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Source: US Global Legal Monitor

(Sept. 30, 2020) On August 7, 2020, the French Conseil constitutionnel (Constitutional Council) struck down most of a bill that aimed to impose special security measures on individuals after their release from prison for participating in terrorism-related activities.

This bill, which was first submitted on March 11, 2020, was adopted by the French Parliament on July 27, 2020, after a joint commission of the Senate and National Assembly had resolved a few differences between the versions passed by the two parliamentary chambers. The main purpose of this bill was to create a special regime for individuals who had been convicted of terrorist activities and served their sentences. Under the bill, such persons could have been subjected to one or several of the following requirements:

  • To respond to summons by a juge d’application des peines (a type of magistrate who manages the application of a convict’s sentence) or by the local probation authorities
  • To accept visits from the probation authorities and provide documentation regarding their job situation
  • To inform the probation authorities of any change of residence or employment
  • To notify the probation authorities of any travels of over 15 days, and to give them an account of such travels upon their return
  • To find a job, return to school, or enter into a jobs training program
  • To reside within a designated area
  • To seek prior authorization before any change of employment or residence, or for any travel abroad
  • To eschew engaging in the activity through which they had committed the offense they were convicted of
  • To regularly report to the local police or gendarmerie station, up to three times a week
  • To eschew contact with certain other people, particularly others involved in terrorism
  • To agree to submit to a ban on owning or carrying a weapon.
  • To accept certain health or psychological treatments, or educational courses to acquire the values of good citizenship

Such requirements would have been imposed by a juge d’application des peines following a procedure during which the subject would have been allowed to be represented by a lawyer. These measures could have been imposed for a period of one year, renewable up to five times for subjects originally convicted of offenses punishable by less than 10 years of prison, and up to 10 times for persons originally convicted of crimes punishable by 10 or more years of prison.

The Senate adopted the final text of the bill on July 23, and the National Assembly did the same on July 27. That same day, the president of the National Assembly, in accordance with article 61 of the Constitution, referred the bill for review by the Conseil constitutionnel, France’s constitutional court, established to review the constitutionality of legislation. Groups of over 60 senators and over 60 members of the National Assembly also referred the bill to the Conseil constitutionnel on July 28 and 29, respectively.

In its August 7 decision, the Conseil constitutionnel noted that terrorism presented a grave threat to public security. Therefore, in principle, individuals previously involved in acts of terrorism and still considered possibly dangerous could be subjected to extra security measures to prevent any recidivism. However, such measures would have to be necessary and proportionate to the goal sought, and applied only if there were no other means to achieve the same ends without infringing on the subject’s constitutional rights and freedoms.

The Conseil constitutionnel noted that most of the bill’s proposed measures would potentially infringe on the subjects’ freedom of movement, right to privacy, and right to have a normal family life. As such, they violated articles 2, 4, and 9 of the 1789 Declaration of Human and Civic Rights, which is integrated in the French Constitution by reference. Article 2 of the Declaration guarantees the rights to liberty, property, safety, and resistance to oppression. Article 4 proclaims that “[l]iberty consists in being able to do anything that does not harm others,” and article 9 guarantees the presumption of innocence. In considering whether other, less intrusive measures could perhaps achieve the same goals, the Conseil constitutionnel noted that while the proposed measures would apply after the subject’s release from prison, the law did not require that any steps be taken to increase the subject’s rehabilitation while he/she was still incarcerated. Furthermore, while the special security measures would be imposed for a period of one year, they could be renewed several times without the need to show new evidence that the subject was dangerous.

The Conseil constitutionnel therefore struck down the vast majority of the bill. The only part that was left standing brought minor changes to the Penal Code. This part was signed signed into law on August 10, 2020.

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