Abstract :
[en] The recent wave of attacks has not failed to spark a debate in Europe on the establishment of a so-called state of emergency. Belgium has not escaped this, in particular because of the attacks in Paris on 13 November 2015 and those in Brussels on 22 March 2016. The city of Brussels also experienced exceptional circumstances from 21 to 26 November 2015. During these days the maximum level of threat was declared on the territory of the capital and its surroundings, the threat of attack having been deemed "serious and imminent" by the Belgian Coordination Body for Threat Analysis (OCAM).
However, Belgian constitutional law does not explicitly enshrine a specific provision concerning a state of emergency. While Belgian constitutional law does indeed mention a "state of war" in Article 167 of the Constitution, there is no temporary regime which could be described as a state of emergency and which would allow a restriction of fundamental rights. Article 187 of the Constitution provides instead that "the Constitution may not be suspended in whole or in part" (Section 1). In other words, security management must be deployed in accordance with the usual constitutional and legal requirements. To enable rapid and coordinated assistance during an emergency situation, plans are therefore drawn up for coordination between various actors, namely the Minister of the Interior, the Minister of Justice, public prosecutors, the Minister of Foreign Affairs, Defence, the intelligence services, the federated entities and the municipalities and provinces. For example, exceptional measures such as the cancellation of artistic performances rest on the shoulders of the mayors within the framework of their police prerogatives, if they consider that the event may represent a disturbance of public order or that it is not possible to ensure security. Such measures must nevertheless be taken in accordance with the fundamental freedoms of the Kingdom.
The events of the last four years, i.e. the attack on the Jewish Museum in Belgium on 24 May 2014, the "Charlie Hebdo" attack on 7 January 2015, the police operation in Verviers on 15 January 2015, and the avoided attack in the Thalys on 21 August 2015, the attacks in Paris on 13 November 2015 and in Zaventem and Maelbeek on 22 March 2016, as well as the above-mentioned lockdown in Brussels, have profoundly changed the paradigm (Section 2) by placing the Belgian State at the forefront of the fight against (and the prevention) of terrorism. Faced with an emergency situation, but in the absence of a sui generis legal framework, the public authorities demonstrated pragmatism in managing the risk of armed actions, relying in part on the goodwill of the various actors who sometimes came under different levels of power in the Belgian federal structure. For example, schools, universities that belong to a certain type of federated entity - Communities - have been closed and public transport, which falls within the sphere of competence of the Regions, has been interrupted. This unprecedented situation, in which the immediate danger assessment called for reactions that were, on the whole, improvised, gave fresh impetus to the debate on the establishment of an emergency mechanism.
At the same time, the ordinary legal environment was disrupted. In a legislative frenzy, the federal parliament changed the legal framework (Section 3) and integrated a new approach to prevent and suppress terrorist activities (Section 4). Starting from the premise that there is no derogatory regime that could be used, this new approach manifests itself in several ways.
Firstly, the legal amendments concern both measures specific to terrorist offences and others which are not confined to this crime, although it embodies its predominant pretext. One can think of the consecration of the presence of a military device in the streets, which has become structural. Secondly, the evolution of the framework for the fight against terrorism also corresponds to a twofold shift, namely, on the one hand, towards the “subjectivization” of criminal law in that it attributes a predominant place to the criminal intent attributed to the author and, on the other hand, that of the “administrativization” of procedures to use the words of the Attorney General of Valkeneer. Thirdly, while Belgium is a federal State which accords an important place to local authorities in safeguarding security on its territory, there is also a centralisation of preventive actions, particularly in the hands of the Coordination Body for Threat Analysis (OCAM), on which the government's action is aligned. Fourthly, even if Belgium did not notify its wish to make use of Article 15 of the European Convention on Human Rights allowing Contracting States to derogate from the obligations of the Convention in exceptional circumstances, the adoption of the new anti-terrorist legislative arsenal was open to criticism in that it reinterpreted and restricted certain fundamental freedoms. In 2017, the Counter-Terrorism Vigilance Committee (T Committee), composed of associations, political representatives and legal professionals, expressed serious reservations about the effectiveness of the measures and, above all, their fears regarding respect for individual freedoms.
The objective of the study is to present the current constitutional framework, as well as initiatives already advanced to reform. Inspired also by the experiences of other States, our reflection will then focus on a critical approach to the absence of a state of emergency in Belgium and the process of perpetuating exceptional counter-terrorism measures in ordinary legislation.
