International Journal on Criminology Volume 4, Number 2, Winter 2016 | Page 88

International Journal on Criminology
the field of application, and it can only be implemented in a case of “imminent peril
resulting from a foreign war or armed insurrection” (terminology used in the law of
April 3, 1878 and repeated in article L. 2121-1).
Its extension beyond 12 days must be authorized by Parliament. Its application
involves the transfer of prerogatives from the civil authority to the military authority
in terms of maintaining order and police, while the civil authority continues to
exercise its other powers (art. L. 2121-2).
In this regard, the implementation of the state of siege involves military
jurisdictions for a certain number of exhaustively listed infractions (L. 2121-3) and
the possibility of the military authority to:
“-conduct household searches by day or night;
-remove any person having been subject to a final conviction for a crime
or offense and individuals who do not reside in the place under the state of
siege;
-order that weapons and ammunition be surrendered, and proceed to search
and remove them;
-prohibit publications and meetings it judges to be a threat to the public
order” (L. 2121-7).
This transfer is not however automatic: on the one hand, military jurisdictions have
not been allowed since 1982 in peacetime and, on the other hand, the transfer only
takes place if the military authority seeks to prosecute in the jurisdictions of ordinary
courts.
This legal scheme, conceived for the most serious cases of peril, has never
been applied under the Fourth and Fifth Republics; the most “recent” uses go back
to the two last world wars (during World War I with the decree of August 2, 1914, for
the state of siege, and the law of August 5, 1914 related to the state of siege; during
World War II with the decree-law of September 1, 1939 in respect of a declaration of
a state of siege (89 departments plus the Territory of Belfort and the 3 departments
of Algeria)).
(C) The State of Emergency: The Development of Police Administrative Powers
(see Olivier Beaud and Cécile Guérin-Bargues, “L’état d’urgence de novembre 2015:
une mise en perspective historique et critique,” Jus Politicum 15 (2016)).
(1) The Regime Provided for by the Law of April 3, 1955
The state of emergency, which results from law No. 55-385 of April 3, 1955,
is applicable “either in a case of imminent peril resulting from serious attacks against
the public order, or in the case of events having, due to their nature and seriousness,
the character of public calamity.” Declared by decree made in consultation with
ministers, it grants civil authorities, in the geographic region to which it applies,
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