Improve Criminal Justice Safeguards, Provide Legal Counsel for Terror Suspects
In its effort to fight terrorism, France routinely arrests and prosecutes people for being associated with possible terror suspects, undermining international fair trial standards, Human Rights Watch said in a new report released today.
“Using the criminal justice system is the right way to fight terrorism,” said Judith Sunderland, Europe and Central Asia researcher at Human Rights Watch. “But prosecuting people because of who they know and what they think sacrifices basic rights, and that is wrong in principle and dangerous in practice.”
The 84-page report, “Preempting Justice: Counterterrorism Laws and Procedures in France,” looks at how France uses a vaguely defined ‘terrorism association offense’ to arrest large numbers of people based on minimal evidence. Human Rights Watch documented credible allegations that terrorism suspects are subjected to oppressive questioning in police custody, linked to a policy that delays a suspect’s access to a lawyer. Many suspects go on to spend long periods in pre-trial detention. Human Rights Watch talked to two dozen people caught up in terrorism investigations and trials, and conducted interviews with counterterrorism officials and judicial authorities.
The lack of appropriate safeguards within the criminal justice system puts France on the wrong side of human rights law.
France is renowned for its preemptive criminal justice approach to countering terrorism. Specialized prosecutors and investigating judges work closely with police and intelligence services to break up alleged networks before they commit a terrorist attack. But reliance on the broad offense of “criminal association in relation to a terrorist undertaking” means that large numbers of people are arrested on the basis of minimal evidence and detained for extended periods. Prosecutions are often based on intelligence material, including from countries with poor records on torture, which defendants cannot effectively challenge.
“France is too eager to set aside rights for the sake of efficiency,” said Sunderland. “To be a real leader, France should uphold rights while confronting terrorism.”
Human Rights Watch will discuss its findings and recommendations during a round-table on human rights and the fight against terrorism in Europe at the Third World Forum on Human Rights in Nantes, France, on July 2.
Safeguards in police custody are a particular concern. Terrorism suspects can be held for up to six days in police custody. Suspects can only see a lawyer after three days of police questioning, undermining the right to an effective defense and putting detainees at risk of ill-treatment. When they do finally see a lawyer, the visit is limited to 30 minutes and the lawyer usually knows almost nothing about the reason for the arrest. By law, police do not have to tell suspects that they have the right to remain silent, and anything they say can be used against them if charges are filed.
Rachida Alam, 34, was arrested along with her husband in May 2004. She was subjected to 25 hours of interrogation during her three days in police custody without once seeing a lawyer. A diabetic, Alam had to be taken to the detention facility’s hospital three times.
Human Rights Watch interviewed suspects who said that sleep deprivation, disorientation, constant, repetitive questioning, and psychological pressure are common in police custody. Human Rights Watch also documented credible allegations of physical abuse.
Emmanuel Nieto, 33, was arrested in October 2005 largely on the basis of statements made by a man detained arbitrarily in Algeria. Nieto claims he was subjected to physical abuse at the hands of the police during his four days in custody, including being punched, forced to kneel for long periods of time, and grabbed by the throat. He was questioned for a total of 45 hours in 13 different sessions.
Suspects charged with terrorism offenses are usually remanded to long periods of pre-trial detention. A reform from 2001 allowing decisions on custody to be made by a separate “liberty and custody” judge has made little difference in limiting pre-trial detention in such cases.
The breadth of the terrorism association offense can lead to a conviction based on a low standard of proof and weak evidence such as that suspects know each other, are in regular contact, or share particular religious and political beliefs.
Interviews with French counterterrorism officials, terrorism suspects and their families, and defense lawyers suggest that France’s approach risks alienating Muslims, potentially radicalizing individuals, and eroding trust in law enforcement and security forces. Neighbors are less likely to tip off the police about suspicious behavior if they don’t believe the accused will be treated fairly.
“Sarkozy has called the fight against terrorism a ‘battle of ideas,’” Sunderland said. “The way to win that battle is to ensure that countering terrorism doesn’t come at the expense of the human rights of suspects.”
The report contains concrete recommendations to the French government to strengthen safeguards in the criminal justice system, including:
- Making the offense of criminal association in relation to a terrorist undertaking more precise and requiring proof of intent to participate in a plan to commit terrorist acts;
- Improving safeguards in police custody, in particular access to a lawyer from the outset of detention and during all interrogations;
- Reinforcing the role and independence of the “liberty and custody judges;” and
- Ensuring that evidence obtained under torture and ill-treatment, including from third countries, is inadmissible in any criminal proceedings.