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France: Emergency Renewal Risks Normalizing Extraordinary Powers

Following 5th Extension, Time to Rethink Exceptional Measures

(Paris) – The French parliament’s adoption of a new law on December 15, 2016, to prolong the country’s state of emergency for an additional seven months risks normalizing exceptional measures while weakening human rights and the rule of law, Human Rights Watch and Amnesty International said today. At the end of this latest extension, France would have spent 20 months under the state of emergency.

“With each renewal, the state of emergency slowly becomes the new norm, which is dangerous for a democracy based on rule of law,” said Nadim Houry, director of the terrorism and counterterrorism program at Human Rights Watch. “Given that terrorism will arguably remain a threat for the foreseeable future, the authorities should seriously reevaluate their reliance on exceptional measures and return to existing legal measures.”

Interior Minister Bruno Le Roux justified the extension request before the National Assembly, saying that the terrorist threat remained “extremely high.” He said there was a risk of attacks in the coming “intense electoral period” with the French presidential and legislative elections scheduled between April and June 2017.

In the December 15 extension, parliament capped the period for which house arrests under emergency powers can be issued to 12 months unless the country’s highest administrative court, the Conseil d’État, approves further extensions of three months. Out of 95 people under house arrest as of December 6, 37 have been under house arrest for a year or more.

The government should further strengthen safeguards around the use of house arrest and raids to ensure that emergency powers are applied only to the extent strictly required, while at the same time holding a wider discussion about the need to exit the state of emergency, Human Rights Watch said.

President Francois Hollande declared the state of emergency hours after the deadly Paris attacks of November 13, 2015, activating an emergency law created in 1955 during France’s war in Algeria, which grants vast powers to the interior minister and local government officials to search homes and other premises and restrict people’s movements without a judicial warrant.

According to the Parliamentary Commission in charge of overseeing the application of the state of emergency, French law enforcement officials have relied on the state of emergency in place since November 2015 to conduct 4,292 warrantless raids, 612 house arrests – including the 95 who remain under house arrest, and 1,657 identity and vehicle control stops. These measures have led to only 61 terrorism-related criminal investigations, including only 20 under France’s broadly defined offense of “criminal association in relation to a terrorist undertaking” (association de malfaiteurs en relation avec une entreprise terroriste). The other 41 related to lesser charges of glorifying terrorism.

There are serious questions about the efficacy of the exceptional measures, Human Rights Watch said. The number of judicial procedures enacted as a result of the additional prerogatives is small in comparison with regular judicial procedures. Since the declaration of the state of emergency, the centralized counterterrorism unit of the Prosecutor’s office has opened 169 judicial investigations without relying on emergency measures.

The Parliamentary Commission’s own report notes that raids conducted under the emergency rules have only contributed “modestly” to the work of the prosecutor’s counterterrorism unit. An earlier French commission of inquiry into the November 2015 attacks concluded in July, 2016, that the state of emergency had “limited impact” on improving security.

France already has a raft of counterterrorism laws under the non-emergency regime, many of which already contain problematic provisions in terms of human rights, that permit the authorities to investigate, detain, and prosecute suspects. Since the November 2015 attacks, France has repeatedly expanded powers under its regular legislative arsenal to combat terrorism. The French government’s website on the fight against terrorism noted in August 2016 that the government has “completed its legal arsenal and put in place an unprecedented reinforcement of its means in the police, justice, army and intelligence services.”

France’s Conseil d’État, the country’s highest administrative court, warned in February, at the time of the second extension, that “a state of emergency remains a “state of crisis” that is inherently temporary. Its renewals should not therefore follow indefinitely.” The Council of Europe’s human rights commissioner, UN independent experts, the French Ombudsman, France’s National Commission for Human Rights, as well as lawyers, judges, and nongovernmental organizations have expressed serious concerns about an indefinite state of emergency.

Under international law, governments may temporarily restrict certain rights during states of emergency – including freedom of movement, expression, and association – but only “to the extent strictly required by the exigencies of the situation.” Governments must ensure that any such measures are strictly proportionate to the aim pursued, and that emergency powers are not applied in a discriminatory manner, and do not stigmatize people of a particular ethnicity, religion, or social group.

“This extension threatens to turn a generalized security threat into grounds for a constant state of emergency,” said John Dalhuisen, Amnesty International’s Europe Director. “The ongoing use of disproportionate sweeping executive powers, with few checks on their use, is resulting in a host of human rights abuses. In the long run the choice between rights and security that the French people are being presented with is a false one.”

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