credits for people sentenced for terror offences; extending prison sentences from twenty to thirty years
for some offences; legalising video surveillance in cells within prisons. The latter provision, a breach of
dignity and invasion of privacy, has been adopted in fairly general terms for a specific prisoner and may,
in the future, apply under a number of circumstances. In this regard, the CGLPL reiterates its systematic
opposition to this arrangement which should not become more commonplace, instead applying under
exceptional circumstances only, as a last resort, for the purposes of protecting the person in question
rather than to meet the expectations of public opinion.
What this shows is that 2016 was the year in which, in the tragic context of unprecedented terror
attacks on French soil, legislative reform was leveraged as a counter-attack: in reaction to the ever heavier
blows that rained down, laws were passed that reined in fundamental rights to an increasing extent. Does
the risk of sacrificing fundamental freedoms and values become inevitable if we are to prove we fully
grasp the implications of the current tragic circumstances? I do not believe it does.
This reckless way of thinking is unfortunately not new: it only leads to things escalating out of
control. It is no secret that we get used to measures decided in exceptional times gradually becoming
established as standard protocol, without us noticing, and forming part of the repressive apparatus without
ever coming under scrutiny again. Remember that, as early as 1986, after a spate of attacks, an exceptional
regime was established, which has since been shored up by a dozen or so texts, from the Act of 22 July
1996 to the Act of 23 January 2006. More recently, the Act of 13 November 2014 has criminalised an
individual terror undertaking, and bestowed additional powers on the Executive. The January 2015 attacks
were followed, on 24 June 2015, by the passing of the Intelligence Act which authorises the use of new
surveillance devices.
Ever since the controversy surrounding the adoption of the so-called "Security and Freedom" Act
of 2 February 1981, the right balance between security requirements and the defence of individual
freedoms has been at the top of the public debate agenda. And yet this issue took a new turn in the wake
of the 11 September 2001 attacks. The right to security has gained the upper hand over individual
freedoms in terms of priority, as if fundamental rights had become a luxury we can no longer afford in
these difficult times.
As a sign of the times, it has become commonplace to criticise an international body that is
nevertheless essential to democracy – the European Court of Human Rights, set up in 1959 within the
context of the Council of Europe – by implying that it is meddling in the affairs of the national ruling
parties. What have we not heard certain political leaders uttering these past few months? Some have been
quick to maintain that if the European Convention on Human Rights did not allow the administrative
detention of individuals flagged on the S-list, State-security register, an exoneration therefrom would have
to be obtained...
It is necessary to restate the fact that, today, quite the reverse is true: first, that, in these troubled
times, the European Court of Human Rights must exercise even more vigilance in a context where
fundamental rights and freedoms find themselves under serious threat. And second, that consideration
must be given to States better abiding by the decisions of this Court.
There should be no choosing between security and freedoms. This approach is toxic. As Mireille
Delmas-Marty, Honorary Professor at the Collège de France and Chair of the Scientific Committee set
up at the CGLPL, wrote in her most recent work 1, "Security without freedom leads to totalitarianism, while freedom
without security drags the world into chaos".
What strikes me as even more serious is another concept that is challenging the foundations of
criminal law today: that of "dangerousness". The preventive detention measure, introduced by the Act of
25 February 2008, has, for the first time, erased the objective link between crime and punishment by
henceforth making it possible to extend the imprisonment of someone at the end of their sentence, for
1
Aux quatre vents du monde, Le Seuil, 2016.
10