International Journal on Criminology Volume 4, Number 2, Winter 2016 | Page 89

The Legal Scheme of Exceptional Circumstances
exceptional police powers involving the regulation of the movement and residence of
persons, the closure of places open to the public, and the requisitioning of weapons.
The decree instituting the state of emergency may provide for a strengthening of
police powers with regard to searches and control of information services. After 12
days, the extension of the state of emergency can only be authorized by law.
Since its promulgation, a state of emergency has been declared six times:
-in 1955, in the context of the Algerian war;
-in 1958, following the events of May 13, 1958 in Algiers;
-in 1961, after the putsch by the generals in Algiers, renewed until May 1963
(for all of metropolitan France);
-in 1984, in New Caledonia, following the first riots;
-in 2005, during the urban riots (25 departments, including Ile-de-France);
-in 2015, after the coordinated attacks in Paris (for all of metropolitan France).
The Constitutional Council ruled on the constitutionality of the law of April
3, 1955 on the state of emergency, during the examination of the law on the state of
emergency in New Caledonia and dependencies (Decision No. 85-187 DC of January
25, 1985, Law on the state of emergency in New Caledonia and dependencies). This
decision states:
“4. Considering that, while the Constitution, in article 36, is expressly intended
for the state of siege, it has nonetheless not excluded the possibility that the law
has provided for a state of emergency scheme in order to reconcile, as has just
been stated, the requirements for freedom and safeguarding public order; that
therefore, the Constitution of October 4, 1959 did not have the effect of abrogating
the law of April 3, 1955 on the state of emergency, which, furthermore, was modified
thereunder.”
Furthermore, the Council of State’s judge hearing applications for interim
relief was, on November 9, 2005, presented with two requests seeking to suspend
the execution of the decrees by the President of the Republic of November 8, 2005
implementing Law No. 55-385 of April 3, 1955 and by the Prime Minister of the
same day on the implementation of this same law.
On that occasion, underscoring the wide discretionary powers available to
the head of state, considering the nature and seriousness of the threats or dangers
the law of April 3, 1955 is meant to deal with, and regarding the decision to use the
state of emergency scheme and the definition of the territorial scope of application,
the Council of State’s judge hearing applications for interim relief felt that—given
that urban violence since October 27, 2005 was worsening and spreading to a large
part of metropolitan France, and that public safety was under attack—the argument
that these decrees would grant the state of emergency scheme a scope of application
that extended uselessly to all of metropolitan France did not raise any serious doubts
concerning the legality of these acts.
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