V. Police Custody in Terrorism Cases

French Law and Procedure

French law provides one of the longer periods of police custody-before an individual is taken before a judge and either charged or released-in terrorism cases in continental Europe.[148] Under the French Code of Criminal Procedure (CCP), terrorism suspects may be held for up to six days before being brought before a judge. Standard police custody in criminal investigations is set at 24 hours with the possibility of one extension to 48 hours. In cases involving terrorism suspects, police may request judicial authorization to extend detention to 96 hours, or four days, and to 144 hours, or six days, in certain circumstances.

Police have an additional 20 hours from the official end of police custody to produce the detainee before an investigating judge. Police are not allowed to interrogate the detainee during this period, which is meant to allow only for any necessary travel time.

In practice, a four-day detention period in terrorism investigations is standard; extensions are virtually systematic. The CCP stipulates that the judicial authority-which in practice can be the investigating judge or the liberty and custody judge-must see the detainee before authorizing the extension. Anecdotal evidence suggests that judges do regularly visit suspects in the place of detention before authorizing extensions, for what are usually brief, on-site exchanges.

The power to hold terrorism suspects for up to six days was introduced in January 2006 in cases where there is a serious risk of an imminent terrorist attack or if the complexity of the case and the need for international cooperation impose the need.[149] According to counterterrorism prosecutor Philippe Maitre, this power has been used so far only once, to allow an extension to five days.[150]

Under the Code of Criminal Procedure, terrorism suspects, like all detainees, have the right to be informed of the reason for the arrest, the right to request a medical examination, and a qualified right to inform someone of their arrest.[151] Detainees do not have the right to a medical examination by a doctor of their own choosing, and the prosecutor, on advice from the police officer in charge, may deny the right to inform a third party of the detention if such contact is considered prejudicial to the ongoing investigation.[152] This denial appears to be standard in terrorism cases; none of the individuals we spoke with who had been arrested on terrorism charges were able to make any phone calls during their time in police custody. 

During police custody, terrorism suspects have severely curtailed access to legal counsel. While most suspects have the right to ask to see a lawyer of their choice or court-appointed from the outset of detention, terrorism suspects have access to a lawyer only after 72 hours, or three days, in police custody.[153] If the judge extends police custody by an additional 24 hours before the end of the 72nd hour, first access to a lawyer is pushed back to after the 96th hour, or after four days in custody. The detainee in this case would be able to see a lawyer for the second time 24 hours later, or after five days in police custody. Each visit is limited to 30 minutes, and counsel does not have access to any detailed information about the charges against their client. The lawyer must be given access to the case file before the session with the investigating judge, and anecdotal evidence from numerous interviews with defense attorneys suggests this usually takes place three or four hours before the hearing.

All detainees in police custody in France, regardless of the reasons for their arrest, are questioned without the presence of a lawyer, they are not informed of the right to remain silent, and anything they say may be used against them at trial. While the final police report must list the length of all interrogations, there are no rules establishing time limits on these interrogations or the amount of rest a detainee must have between interrogations.

The same strict rules seriously limiting access to a lawyer apply whether counsel is privately hired or appointed. The Paris bar association (Barreau de Paris) maintains lists of criminal lawyers who volunteer to be "on duty" to assist those detained on criminal charges for the duration of police custody who do not designate a private lawyer. A different lawyer, either another legal aid attorney or a private lawyer, takes over the case as of the first session with the investigating judge (premiere comparution). In terrorism cases, detainees who are unable to hire a private lawyer are assisted from this point on by one of the 12 "secretaires de la conference," an elite group of young lawyers elected each year after a competitive process.

A 2007 law instituting obligatory video- and audio taping of all police interrogations, as well as audio and video recordings of the first hearing with the investigating judge, in serious felony investigations explicitly excluded terrorism, drug trafficking, and organized crime cases.[154] While all interrogations of minors had been recorded since 2002, it was the Outreau Affair that created the momentum for instituting more generalized recording of interrogations in order to better protect the rights of detainees as well as protect the police from false accusations of mistreatment. A special parliamentary inquiry into the Outreau Affair recommended recording all police interrogations, regardless of the nature of the offense.[155] Terrorism, drug trafficking, and organized crime cases were excluded in the end because of the "complexity" of these investigations.[156]

The combination of constraints on the rights of suspects in police custody in terrorism cases-severely delayed and limited access to counsel, no information about the right to remain silent, the likelihood of being unable to notify a third party, and the lack of limits on the duration of interrogations-create a situation in which detainees are denied the right to an effective defense at a critical stage and are at risk of prohibited ill-treatment.

Limited Access to Counsel

The right of all persons accused of a crime to the assistance of a lawyer is a fundamental procedural guarantee. Article 14 of the ICCPR and article 6 of the ECHR stipulate that everyone charged with a criminal offense has the right "to defend himself in person or through legal assistance of his own choosing" or be assigned free legal assistance if necessary. The UN Human Rights Committee and the European Court of Human Rights have considered these provisions applicable to periods before trial, including the period in police custody.[157] The European Court of Human Rights found the United Kingdom in violation of article 6 of the Convention because it denied a detainee access to a lawyer for the first 48 hours of police questioning. The Court held,

[T]he concept of fairness enshrined in Article 6 (art. 6) requires that the accused has the benefit of the assistance of a lawyer already at the initial stages of police interrogation. To deny access to a lawyer for the first 48 hours of police questioning, in a situation where the rights of the defence may well be irretrievably prejudiced, is - whatever the justification for such denial - incompatible with the rights of the accused under Article 6 (art. 6).[158]

The UN Basic Principles on the Role of Lawyers requires that

All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality.[159]

A 2003 European Commission Green Paper on procedural safeguards for suspects and defendants in criminal proceedings reflects these standards in confirming that the right to legal representation "arises immediately upon arrest" and that the suspect is entitled to such representation "throughout the questioning and interview stages of the proceedings."[160]

French tradition and current practice stand in stark contrast to these international standards. The right to see a lawyer in police custody was only introduced in 1993, and remains limited even in ordinary criminal cases. The police custody regime in terrorism cases in particular appears to be organized to be as oppressive as possible with a view to obtaining confessions. "The principle in the French justice system is that there is no defense against the police," according to defense attorney Henri Leclerc. The lawyer's visit after 72 hours "is not very effective … [because] the lawyer doesn't assist his client during the interrogations [and] the person is defenseless," Leclerc contended.[161]

Numerous international human rights authorities have criticized the terms of police custody in France. In 1997 the UN Human Rights Committee expressed concern about "prolonged detention in police custody" and delayed access to counsel under France's counterterrorism legislation, and urged France to bring its laws into conformity with articles 9 and 14 of the ICCPR.[162] Then Council of Europe Commissioner for Human Rights Alvaro Gil-Robles in 2005 similarly recommended reforming access to counsel in order "to ensure that the fundamental rights of persons in police custody are respected."[163] Finally, the European Committee for the Prevention of Torture (CPT), an authoritative human rights body of the Council of Europe that conducts country visits, has repeatedly called on France to allow detainees access to a lawyer from the outset of detention in all of its reports since 1996 (see also below, section "Ill-treatment in Custody").[164]

Defense attorneys spoke of their frustration with the system. Fatouma Metmati, who defended two accused in the Chechen Network case, complained that the delayed access reflected "a distrust of lawyers, how else can you justify it?"[165] Another lawyer with experience defending terrorism suspects, Nicolas Salomon, said of the 30-minute interview, "It's pointless. It's only for ensuring the health of the detainee. We can't see him at the first hour, so we can't even verify if injuries were done at arrest or during garde à vue."[166] The National Bar Association has long advocated access to counsel from the very outset of detention in all cases, and the "active presence" of the lawyer during all interrogations.[167]

The majority of suspects detained on international terrorism charges are assisted, at least initially, by court-appointed lawyers.[168] Several people told Human Rights Watch that the lawyer they saw was of little or no assistance. Abdul N., who has been arrested four times on terrorism charges since 1998 (to date he has not been convicted of any terrorism-related offense) said of one occasion, "I saw a lawyer, but he told me, 'I'm just here as a formality, I can't do anything for you.'"[169] On another occasion, he said the lawyer urged him to admit knowing other individuals arrested in the course of the same investigation if he wanted to get out of police custody.[170]

Several individuals said they didn't see a lawyer at all during their time in police custody. In 2006 Abdul N. was held in police custody for four days and met his court-appointed lawyer for the first time for the hearing with the investigating judge: "We had just five minutes in front of the judge's door. And the same lawyer had to represent the woman [defendant] in the case too."[171]

Rachida Alam, who was arrested along with her husband in the investigation of the so-called Chechen Network, spent four days in police custody without ever seeing a lawyer, and was then released without charge.[172]

Emmanuel Nieto was arrested in early October 2005 on suspicion of plotting attacks in Paris. The arrest was based onstatements allegedly by a man named M'hamed Benyamina while arbitrarily detained in Algeria.[173] Nieto told Human Rights Watch that he said no when he was asked if he wanted to see a lawyer. "They made me sign a piece of paper, but then I changed my mind and I said I wanted one but they grabbed the paper away from me and said it was too late."[174] He didn't see a lawyer until right before his first hearing with the investigating judge, after four brutal days in police custody. The court-appointed lawyer told him it would be best for him to cut a deal.[175]  Abdellah Kinai, who also claims he was psychologically and physically ill-treated in custody, did not see a lawyer until just before the hearing with the judge. Their stories are detailed below.

Right to silence and the right to an effective defense

The right to silence to avoid self-incrimination in criminal proceedings is a generally recognized international standard. The European Court of Human Rights has interpreted article 6 of the ECHR on the right to a fair trial as encompassing the right to remain silent, considered to be intimately linked to the principle of presumption of innocence. As a result, the 2003 European Commission Green Paper on procedural safeguards emphasized that suspects be advised of "any right to silence … of the consequences of making any confession and of the weight to be given in any subsequent proceedings to any answers he makes."[176]

While the right to remain silent under police questioning is generally understood to apply in France because of European Court of Human Rights jurisprudence, it is not explicitly guaranteed in the CCP or the French Constitution.

Notification of the right to silence for those in police custody was incorporated into the French Code of Criminal Procedure in 2000. But it was removed again in 2003 under intense lobbying from law enforcement.[177] Council of Europe Commissioner for Human Rights Gil-Robles criticized France for the decision in a 2006 report: "I regard France's retreat on this point as highly deleterious, since concealing legal rights is never a good thing."[178] The National Bar Association (Conseil National des Barreaux) also supports the right of those in police custody to remain silent.[179]

The Constitutional Court has ruled that delayed access to a lawyer is permissible because police custody is subject to judicial supervision and because this deferment "cannot determine the subsequent course of proceedings."[180] Yet police custody constitutes a critical stage in the criminal investigation. Statements made during police custody are summarized in an official statement, which is admitted into the case file whether signed by the suspect or not. These statements are often used against defendants at trial.

Confessions are not the "queen of all evidence," as a trial judge explained to Human Rights Watch, and convictions may not rest solely on avowals.[181] Defense lawyers can and do challenge the confessions made by their clients in police custody. There is no doubt, however, that incriminating statements made in police custody carry significant weight and influence the "innermost conviction" of the judge.

As one lawyer argued, "Anybody is ready to confess to anything after five days. The only limit is that the police can't put so much pressure as to make someone confess too much. Not many people resist. A confession that hasn't been retracted-that's almost enough to convict, you just need a bit more. A retracted confession-not enough for a conviction, but it's taken into account along with other evidence."[182]

In contrast to the position in police custody, suspects are informed of their right to remain silent in the first hearing with the investigating judge. Lawyers we spoke with generally stressed that they advised their clients at this stage to remain silent. But as one lawyer pointed out, the investigating judge will then ask the suspect to confirm what he or she said in police custody and "this is dangerous because someone can say yes without thinking about it."[183]

 

More generally, the limited amount of time lawyers have to meet with clients and to acquaint themselves with the investigation and the charges against their client places severe restrictions on the lawyer's ability to effectively defend his or her client at a critical stage in the proceedings. Lawyers have no access to the case file until a short time, normally three or four hours, before the first hearing with the investigating judge. As one lawyer explained, "You don't have time to study anything but your client's interrogations. You don't have the time to look at the interrogations of the other people arrested at the same time."[184]

Ill-treatment in Custody

Prompt and meaningful access to a lawyer during police custody is a fundamental safeguard against torture and prohibited ill-treatment. A half-hour meeting with a lawyer three days after arrest is an insufficient safeguard against such treatment. The presence of a lawyer from the very outset of detention and during all questioning is a far more effective protection.

French law provides for medical examinations of detainees in police custody, another safeguard. Under the specific regime for terrorism suspects, detainees may request a medical exam at any time, and judicial officials may order it on their own authority.[185] If detention is extended beyond 96 hours, the exam becomes automatic and obligatory.[186] The primary mission of the forensic doctor is to certify that the detainee's state of health is compatible with continuing police custody.[187]

Our research suggests that the right to access to a medical examination is generally respected and we did not gather evidence of systematic problems. The CPT has commended France for progress in ensuring this right, while noting in successive reports continuing problems such as superficial examinations, failure to record injuries, and lack of respect for confidentiality.[188] A few of the cases of alleged abuse in French custody discussed below raise serious concerns, however. Emmanuel Nieto, for example, was examined by the medical doctor in his cell in the presence of police officers.[189] Abdellah Kinai told us, "When the doctor saw what terrible shape I was in, he said he couldn't do anything for me, he didn't even examine me." Kinai said he had never seen any medical report.[190] The CPT has repeatedly recommended that detainees in police custody have the right to request a second examination by a doctor of their own choosing.[191]

The European Court of Human Rights has consistently underlined the vulnerability of individuals in police custody to abuse at the hand of state officials, and the duty of authorities to protect them from torture and prohibited ill-treatment. In at least three cases involving abuse of detainees in police custody, the Court has found France in violation of article 3 of the European Convention on Human Rights prohibiting torture or cruel, inhuman or degrading treatment or punishment.[192] In all of these cases, one of which involved a French citizen accused of participating in a terrorist attack in Corsica, the Court has stressed the absolute nature of the prohibition under article 3 so that,

The requirements of the investigation and the undeniable difficulties inherent in the fight against crime, particularly with regard to terrorism, cannot result in limits being placed on the protection to be afforded in respect of the physical integrity of individuals.[193]

In a report based on a visit in May 2000, the CPT criticized conditions of detention in police custody. The CPT interviewed two men who had recently been held in police custody for four days on suspicion of involvement in terrorism. Both complained that they had been interrogated day and night, and this was corroborated by police records. The CPT also verified that the counterterrorist police in charge of the interrogations had given explicit instructions in one man's case to withhold a blanket and leave the cell light on at all times.[194]

Human Rights Watch spoke with, or obtained the testimonies of, 13 terrorism suspects subjected to relentless, oppressive questioning and in some cases psychological and physical ill-treatment. Interrogations can take place at any time of the day or night, and there are no rules about the amount of rest a detainee must have between sessions. We heard of sleep deprivation, disorientation, constant, repetitive questioning, and psychological pressure. A pattern of extended questioning and sleep deprivation was corroborated by the details in five police reports examined by Human Rights Watch. These reports must list the beginning and end of every interrogation.

Abdel N., who has been held in police custody four times on suspicion of terrorism, said, "It's worse than prison. We're mistreated the whole time. You don't know if it's day or night. They do it on purpose to break you down. By the third day you'll say no matter what."[195]

Over a four-day period, Emmanuel Nieto was questioned for a total of over 45 hours in 13 different sessions. These included a session from 11:30 p.m. to 4:20 a.m. his second night in custody, and from 11 p.m. to 2:15 a.m. and 3:30 a.m. to 5 a.m. his third night.[196] While in police custody, the longest amount of rest Nieto had between sessions was five hours; the shortest was an hour and fifteen minutes, in the middle of the night. Bachir Ghoumid, one of the defendants in a trial of alleged members of the Moroccan Islamic Combatant Group (GICM, its French acronym) accused of participation in the planning of the 2003 Casablanca bombings said at trial that he had been subjected to 40 hours of questioning during his four-day police custody.[197]  (Forty-five people, including 12 suicide bombers, died in simultaneous attacks in Casablance on May 16, 2003.)

Mohammed Y. was interrogated 17 different times for a total of 34 hours during his four days in police custody.[198] Saliha Lebik endured 13 interrogations for a total of 30 hours during her four days in police custody in December 2002.[199] Rachida Alam was subjected to 12 interrogations for a total of over 25 hours during the three days she spent in police custody in May 2004, including sessions in the middle of the night.[200]

Everyone we spoke with recounted extreme psychological pressure while in police custody. Some mentioned specific threats. Redouane Aberbri, one of the defendants in the GICM trial along with Bachir Ghoumid, says that when the investigating judge visited him before extending his time in police custody, he complained about being handcuffed to a chair and the sleep deprivation. "He didn't want to take it into consideration. He threatened me saying that I still had two more days to talk since I hadn't yet said much, or else he'd send me as a 'gift package to the Moroccans who have different ways of doing things.' What could I say?[201] Human Rights Watch was unable to get a response from the investigating judge about this allegation.[202] Another recounted how an officer told him, "'You're lucky we're in France or I'd put a bullet in your head.' You could feel the hatred against Muslims."[203]

We also learned of four disturbing accounts of physical violence and ill-treatment.

Emmanuel Nieto spent four days in police custody in Orleans being interrogated by officers who told him they were from Paris. He said the abuse started during the first interrogation after he was taken to the police station:

There were four or five of them in the room, one really big guy who was there to make an impression on me, to scare me. Then there were just two. One of them sat at the typing machine and laughed while the other one walked around me and hit me on the head or in the stomach if I didn't answer. He pulled on my ears, hit me in the head. He made me sit on the floor like a dog and he sat over me looking down and hit me on the top of my head. The whole time was like that. Once I took a big blow to the ear, my ear rang.

Nieto described being handcuffed behind the back, grabbed by the throat and pushed up against the wall, and forced to kneel for long periods. He was forced to kneel with his hands shackled behind his back, with his feet in a particular position or the officer would come and press down on his legs with his foot until he signed his formal statement. "One man held one hand behind my back and I signed with the other. A police officer turned the pages. I didn't have the concentration to read it."

According to police records, Nieto was examined twice by a doctor, though he could only remember one visit.[204] He told us the examination took place in his cell in the presence of police officers. He only complained to the doctor about the handcuffs. "I was so tired, and then it's the French system, I wasn't surprised. When they don't have the proof they have to do everything to make you talk … I'm not someone who complains … For us Muslims it's not this life that matters, it's what comes after." The two doctors' certificates do not attest to any physical traces of ill-treatment.[205]

Lahouari Mahamedi was arrested early in the morning of April 22, 2003. He spent four days in police custody. He lodged a criminal complaint alleging he was beaten after the medical examination and that he was denied a second examination he requested. He reported this to the investigating judge. An examination conducted on April 26, 2003, in Fresnes prison, where he had been remanded into pretrial detention, revealed several areas of localized swelling filled with blood (hematomas) and a bruise (contusion) on his temple. His wife, Virginie Geneix, who was held in police custody for four days as well, said she saw him at one point in his cell, with blood on his head.[206]

Mahamedi's lawyer lodged a complaint against four DST officers and one cell guard on April 5, 2006. An investigating judge was assigned to investigate the allegation, and apparently took testimony from some of the officers who interrogated Mahamedi, but as of the end of May 2008, no significant progress had been made in the investigation.[207]

Abdellah Kinai, 54 years old at the time of his arrest, says he was repeatedly beaten in police custody following his arrest in May 1998:

There were six of them hitting me, while the others held me, their captain hit me in the eyes with my big watch, saying do you use this to make bombs? Confess! Confess! Confess! They made me sleep on the cement floor, and hit me with their feet and fists, I was exhausted, hadn't slept, hadn't eaten, and hadn't washed, no stop to the interrogations. And then they asked me to sign declarations I hadn't made, with threats …

I could barely see, my eyes were swollen from all the hits … I asked to see a doctor at the beginning, they refused, then a doctor came, when he saw my state he said, "I can't do anything for you," and he left. I was transferred to La Santé prison after 5 days in a lamentable state, the prison doctor was at my bedside for three days …

I'm just an old Muslim who wants to practice his religion in peace. I'm exiled, without my family, old and sick, I didn't do anything to anyone.[208]

Kinai claims the forensic doctor did not examine him, that he never saw a medical certificate, and that his court-appointed lawyer recommended against bringing suit for ill-treatment because it could prejudice his case.

Tlili Lazhar was arrested in Marseilles in October 2002, and convicted in December 2004 of participation in the plot to bomb the Christmas market in Strasbourg. He was extradited to Italy in connection with an Italian terrorism investigation in November 2006. He told Italian investigators he had been abused in police custody in France:

When I was arrested in Marseilles, I spent five days without being able to talk to my lawyer … In those first four days I was hit during the interrogations. In particular, during the interrogations conducted by the DST in Paris. These interrogations always took place with me sitting on a chair with my hands tied behind my back and tied to the chair. During these interrogations the head of the police in Paris hit me. The first time, I was hit three or four times really hard, and then five or 6 punches in the face, and the beatings came whenever I didn't give them the answer they wanted. On that first occasion I bled from my mouth and I stayed with my face covered in blood until I was taken back to my cell … The second time, I was hit and punched during the interrogation, always by the head of the DST in Paris … The third time I was hit by the same person while he interrogated me …[209]

The Italian investigating judge Guido Salvini noted that "these interrogations were interrupted to allow a doctor to certify that the detainee's health was compatible with the ongoing arrest measure" and concluded that "[i]f confirmed, the behavior denounced by Tlili … would not only be contrary to human rights principles as well as counterproductive in an ethical sense to the fight against terrorism, but would certainly constitute a crime according to the criminal code of any European country."[210]

In May 2007, the Milan Prosecutor's Office asked the Italian Justice Ministry to forward a note to French authorities reporting Lazhar's allegations of ill-treatment so the French prosecutor's office could evaluate whether to open a criminal investigation. In January 2008 the Paris prosecutor's office informed their Italian counterparts that the statute of limitations (three years in these cases) had expired and no public action was possible.[211]

The CPT has repeatedly recommended that persons taken into custody in France have access to a lawyer from the outset of detention, that the lawyer be present for all police interrogations, and that no time limit be set on lawyer-detainee consultations. Indeed, while the CPT acknowledges that it may be necessary, for as brief a period as possible, to deny a detainee the right to a lawyer of his or her own choosing, the Committee concluded that "it is difficult to conceive of a convincing argument capable of justifying the total refusal of the right of access to a lawyer for three days."[212]

A law adopted on October 30, 2007, created an independent monitoring body for all places of detention in France: the "General Inspector of Places of Deprivation of Liberty." This body complies with the requirements of the Optional Protocol to the Convention Against Torture, which France has signed but not yet ratified.[213] The new monitoring body, which at this writing was not yet operational, will have the authority to visit, among other places of detention, all facilities used for police custody, and conduct private interviews with any detainee.[214] Access may be denied for serious reasons relating to national defense, public security, or "serious troubles" in the place of detention.[215]