International Journal on Criminology Volume 4, Number 2, Winter 2016 | Page 94

International Journal on Criminology
During the first period the state of emergency was applied (November 14,
2015–February 25, 2016), of the 350 orders of house arrest given by the minister of
the interior, 303 requests were made to the administrative court. Out of a total of 174
decisions rendered (orders and judgments), only 13 orders were suspended by the
judge hearing applications for interim relief and two orders were nullified by the trial
judge.
In its decision of December 22, 2015 Cédric D., the Constitutional Council
upheld the constitutionality of article 6 of the law of 1955, apart from its provision
related to the placement under electronic surveillance, concerning which it did not
rule.
The litigation of police searches seems less protective because, even though
these measures are the most used by the administrative authority (3,400 police
searches between November 14, 2015 and February 25, 2016), they led to a only
a small number of litigations (a dozen appeals to request compensation for damage
suffered during the searches), especially due to the fact that interim applications were
not particularly effective.
The law of November 20 also allowed law enforcement to copy computer data
from any medium for later use. Nonetheless, in its decision of February 19, 2016,
the Constitutional Council, which upheld the constitutionality of the general legal
scheme of police searches, declared unconstitutional the ability to copy these data
because the law had not provided “legal assurances likely to guarantee a balanced
reconciliation between the goal of the constitutional value of safeguarding public
order and the right to privacy.”
The issue of constitutional stabilization was raised, but fizzled out...
". . . we have to go beyond the emergency situation.
I have thought about this issue a lot. I honestly think that we must develop our
constitution to allow the government authorities to take action against terrorism
that incites war, in accordance with the rule of law.
Our Constitution currently has two specific schemes that are not appropriate for the
situation we are in.
. . . We need to have an appropriate tool to provide a framework for taking
exceptional measures for a certain period without recourse to the state of siege and
without compromising public freedoms” (Francois Holland, speech to parliament,
November 16, 2015).
As part of the presidential speech, a draft constitutional law for the protection
of the Nation (No. 3381) was presented to the National Assembly on December 23,
2015, and included two measures, one concerning the very polemical revocation of
nationality, the other involving the state of emergency.
Article 1 establishes this state of emergency in the Constitution. The goal is
to frame the conditions for using this exceptional scheme, as well as strengthen the
means of action available to law enforcement and the legal certainty of the measures
taken during this period.
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