International Journal on Criminology Volume 4, Number 2, Winter 2016 | Page 85

The Legal Scheme of Exceptional Circumstances
This situation brings about derogations first for the rules of jurisdiction:
-issuing a decree instead of a law (CE, April 16, 1948, Laugier);
-delegation of powers in violation of the procedure (CE, June 26, 1948,
Viguier);
-individuals substituting themselves proprio motu for the administration
and acting in its place (theory of the de facto public servant: CE, January 7,
1944, Lecoq: levying taxes; CE, March 5, 1948, Marion: requisition of food
stocks).
Then for essential procedural requirements under normal circumstances:
-requisitioning wheat without the ad hoc form in 1940 (CE, November 9,
1945, Agricultural cooperative company “L’Union agricole”);
-replacement of the mayor without complying with the Code of
Municipalities (CE, May 16, 1941, Courrent);
-non-communication of the file (CE, June 28, 1918, Heyriès);
As well as substantive rules:
-infringement of the freedom of movement (CE, February 28, 1919,
Dames Dol and Laurent);
-infringement of individual freedom (CE, March 27, 1952, Dame de la
Murette);
-ban on the export of arms (CE, January 14, 1959, French armament
company);
Obviously these derogations ceased as soon as the exceptional
circumstances ended (CE, May 19, 1944, Idessesse).
At the same time, textual schemes exist, based on constitutional and legislative
provisions, the emergency powers of which are less controlled by a judge.
§2 Textual Schemes
(A) Article 16 of the Constitution of October 4, 1958, or the expression of the
sovereignty in the state
This is where the clearest illustration of Roman-style “dictatorship” for
safeguarding the public comes into play. We know that General de Gaulle personally
sought for the introduction of this provision into the Constitution, so that the head of
the government would have a tool allowing him to deal with a situation like that of
June 1940, which had affected him, when President Lebrun resigned, since he lacked
any legal instrument when faced with the political crisis and the war.
Article 16 of the Constitution of October 4, 1958 includes a provision
for “emergency powers” granted to the President of the Republic, in his quality
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