International Journal on Criminology Volume 4, Number 2, Winter 2016 | Page 87

The Legal Scheme of Exceptional Circumstances
It is interesting to note that these measures taken under the authority of article
16 remain in effect even though this article is no longer used (CE, Ass., October 23,
1964, d'Oriano). The role of administrative and constitutional judges remains modest,
which favors the expression of state power then held entirely by the President of the
Republic.
(B) The State of Siege: An Appeal to Military Authorities
The state of siege goes back to the Ancien Regime. Its name comes from the
status of strongholds under siege, where the military governor held all the authority.
More recently, its legal bases were established by two laws from August 9, 1849 and
April 3, 1878 (The law of April 3, 1878 took up the law of August 9, 1849 while also
specifying, in its article 6, the maintaining, aside from articles 4 and 5 of the law of
1849, of “the dispositions of its other articles not contrary” to it), which remained
in effect until the adoption of the legislative part of the Defense Code (Order No.
2004-1374 of December 20, 2004 related to the legislative part of the Defense Code,
ratified by law No. 2005-1550 of December 12, 2005 modifying various dispositions
related to defense).
These laws on the state of siege were themselves directly in line with older
provisions, such as the law of 10 Fructidor, year V on implementing the state of
siege or war for the communes, or article 92 of the Constitution of 22 Frimaire,
year VIII (December 13, 1799), which states: “In case of rebellion by armed forces
or of disturbances that threaten the security of the state, the law may suspend, in
the places and for the time which it determines, the authority of the constitution.—
This suspension can be declared provisionally in the same cases, by an order of
the government, the Legislative Body being on vacation, provided that this body is
convened within the shortest possible time by an article of the same order."
It is interesting to note that under the July monarchy, there were decisions
by the Court of Cassation of June 29 and 30 and July 7 and 13, 1832 (ruling on
the constitutionality of decrees implementing the royal order of June 6, 1832 that
decreed a state of siege for various communes and a department) that invalidated
provisions of a decree shielding a citizen seeking justice from the natural court to the
benefit of the war council (Court of cass., June 29, 1832, Geoffroy, June 30, 1832,
Colombat, July 7, 1832, Poiron, July 13, 1832, N.). The judge was already concerned
with respecting fundamental principles . . . and this was the ordinary judge!
As under the Fourth Republic (article 7 supplemented by the revision
of December 7, 1954, which states that “The state of siege is declared under the
conditions provided for by law”), the state of siege contains a constitutional basis in
article 36 of the Constitution of October 4, 1958.
Now regulated by articles L. 2121-1 to L. 2121-8 of the Defense Code, a state
of siege is declared by a decree in consultation with the ministers, who determine
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