International Journal on Criminology Volume 4, Number 2, Winter 2016 | Page 93
The Legal Scheme of Exceptional Circumstances
The major innovation that resulted from the law of November 20, 2015 was
the legal scheme of the state of emergency that now provides for modalities for
monitoring its implementation by Parliament: “Art. 4-1.—The National Assembly and
the Senate shall be informed without delay of the measures taken by the Government
during the state of emergency. They may call for any complementary information as
part of the monitoring and evaluation of these measures.”
The Legislative committee of the National Assembly gave its Chairman, still
Jean-Jacques Urvoas at the time, as well as Jean-Frédéric Poisson, the permanent
mission of monitoring the measures taken with regard to the state of emergency.
The Senate created a state of emergency monitoring committee that included
special rapporteur Michel Mercier. The two Legislative committees adopted powers
attributed to inquiry commissions.
According to article 14 of the law of 1955, if the Government resigns or the
National Assembly dissolves, the law extending the state of emergency becomes
null and void after a period of 15 clear days. As a result of these provisions the state
of emergency also terminates at the end of a parliamentary term. The election or reelection
of the President of the Republic automatically results in the submission of
the outgoing government’s resignation. There is only one exception to this general
rule for the dissolution of associations and de facto groups, which is decided by
decree in application of article 6-1 and whose effects are prolonged after the state of
emergency.
Furthermore, in its decision of December 22, 2015 Cédric D. (decision No.
2015-527 QPC), rendered on account of CE, sect., December 11, 2015, Cédric D.,
the Constitutional Council ruled that, in a case in which the law prolongs the state
of emergency by a new law, “the house arrest measures taken earlier cannot be
prolonged without being renewed.” The result of this case law is that the house arrest
orders made between November 14, 2015 and February 25, 2016, and which the
minister sought to keep in effect for the second prorogation period had to be taken up
again (70 persons were held under house arrest within this framework).
Similarly, in the decision of February 19, 2016 on article 8 of the law of
1955 (CC, decision No. 2016-536 QPC, League for Human Rights), the Council
determined that the measures for the temporary closure and prohibition of meetings
could not, in the case of a new legislative prorogation, be prolonged without being
renewed.
The law also specifies that the administrative authority, notwithstanding the
existence of these criminal sanctions, may automatically implement the measures it
would have prescribed as part of the state of emergency.
The decisions made by the administrative authority after the state of
emergency came into effect on November 2015 led to many litigations and made
it possible to develop consistent case law, with three articles of the law of April 3,
1955 being a matter of constitutionality that was given priority and transferred to the
Constitutional Council by the Council of State.
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