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8 juillet 2016

Search of premises under the state of emergency

6th of July 2016 – Opinion (Avis contentieux)

> french version

6th of July 2016 – Opinion (Avis contentieux)*

 Key points:

•    Searches carried out under the state of emergency are only possible if there is serious cause to believe that a person who is a threat to public safety is on the premises.

•    The administrative judge examines the probable cause provided for the search warrant.

•    Persons affected by such a search shall be compensated if the action was illegal, or if misconduct occurred in its execution.

•    Other persons may be compensated if the search results in damages, even if the State services acted without fault.

The state of emergency in effect since the 14th of November 2015, pursuant to Article 1 of French Law dated the 3rd of April 1955, confers power upon the minister and the prefects (préfets**), under certain conditions, to issue administrative search warrants without the authorisation of a judge.

A request for an opinion (avis contentieux) was introduced before the Conseil d’État (Council of State), according to the procedure stipulated in Article L. 113-1 of the French administrative law code. This procedure enables administrative tribunals and courts of appeal to submit a new question of law to the Conseil d’État through a request, in the event that the question raises a serious difficulty and occurs in numerous legal disputes. The Conseil d’État then examines the question within three months.

In the framework of this request for an opinion, the Conseil d’État, pursuant to the request made by the administrative tribunals of Cergy-Pontoise and Melun, provided clarification on several points in regard to these searches carried out under administrative law.

Part of the clarification concerns the legality of search measures under administrative law:

An administrative search can only be ordered if there are serious reasons to believe that the premises in question are frequented by a person whose behaviour constitutes a threat to public safety and order.

The Conseil d’État noted that the administrative judge must verify the probable cause justifying the measure, and determine the necessity of the search and the proportional appropriateness of the response, with regard to the information available to the authorities when the decision was made.

The Conseil d’État held that a search warrant must be justified by the statement of the reasons that led the administrative authority to issue the warrant. The decision must indicate the place and the starting time of execution of the search warrant. However, the sufficiency of the justification must also be assessed in light of the urgency of action required and of the particular circumstances of each case.

The Conseil d’État also specified the applicable compensation regime:

When a search is illegal, in particular when there is no credible evidence that raises the suspicion of a threat to public order, or if the measure is disproportionate with regard to the risk, this is a fault rendering the State liable for damages caused by the action.

Furthermore, even if the search is legal, wrongful acts may be committed in the execution of the warrant (forcing open a door without good reason, use of restraint or disproportionate property damage, minor children treated without concern for their particular vulnerability, etc.). Such misconduct engages the liability of the State, which must compensate victims for the consequences.

However, if no fault or misconduct occurs, the persons affected by the search warrant are not entitled to compensation for the consequences of the search. This is not true for third parties, which shall be compensated even if no misconduct occurred, in application of the principle of equitably sharing public costs among citizens. For example, the owner of premises subject to a search warrant, who does not have any ties to the persons suspected of posing a threat to public safety other than a rental contract, shall be compensated for damage to his property, even if the search was legal and the police services were not at fault.

*The avis contentieux rendered by the Conseil d’État is a response to the legal question raised but does not decide the outcome of litigation which is pending before the tribunal or the court. (Translator’s note)

**The préfet is the State’s designated representative in a department or region, in charge of national interests, administrative checks and the respect of law. This includes coordination of the police and gendarmerie forces, handling major crises and emergency defence procedures. (Translator’s note)