France Derogates from ECHR in the Wake of the Paris Attacks

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On 24 November, France filed a formal notice of derogation from the European Convention on Human Rights with the Secretary-General of the Council of Europe. The notice is available here (and is reproduced in full below), while the French legislation referred to in the notice is available here. As far as I could tell from the UNTC website, France has not (yet) derogated from the ICCPR. The state of emergency in France has been used even with respect to issues that have no bearing on terrorism, for example to curb climate change protests in Paris. The emergency powers have been criticised on civil liberties grounds, e.g. by Human Rights Watch. It seems likely that they will be at issue in litigation before French domestic courts and before the European Court in Strasbourg. In that regard, the derogation notice is remarkably vague and unhelpful, merely stating that some of the emergency measures ‘may involve a derogation from the obligations’ under the ECHR, without explaining which measures exactly do, in fact, require a derogation and to what extent, let alone why precisely were those specific measures strictly required by the exigencies of the situation. What Strasbourg will make of this rather pro forma derogation if and when a relevant case comes before it is anyone’s guess.

Declaration contained in a Note verbale from the Permanent Representation of France, dated 24 November 2015, registered at the Secretariat General on 24 November 2015 – Or. Fr.

The Permanent Representation of France informs the Secretary General of the Council of Europe of the following:

On 13 November 2015, large-scale terrorist attacks took place in the Paris region.

The terrorist threat in France is of a lasting nature, having regard to information from the intelligence services and to the international context.

The French Government has decided, by Decree No. 2015-1475 of 14 November 2015, to apply Law No. 55-385 of 3 April 1955 on the state of emergency.

Decrees No. 2015-1475, No. 2015-1476 and No. 2015-1478 of 14 November 2015 and No. 2015-1493 and No. 2015-1494 of 18 November 2015 have defined a number of measures that may be taken by the administrative authorities.

The extension of the state of emergency for three months, with effect from 26 November 2015, was authorised by Law No. 2015-1501 of 20 November 2015. This law also amends certain of the measures provided for by the Law of 3 April 1955 in order to adapt its content to the current context.

The texts of the decrees and laws mentioned above are attached to this letter.

Such measures appeared necessary to prevent the commission of further terrorist attacks.

Some of them, prescribed by the decrees of 14 November 2015 and 18 November 2015 and by the Law of 20 November 2015, may involve a derogation from the obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms. I would therefore kindly request you to consider that this letter constitutes information for the purposes of Article 15 of the Convention.

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