 and the 1955 Act, which concerns mainly the distribution of powers. These dispositions have been used at various times, in 1955, 1958, 1961, 1988, 2005, and 2015-2017.

Legal framework

The French Constitution, adopted in October 1958, was drafted with both the experience of the difficulties experienced by the executive in 1940 during the Battle of France and taking into account the contemporary state of affairs, namely the Algerian war.

Article 16 of the Constitution – Pouvoirs exceptionnels

Article 16 of the Constitution[7] gives the President "extraordinary powers" in exceptional cases, leading to an effective "state of exception":

When the institutions of the Republic, the independence of the nation, the integrity of its territory, or the fulfillment of its international commitments are under grave and immediate threat and when the proper functioning of the constitutional governmental authorities is interrupted, the President of the Republic shall take the measures demanded by these circumstances after official consultation with the Prime Minister, the presidents of the Assemblies, and the Constitutional Council.

He shall inform the nation of these measures by a message.

These measures must be prompted by a will to ensure within the shortest possible time that the constitutional governmental authorities have the means of fulfilling their duties. The Constitutional Council shall be consulted with regard to such measures.

Parliament shall meet ipso jure.

The National Assembly may not be dissolved during the exercise of emergency powers.

After thirty days of exercise of the exceptional powers, the Constitutional Council can be referred to by the President of the National Assembly, the President of the Senate, sixty députés or sénateurs (members of each chamber), to determine if the conditions provided in the first paragraph are still met. The Council shall rule in the shortest time possible by a public ruling. The Council rules ipso jure and rules in the same conditions after sixty days of exercise of the exceptional powers and at any moment beyond this period.

The conditions are both that the state is confronted to exceptional circumstances and that the regular institutions are disrupted and cannot effectively govern.[8] This amendment to the Constitution of the Fifth Republic has been qualified as "liberticide" by critics.[8] Invoked on 23 April 1961 during the Algerian War; normal functioning of institutions was quickly restored.[8]

In the judgment Rubin de Servens of 2 March 1962, the Conseil d'État judged that it could not itself invoke Article 16, as that constituted an "act of government". Furthermore, the State Council considered that it could only pronounce on rulings which were not legislative acts carried out during this period. Thus, a legislative measure (although the role of Parliament is not specified, just that it is not to be dissolved) which breaches fundamental liberties cannot be appealed against before the State Council.[8]

In 1972, the Common Programme of the Left (issued from an alliance between the Socialist Party and the Communist Party) proposed to repeal Article 16. However, François Mitterrand's program for the socialist presidential campaign in 1981, that he eventually won, did not include this proposition.

The Socialist government of Pierre Bérégovoy included a reform of this article in its project of Constitutional reform in 1992, but the project was not implemented. Also in 1992, the Vedel Commission, created by François Mitterrand, proposed to give to the Conseil Constitutionnel (Constitutional Council), on the concerted initiative of the President of the Republic and the presidents of both chambers (the Assemblée nationale and the Sénat), the mission to determine that the conditions required for the use of Article 16 were, in fact, met.[8]

On 23 July 2008, a constitutional act was passed which, among other amendments, added a paragraph to Article 16 of the Constitution[9] which stated that after 30 days the Constitutional Council can be requested to determine in a public ruling whether or not the conditions that justified the use of Article 16 are still current. At any time beyond 60 days, the Council rules on this issue without the need for a referral.

Article 36 of the Constitution – État de siège

Article 36 of the Constitution is concerned with the state of siege (in French), which can be decreed by the President in the Council of Ministers for a period of twelve days which can only be extended with the approval of the Parliament. A state of siege may be declared in case of an "imminent peril resulting from a foreign war [guerre étrangère, or simply "war"] or an armed insurrection (une insurrection à main armée).[10]

Military authorities may take police powers if they judge it necessary. Fundamental liberties may be restricted, such as the right of association, legalization of searches in private places day and night, the power to expel people who have been condemned for common law matters or people who do not have the right of residence in the territory, etc.

Statute provisions – État d'urgence

The state of emergency in France is framed by the Law n°55-385 of 3 April 1955 (pre-dating the Constitution of the Fifth Republic) and modeled on the "état de siège". It was created in the context of the Algerian war, to allow the authorities to manage crisis without having to declare the "état de siège", which allows the military to take over a large part of the civilian authorities and which was conceived for wartime.

The 1955 statute states that the state of emergency can be decreed by the Président de la République in the Council of Ministers. The decision to proclaim the state of emergency can only last for 12 days. To extend the state of emergency for a longer period of time necessitates a law passed regularly through the Parliament.

Proclaiming the state of emergency gives exceptional powers to the Minister of the Interior and to prefects. The Minister can pronounce house arrests. The prefects can regulate or forbid circulation and gathering in some areas: the power of curfew, which mayors can pronounce for the territory of their city independently of the state of emergency, is extended to prefects.

The Minister and the prefects can, for the part of the territory concerned by the state of emergency, order places of gathering to be closed. Authorities can also order that legally-detained weapons be relinquished to them. There is no need for the administration to motivate its decisions: house arrests or decisions forbidding someone to enter a defined area can be appealed.

All of those powers are not enacted by the simple proclamation of the state of emergency, but may be decided by the authorities if the need arise.

If the decree, or later, the law, says so, the authorities can:

  • decide administrative searches and seizures, day and night, without judiciary oversight,
  • censorship the press, radio, films and theater representations.

Article 12 of the 1955 law allows to transfer, if a decree specifically provides it, the transfer of some crimes from the judiciary to military justice.

This law is modeled after the society of the time, to deal with a specific crisis, and its objective was to prevent a civil war or very severe unrest emanating from a part of the population. Some parts have since become obsolete:

  • censorship is not politically as acceptable in the twenty-first century as it was at the time the law (which mentions neither television or Internet) was passed;
  • administrative search and seizures must now be submitted to judicial oversight;
  • the 2012 law on gun control[11] has rendered partly obsolete the possibility of a decree requiring citizens to relinquish legally-owned weapons, which were more common in the aftermath to World War II;
  • various terrorism laws have strengthened the criminal procedure since the 1980s: the powers available to the police and judges when investigating terrorism acts are beyond those described in the 1955 law.
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