Derogations to the European Convention on Human Rights in times of emergency : a compatibility assessment of French anti-terrorist legislations with the European Court of Human Rights’ requirements (2015-2017)

Abstract

Through the successive occurrence of terrorist attacks and the COVID-19 pandemic, European democracies resorted massively to emergency powers in the past years. A state of emergency is a security-centred regime that allows governments to put the protection of human rights on hold temporarily. At the European level, certain provisions of the ECHR could impede this response. Thus, a system of derogation is provided for in Article 15, allowing states to withdraw from their obligations temporarily, in a limited and supervised manner. In the aftermath of the Paris terrorist attacks, the French government derogated from the ECHR to implement their state of emergency. From the 20th of November 2015 to the 1st of November 2017, the state emergency was extended six times. This study will focus on the highly contested house arrest and administrative house searches during this emergency regime. Through the recollection of the ECtHR's legal framework on the conditions of derogation in times of emergency, this research aims to assess the compatibility of such measures with the object and purpose of derogations to human rights. By comparing the French anti-terrorist legislative arsenal with the criteria of the European Court, the arbitrary nature of the French regime will be emphasised. This research demonstrates that a state can be compliant with the ECHR, while at the same time being incompatible with its essence. This research's background reflects on the effectiveness of the ECtHR's supervision in times of emergency.