France: Don’t ‘Normalize’ Emergency Powers

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(Paris) – The French government’s new counterterrorism bill would move some overly broad emergency powers into normal criminal and administrative law without adequate judicial safeguards Human Rights Watch said today.

The Draft Law to Strengthen Internal Security and the Fight Against Terrorism, presented to the Council of Ministers on June 22, 2017, would undermine the rule of law. The government, which has a majority in parliament, also wants to extend the state of emergency until November, when the new powers would take effect.

“Instead of truly ending France’s 19-month temporary state of emergency, the government is making some of its far-reaching powers permanent but with little effective court oversight,” said Kartik Raj, Western Europe researcher at Human Rights Watch. “If France’s new government is serious about defending core values while fighting terrorism, it should amend this law to restore the rule of law to counterterrorism efforts.”

France already has some of the continent’s most expansive laws to deal with terrorism, sweeping surveillance laws, and abusive counterterrorism practices, which Human Rights Watch has documented. The government’s own web page on the fight against terrorism noted in May that it had “completed its legal arsenal.”

The bill would grant increased powers to prefects, the interior minister’s local representatives, to designate public spaces as security zones, limiting who could enter and leave them; to limit the movement of people considered a national security threat; to close mosques and other places of worship; and to search private property.

The courts would have no role in approving the use of the first three powers, although there would be a limited right of appeal for orders limiting where a person has to live and for closing places of worship. A judge will have limited oversight of search powers. The lack of time limits and the bill’s vague definitions of terrorism and threats to national security exacerbates the concerns.

The Council of State, the governmental body that provides nonbinding legal advice to the executive about proposed laws to check their compliance with existing laws and obligations, issued its recommendations on the draft bill to the government on June 15. This advice sought to blunt the sharpest corners of the law, but in effect gave it a green light. Although the version presented to the Council of Ministers made some minor concessions and cosmetic changes, it ignored significant Council of State recommendations for time limits or for reducing the proposed time limits for the exercise of specific powers.

The powers as used in the state of emergency have drawn widespread criticism from members of parliament who oversee their use, UN experts, and the Defender of Rights – the national human rights oversight body, for leading to abuses while having limited impact on terrorism threats. Human Rights Watch and other groups have documented how assigned residence powers and the exercise of search powers have led to human rights abuses against ordinary people in France.

The draft bill also introduces changes to surveillance legislation, border controls, and processes for retaining the data of passengers arriving by sea or airplane.

The proposed law has received scathing criticism already from some of France’s leading constitutional law scholars and its Defender of Rights, who has characterized the replacement of exceptional measures with permanent ones as “a poisoned pill.”

The draft bill would grant a prefect the power to designate a zone as a “perimeter of protection” increasing police powers to conduct searches of people, bags, and vehicles, and to refuse entry. This power, envisioned for use where there is “a risk of an act of terrorism” to a public event or in a public space, is very vaguely worded, and lacks a requirement for judicial authorization. It also lacks any explicit requirement for the prefect to justify why the threat is imminent and severe enough to merit such a measure.

Given Human Rights Watch and others’ longstanding concerns about discrimination in identity checks and a significant reported spike in orders since July 2016 from prefects to carry out stop-and-search procedures, these new powers risk exacerbating ethnic profiling.

The law replaces the system of “assigned residence orders” in the current state of emergency with “individualized surveillance measures.” The law allows the executive to order a person to reside in a specific town (commune), report once a day to the police station, accept electronic surveillance using a bracelet, inform the authorities of any change of residence, and provide details of their electronic communications to law enforcement authorities. These are slightly less restrictive than assigned residence orders under the state of emergency which can, for example, require reporting to a police station up to three times a day and remaining at home for 10 to 12 hours overnight.

The orders could be issued “where there are serious reasons to believe that a person presents a risk to public order and security, given regular association with people or organizations that incite, facilitate or participate in acts of terrorism, or that support or follow theories that call for the commission of acts of terrorism in France or abroad, or that make apology for such acts.” Such orders would not require prior judicial authorization but a prefect would have to notify a prosecutor in advance.

Despite the Council of State’s recommendation for a six-month limit for the geographic restriction and to 12 months for all other measures, the government has proposed that the geographic restriction can be renewed indefinitely, every three months, based on a vague test of “new or additional information.” Violating the terms of such a measure could lead to up to three years in prison or a fine of €45,000. These restrictions on the right to liberty and freedom of movement also risk violating the rights to private and family life and freedom of association.

The draft law uses similarly vague language to repackage much-criticized powers of search without warrant during the state of emergency by relabelling searches of houses and business premises as “visits and seizures.” A prefect could also issue such an order, but, unlike the others, would need prior authorization of a liberty and detention judge, who would oversee its conduct and decide on what data and equipment could be seized.

Under the current wording, the government could conduct searches – except if the premises is covered by legal or journalistic privilege – where there are serious reasons for thinking that a person who presents a vaguely worded “threat to national security” frequents it. Human Rights Watch has previously expressed concerns about the extent to which a liberty and detention judge can provide the promised effective safeguard, especially in terrorism cases.

The bill also increases prefects’ authority to close places of worship with the specific aim of “preventing acts of terrorism,” on extremely broad grounds without requiring any direct link with the actual commission of an act of terror. Although the government has accepted the Council of State’s recommendation to narrow its initial definition, the reasoning still remains alarmingly vague. As the text stands, it could, for instance, be used arbitrarily to prohibit any meeting at which ideas or theological concepts associated with conservative interpretations of Islam, such as Salafism, are expressed regardless of whether there is any demonstrable connection to criminal activity.

The six-month closure would not require prior judicial authorization, although legal appeals would be possible. Violating such an order would carry a prison sentence of up to six months and a fine of up to €7,500.

The measures risk restricting the rights to freedom of belief and religion, to freedom of expression and freedom of association. If, as is expected, the powers are used primarily against Muslims with conservative interpretations of their faith, they may also be discriminatory. Poorly worded laws that are likely to lead to closing solely Muslim places of worship may also help feed anti-Muslim rhetoric and prejudice prevalent in wider society.

Human Rights Watch has called on the French government, in coalition with human rights organizations and other nongovernmental groups in France, to end the current state of emergency and to avoid normalizing emergency security measures.

“As a country that prides itself on a tradition of liberties and rights, France needs to find a way to end its state of emergency without normalizing abusive practices,” Raj said “As the law makes its way through the Assembly, representatives of all parties should ask tough questions about whether this law is necessary, and at what cost for liberty and the rule of law in France.”