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II. Background

The French counterterrorism model has developed over decades of experiences of domestic, binational, and transnational terrorism. Like other European countries, France has a history of internal violence and terrorist acts by extreme left-wing groups (for example, Action Directe) and regional separatist groups advocating independence or greater autonomy in the Basque country, Brittany, and Corsica.¹

The brutal eight-year war that led to Algeria’s independence from France in 1962 was distinguished by extraordinary savagery, including widespread violence against civilians and terrorist bombings in Algeria, as well as widespread torture by French forces. It was in the mid-1980s, however, that France experienced a new form of “de-territorialized” terrorism.² Over a dozen attacks in Paris in 1986 on department stores, trains, subways, and public buildings claimed 11 lives and injured over 220 people. A previously unknown group called the Committee for Solidarity with Near Eastern Political Prisoners took responsibility for the strikes. In 1995 another wave of attacks between July and September—including a bomb at the Saint Michel subway station in Paris—killed 10 and injured over 150 people. French authorities attributed the attacks to the Algerian Armed Islamic Groups (Groupes Islamiques Armees, GIA).

In response to the threat of international terrorism, France adopted a preemptive approach characterized by an emphasis on intelligence-gathering; aggressive prosecution to dismantle terrorist networks in formation; and removals of foreign terrorism suspects and those accused of fomenting radicalization and recruitment to terrorism.³ Indeed, by the time the fight against Islamist terrorism had become an international priority following the September 11, 2001 attacks in the United States, France already had in place perhaps the most developed counterterrorism machinery in Europe.

France is one of only a few Western nations that have prosecuted its citizens or residents formerly held in US military detention at Guantanamo Bay. Seven French citizens were repatriated to France in 2004 and 2005, after spending from two to three years in US military custody. While one was released immediately, six were charged with criminal association in relation to a terrorist undertaking for “integrating terrorist structures” in Afghanistan. These men spent between one and one-and-a-half years awaiting trial in France. In December 2007 the 16^th Chamber of the Paris Correctional Court convicted five of the men and sentenced them each to one year in prison. All free at the time of the verdict, they remained at liberty due to time already served in pretrial detention. The sixth man was acquitted.

French Criminal Justice System

The criminal justice system in France is based on the inquisitorial approach, in which the Office of the Public Prosecutor opens a judicial investigation of a criminal offense but can ask an investigating judge (juge d’instruction) to oversee the investigation with the help of police assigned to him or her for that purpose. The investigating judge is supposed to be an impartial arbiter who seeks to establish the truth, and is entrusted with uncovering both incriminating and exculpatory evidence. He or she can order arrests and wire taps, issue warrants and orders to appear as a witness or produce documents instead, and require the police to conduct any lawful inspection. Prosecutors, defendants, and any civil parties to a criminal case may ask the investigating judge to order particular inquiries, which the judge may authorize or deny.⁴ These decisions may be appealed to the higher Investigative Chamber (Chambre d’Instruction).

In theory, the investigating judge is an impartial arbiter who searches for all relevant evidence, including information that could help the defense.⁵ In practice, investigating judges are often accused of working more to build a solid case against the accused than trying to seek “the truth.”

There are also concerns that there are insufficient checks on their power, to the detriment of the rights of the accused. In 2006 a special parliamentary committee investigating the so-called “Outreau Affair,” which saw 13 people falsely accused of pedophilia, went so far as to consider the suggestion that France should abandon the inquisitorial procedure in favor of the adversarial system used in common law jurisdictions such as the United Kingdom and the United States.⁶ The committee recommended that investigating judges work on cases in “colleges” of three to avoid miscarriages of justice. A March 2007 law implemented this recommendation.⁷

In ordinary criminal cases in France, police may arrest and hold suspects for up to 24 hours, with the possibility of one 24-hour extension, before either releasing them or bringing them before the investigating judge (premiere comparution). Detainees have the right to see a lawyer at the outset of detention. The right to see a lawyer while in police custody was instituted only in 1993. Longer periods of police custody with delayed and limited access to a lawyer are permitted for a number of serious offenses, including drug-trafficking, organized crime, and terrorism (for the latter, see Chapter V, Police Custody in Terrorism Cases).

When a suspect is brought before an investigating judge, the judge can either order the person released without charge or place him or her under formal investigation (known as judicial examination, mettre en examen) if there is “strong and concordant evidence making it probable that [the suspect] may have participated, as perpetrator or accomplice, in the commission of the offenses he is investigating.”⁸ The judge may then recommend to the prosecutor that the detainee be remanded into pretrial detention (detention provisoire).

A separate judge, known as the liberty and custody judge (juge des libertes et de la detention), makes the decision. The investigating judge prepares the committal proceedings, containing the state’s case against the accused, and then transfers it to the prosecutor who will represent the state’s interests in the case before the appropriate trial chamber.

France operates a system of “free proof” in which an offense “may be proved by any mode of evidence.”⁹ The only two restrictions are that the evidence must be obtained in a legal fashion and subject to debate at an adversarial hearing.

Minor felonies (delits)—punishable by up to 10 years in prison—are tried by three-judge panels in Correctional Court (Tribunal Correctionnel). Serious felonies (crimes) are tried by a nine-member jury and three judges in the Court of Assize (Cour d’Assise). Rulings by the Correctional Court may be appealed to the regional Court of appeal (Cour d’Appel), and then to the Court of Cassation (Cour de Cassation), the highest judicial body. Rulings by the Court of Assize may be appealed to another chamber of the Court of Assize, with a 12-member jury and three judges, and then to the Court of Cassation. The Court of Cassation reviews points of law only.