The Assembly’s law commission was scheduled to begin examining the bill on September 12, 2017. The bill, approved by the Senate in July, is being fast-tracked and is to go to a final vote in an extraordinary session of Parliament on September 25.
“France’s new counterterrorism bill grants the executive far-reaching powers to clamp down on the ability of ordinary people in France to worship, assemble, move freely, express themselves, and enjoy their privacy,” said Kartik Raj, Western Europe researcher at Human Rights Watch. “The National Assembly needs to take the time needed to scrutinize and revise the bill before it’s too late.”
The current version of the Draft Law to Strengthen Internal Security and the Fight Against Terrorism would end the state of emergency formally on November 1, after almost two years, but replace it immediately with a host of measures that write exceptional, emergency practices into normal criminal and administrative law. The bill now contains two important concessions, however: the new powers will lapse in 2021, and the government has to report back to parliament annually on how it uses the new powers.
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 places of worship; and to search private property.
The judiciary would have no role in approving the use of the first two 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 – initially a special “liberty and detention judge”, and a Court of Appeal judge if the decision is appealed – will have limited oversight of search powers. The bill’s vague definitions of terrorism and threats to national security exacerbate concerns that the powers will be used in an arbitrary manner.
The draft bill also changes surveillance legislation, border controls and processes for the retention of passenger data, and includes a new requirement for financial reporting by any organization carrying out counter-radicalization projects as a public function.
Increased powers for prefects to designate public spaces or events as “perimeters of protection” for up to a month, allowing police to search people, bags, and vehicles, lack any requirement of a demonstrably serious or imminent threat, despite Senate efforts to introduce such language. The power would be renewable, in theory, on a rolling month-by-month basis. Given the lack of any legal powers to address discrimination in the use of these powers, these new powers risk exacerbating ethnic profiling against a background of longstanding concerns about discrimination in identity checks.
The current version of the bill replaces the system of “assigned residence orders” under the state of emergency, which can amount to house arrest and have led to significant abuses, with somewhat less intrusive restrictions now called “individualized administrative control and surveillance measures.” This system provides executive powers to require a person to remain within a geographic boundary, to report periodically to a police station, to accept an electronic surveillance bracelet, and to report any changes of residence. The powers can be imposed for vague and overly broad grounds without prior judicial authorization. The version before the National Assembly now includes a right to appeal the decision to an administrative tribunal when the government seeks to renew the restrictions.
The bill increases prefects’ powers to close places of worship without prior judicial authorization with the aim of “preventing acts of terrorism”. The definition of what constitutes a threat, despite minor amendments in the Senate that require the threatening ideas to be expressed in writing, lacks a clear link to the commission of a violent act, remains overly vague, and is open to abuse.
Search powers remain relatively unchanged from the earlier draft, although a requirement has been added for the judicial police officer present during a search to identify themselves formally in the written record of the search.
The powers as used in the state of emergency have drawn widespread criticism for leading to abuses while having limited impact on terrorism threats. Members of parliament who oversee their use and the Defender of Rights, the national human rights oversight body, have also expressed reservations.
Human Rights Watch and other groups have documented that assigned residence powers and the exercise of search powers have led to human rights abuses in France. Both the national and European human rights watchdogs criticized the draft bill while Senate considered it.
The entire legislative process, if completed by September 25 as anticipated, would grant the executive wide-ranging powers in an accelerated procedure that will have lasted just over three months, including the summer recess. Although limited formally until 2021, the law would potentially be open to further renewal after a review of its operation in 2020.
France already has expansive counterterrorism laws that permit the authorities to investigate, detain, and prosecute suspects, some of which have been used abusively. The French government’s own 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.”
“The sunset clause added by the Senate should not obscure the fact that this bill would normalize measures that have only been used under exceptional circumstances,” Raj said. “During these two crucial weeks to hold the legislation up to the light, the National Assembly has a duty to the people of France make sure it preserves human rights and the rule of law.”
