International Journal on Criminology Volume 3, Number 1, Spring 2015 | Page 24

International Journal on Criminology
leap into action, it is very often the result of an accelerated procedure that considerably
restricts the time available for the reflection and development of arguments necessary in
democratic debate (on this point, see the laws of January 23, 2006; December 21, 2012; and
November 13, 2014); this is not without consequence for the quality of the texts adopted into
law. Lastly, adopting anti-terror laws at breakneck pace does not allow for the thorough and
rigorous assessment of existing laws that would enable us to determine the relevance and
effectiveness of the measures already in force.
Given that the terrorists’ greatest victory would be to imperil the rule of law, states
that respect the rule of law cannot, in the name of fighting terrorism, simply take any measure
they deem appropriate, for this would eventually undermine, and indeed destroy democracy,
precisely in order to defend it (on this issue, see the opinion of the Commission nationale
consultative des droits de l'Homme, dated September 25, 2014, regarding the bill reinforcing
provisions related to the fight against terrorism). Here, the intrinsically repressive measures
that are increasingly placed within the remit of the administrative police are potentially
dangerous if not accompanied by all the corresponding guarantees relating to due process.
Can preventive measures like government bans on leaving or entering the country be
justified merely by a call for greater efficiency in the fight against terrorism (Code de sécurité
intérieure (CSI) [National Security Code], art. L.224-1 ff., and Code de l'entrée et du séjour
des étrangers et du droit d'asile (CESEDA) [Code of Entry, Residence, and Asylum Rights
of Aliens], art. L. 214-1—as stipulated in the Law of November 13, 2014)? Can measures
so harmful to freedom of movement (the ban on leaving the country effectively involves
the withdrawal and invalidation of a person’s passport and identity card) reasonably be
decided by the Minister of the Interior solely on the basis of “serious reasons to believe that
the individual concerned is planning a journey for terrorist purposes?” In practice, will the
argument not rest solely on the information held by the services attached to the Direction
Générale de la Sécurité Intérieure (DGSI) [General Directorate for Internal Security], in
other words, incontestable documents that can, in certain circumstances, be kept secret for
“reasons of national security?” Did the recent, so-called “Tarnac affair” not make clear the
fallibility of information provided exclusively by the services answerable to the Ministry of
the Interior? In order to be described as “serious,” should the Minister's “reasons” not be
backed up by facts and information likely to convince an objective observer? What is one to
make of the willingness to tolerate contradiction, evident in the fact that the observations
of the person concerned are not admissible into evidence until after the written, reasoned
decision of the Minister of the Interior has been given? Likewise, what is one to make of the
provisions setting forth the principle of justifying government bans on movement in and out
of the country. Unless considerations of national security say otherwise (CESEDA, art. 214-
3): doesn't the fight against terrorism intrinsically rest on just such considerations, which
are thus liable to void the reasons of any substance given? And what does this say for the
notion of providing reasons for unfavorable government decisions derived from law No. 79-
587, relating to the justification of administrative actions and the improvement of relations
between the government and the public?
If we substitute “freedom of expression” in this discussion for “freedom of
movement,” the risk of arbitrary government is all the more clear. Can interference with
freedom of expression and the blocking of access to websites that incite or defend acts of
terrorism still be considered a government matter, even when one or more crimes have
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