New French law restricting movement of released terrorists 'unconstitutional'

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In a definitive ruling, France’s Constitutional Council has thrown out legislation adopted by parliament late last month which imposed restrictions on the movement of prisoners released after serving sentences for terrorism-related offences. The ruling by the Council, which found the law to be unconstitutional for its infringement of fundamental freedoms, represents a significant blow for both President Emmanuel Macron’s governing LREM party, and in particular for justice minister Éric Dupond-Moretti, a high-profile defence lawyer until his appointment in early July.

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France’s Constitutional Council has ruled against new legislation adopted by parliament last month which imposed restrictions on the free movement of prisoners released after serving prison terms of five years or more for terrorism-related offences, declaring the move to be unconstitutional.

The Friday ruling by the Council, which is France’s highest authority on constitutional matters, is definitive.

Under the legislation, individuals who had been sentenced to more than five years in prison for terrorism-related offences and who the police and judicial authorities deem to remain “particularly dangerous” after their release from jail, would have been subject to one or more restrictions on their movements over a period of between five and ten years.

These included a ban on meeting certain people and visiting certain places, the wearing of an electronic tag, a requirement that they record their presence at a police station three times per week, and that the location of their home be subject to agreement from a magistrate.

The legislation was adopted on July 27th after its approval by both of parliament’s houses, the Senate, which has a conservative majority, and the National Assembly, dominated by President Emmanuel Macron’s ruling centre-right LREM party. During the debates, Yaël Braun-Pivet, an LREM Member of Parliament (MP)  who was one of the draft legislation’s two sponsors during its passage through parliament, where she presides the National Assembly’s law commission, had told fellow MPs that there was a “known threat” posed by some among from among around 150 prisoners serving terrorism-related sentences due for release over the coming three years.

The legislation had been opposed by France’s National Bar Council, which represents the country’s almost 69,000 lawyers, which described it as adding a “sentence after the sentence” and as being contrary to the principles of a constitutional state. Similarly, the National Consultative Commission on Human Rights (CNCDH), a public body with advisory status, called on the government “to stick to traditional intelligence techniques” and to encourage “reinsertion” into society of former prisoners, which it said was “the only true guarantee for preventing repeat offending”.

Friday’s ruling by the Constitutional Council represents an important blow for the government and its new justice minister Éric Dupond-Moretti, a high-profile and active defence lawyer prior to his appointment in early July, who had described the legislation as a “balanced solution”. Previously, Dupond-Moretti, a controversial figure, notably because of his outspoken verbal attacks against feminists and what he has called “the dictatorship of transparency”, had, in his position as a lawyer, opposed legislation in 2008 which imposed the placement in psychological care of prisoners of serious crimes, such as murder, rape and torture, who were assessed to be exceptionally dangerous.  

It was after the adoption of the new legislation last month that the president (or speaker) of the National Assembly, LREM MP Richard Ferrand, referred the law to the Constitutional Council, requesting its opinion as to whether it represented a “satisfactory reconciliation” between the need for the “prevention of attacks on public order” and the respect of “constitutionally guaranteed freedoms”. In a separate move, a group of socialist senators also asked the Council to opine on the law.

In its ruling, the Constitutional Council recognised that lawmakers can “under certain conditions” take “security measures founded on the particular danger posed by the perpetrator of a terrorist act and aimed at preventing repeat-offending”. But the new law, the Council said, represented a disproportionate violation of fundamental rights – those of the freedom of movement, respect of private life and the right to lead a normal family life – and especially so given that the period of the restrictions can be imposed over many years.

“It is now for the legislator, if it wishes to, to adopt a new measure which meets these constitutional requirements, as soon as possible,” said the Council in a statement released in parallel to its ruling.

MP Yaël Braun-Pivet said she regretted “the censure” of the ruling, but welcomed the fact that the Council had “traced the path to follow” in order to “pursue the work engaged”.

“There is no question of giving up on providing a concrete and operational response to the threat that is posed against our society by certain particularly dangerous individuals who are won over by terrorist ideology,” added Braun-Pivet.

Socialist senator Jean-Pierre Sueur welcomed the Constitutional Council’s decision which he said “totally gave reason” to the opposition he and fellow socialist senators had mounted against the legislation, adding that justice minister Éric Dupond-Moretti had been “very badly inspired to abandon, for his new ministerial cause, what he had previously defended”.

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  • The original French version of this report can be found here.

 

English version by Graham Tearse

 

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