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France: State of Emergency Extended to July 2017

(Dec. 29, 2016) On December 15, 2016, the French Parliament adopted legislation extending the “state of emergency” to July 15, 2017. (Loi n° 2016-1767 du 19 décembre 2016 prorogeant l’application de la loi n° 55-385 du 3 avril 1955 relative à l’état d’urgence (1) [Law No. 2016-1767 of 19 December 2016 Extending the Application of Law No. 55-385 of 3 April 1955 Regarding the State of Emergency (1)], LEGIFRANCE.) The law was signed by President François Hollande on December 19, 2016.  (Id.)

The new law amends and applies the provisions of a 1955 law on the state of emergency. (Id.; Loi n° 55-385 du 3 avril 1955 relative à l’état d’urgence [Law No. 55-385 of 3 April 1955 Regarding the State of Emergency] (as amended up to Dec. 21, 2016), LEGIFRANCE.) The 1955 law defines the state of emergency and the extent to which it broadens the government’s powers.  It was invoked by a presidential decree on November 14, 2015, the day after 130 victims died in a series of coordinated terrorist attacks in Paris, including the attack on the Bataclan theater.  (Décret n° 2015-1475 du 14 novembre 2015 portant application de la loi n° 55-385 du 3 avril 1955 [Decree No. 2015-1475 of 14 November 2015 for the Application of Law No. 55-385 of 3 April 1955], LEGIFRANCE.)

The French Parliament adopted a law confirming the decree a few days later, declaring a state of emergency for an initial period of approximately three months, as of November 26, 2015. (Loi n° 2015-1501 du 20 novembre 2015 prorogeant l’application de la loi n° 55-385 du 3 avril 1955 relative à l’état d’urgence et renforçant l’efficacité de ses dispositions (1) [Law No. 2015-1501 of 20 November 2015 Extending the Application of Law No. 55-385 of 3 April 1955 Regarding the State of Emergency and Reinforcing the Efficacy of its Provisions], LEGIFRANCE.) This initial period of three months was extended several times, with the most recent law marking the fifth such extension; France has thus officially been under a continuous state of emergency since November 2015.  (Patrick Hertzog, France: prolongation de l’état d’urgence jusqu’en juillet 2017 [France: Extension of the State of Emergency Until July 2017], RFI (Dec. 10, 2016).) The latest extension will last until July 2017, in order to cover the period of the upcoming two-round presidential elections, which are to take place on April 23 and May 7, 2017, as well as the legislative elections that are to occur on June 11 and 18, 2017.  (Id.)

State of Emergency Law Provisions

The state of emergency restricts certain civil liberties and expands the executive government’s powers in order to deal with a public disaster or a serious threat to public order. (Etats d’urgence et autres régimes d’exception [States of Emergency and Other Rules of Exception], VIE-PUBLIQUE.FR (French administrative services website) (May 23, 2016).) The most significant provisions allow prefects or the Minister of the Interior to limit or prohibit traffic in certain places, to prohibit certain public assemblies, to temporarily close certain public spaces, to requisition private property or services, to prohibit certain persons from staying in French territory, to put people under temporary house arrest, and to issue “administrative” search warrants.  (Id.; Loi n° 55-385 du 3 avril 1955, arts. 5, 6, 6-1, 8, & 11.)

Whereas regular procedure requires a normal search warrant to be authorized by a judge, an “administrative” search warrant is issued by a prefect or by the Minister of the Interior without prior judicial input. However, law enforcement authorities need to obtain a judge’s authorization before being able to legally exploit any evidence or information seized during an administrative search. (Loi n° 55-385 du 3 avril 1955, art. 11.)  The state of emergency has resulted in French authorities conducting over 4,000 administrative searches between November 2015 and December 2016, and 95 people were under house arrest as of December 10, 2016.  (Hertzog, supra.)