This statement was originally published on hrw.org on 24 November 2015.
France should apply broad new powers granted under an expanded state of emergency law in as narrow and limited manner as possible to avoid trampling on human rights, Human Rights Watch said today. The law expands the government's emergency powers under a 1955 law. It also extends the state of emergency by three months as of November 26, 2015, when the 12 days the government can carry out a state of emergency without a parliamentary extension ends.
The expanded emergency powers allow the government to impose house arrest without authorization from a judge, conduct searches without a judicial warrant and seize any computer files it finds, and block websites deemed to glorify terrorism without prior judicial authorization. These powers interfere with the rights to liberty, security, freedom of movement, privacy, and freedoms of association and expression, Human Rights Watch said.
“The French government should keep people safe and bring those responsible for the horrific attacks to justice, but it also has a duty to protect people's freedom and rights, and not to discriminate against any segment of the population,” said Izza Leghtas, Western Europe researcher at Human Rights Watch. “Parliament should ensure that the sweeping powers it has granted the government are used in the narrowest possible way and for the shortest possible time.”
Parliament passed the new law, which amends and expands the 1955 state of emergency law, with an overwhelming majority in an accelerated procedure on November 20. President Francois Hollande declared a state of emergency following the November 13 attacks in Paris and the suburb of Saint-Denis, which killed 130 people and injured hundreds. Hollande is scheduled to meet United States President Barack Obama today, German Chancellor Angela Merkel on November 25, and Russian President Vladimir Putin on November 26.
Since the state of emergency was declared, Le Monde reported on November 23, French authorities had conducted 1,072 searches without judicial warrants and 139 stops leading to 117 pre-charge detentions; placed 253 people under house arrest; and discovered 201 weapons. Human Rights Watch is not immediately able to assess the necessity or proportionality of the large number of searches and house arrests. But the use of such powers in a context of intense political and public pressure enhances the risk of abuse, Human Rights Watch said.
Over the next three months, the French Parliament should carefully scrutinize how these powers are being applied, in particular in light of the government's duty to respect the principle of proportionality and not to discriminate, and the lack of judicial oversight on the use of the powers. It should also ensure that these measures remain temporary.
The new law grants the French government broad grounds to restrict liberty of movement, and could lead to restrictions on movement that amount to deprivation of liberty. Freedom of movement and the right to liberty are guaranteed under the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR), both of which France has ratified. Under the new law, the interior minister can place under house arrest anyone “against whom there are serious reasons to believe his or her behavior constitutes a threat to public order and security.” The broad discretion for the minister, with no requirement for judicial authorization or review, could quickly lead to abuse.
Under this provision, a person could be confined to their home for up to 12 hours a day, and be required to check in regularly at a police station, and to turn over their passport or other identity document to the police for a certain period. They can also be forbidden to have contact with certain people if “there are serious reasons to believe” that their behavior “constitutes a threat to public order and security.” This provision also threatens the right to private and family life as well as the right of association under the ICCPR and the ECHR.
The law further provides that if the person placed under house arrest had been convicted of a serious terrorism-related offense in the past and finished serving their sentence less than eight years earlier, the interior minister can have that person fitted with a device to monitor their movements, though it requires the person's consent.
The law also enables the interior minister and the prefect – the government representative – in a département to order searches without a judicial warrant at any time of any place, including a private home, “when there are serious reasons to believe that the place is frequented by a person whose behavior constitutes a threat to public order and security.” However, the law bars such searches without warrants on the premises of lawyers, judges, journalists, or members of parliament. The law is silent on the question of the admissibility of materials found under these searches as evidence in any subsequent criminal trial.
The new law also threatens the rights to freedom of expression and to privacy under the ECHR and the ICCPR by allowing the authorities conducting the search to access and copy digital data saved on electronic devices on the premises or accessible from those devices. The law does not specify any safeguards to limit the use, retention, or dissemination of data collected under these expansive search powers, including in situations in which searches did not reveal any connection to wrongdoing.
The law threatens the right to freedom of association, guaranteed under the ICCPR and the ECHR, by allowing the government to dissolve organizations and groups broadly described as “participating in carrying out acts that seriously breach public order or whose activities facilitate carrying out or incite such an activity.” The law specifies that such measures will not end when the state of emergency ends.
It also gives French intelligence agencies the power to carry out surveillance with the broadly worded purpose of “preventing actions aiming to maintain or reconstitute” the organizations or groups dissolved under the law. Should groups not respect the order to disband, their members can be prosecuted.
The interior minister can also take “any measure to ensure the interruption of any online public communication service that incites the commission of terrorist acts or glorifies them.” This provision also lacks meaningful limits and could be read to enable blocking of entire Internet services to restrict access to some speech that “glorifies” terrorist acts, a term that is broadly defined under French law.
Under article 15 of the ECHR and article 4 of the ICCPR, the government has the right to impose restrictions on certain rights, including freedom of movement, expression, and association, during states of emergency, but only “to the extent strictly required by the exigencies of the situation” and must ensure that any measure taken under the law is strictly proportionate to the aim pursued, and non-discriminatory. The government should also ensure that these powers are not applied in a discriminatory manner and do not stigmatize people of a particular ethnicity, religion, or social group.
Any proposal to extend the powers the emergency laws grants to the government beyond three months should be considered by parliament in a procedure that allows for a full debate and the involvement of civil society, Human Rights Watch said.
As required by their obligations under the ICCPR and ECHR, the French government should immediately publicly notify other states parties of any derogation to its obligations to the rights guaranteed under both treaties. It is unclear whether the French government regards the emergency powers as requiring such a derogation.
The United Nations Human Rights Committee, which monitors governments' compliance with the ICCPR, has stressed that such a notification should include “full information about the measures taken and a clear explanation of the reasons for them, with full documentation attached regarding their law.”
“Now more than ever, France should be irreproachable in its respect for human rights,” Leghtas said. “Excessive restrictions would be a gift to those who seek to instil fear, undermine democratic values, and hollow out the rule of law in France and in Europe.”
France's new emergency powers interfere with rights to privacy, freedom of association
This statement was originally published on hrw.org on 24 November 2015.