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IV. Criminal Association in Relation to a Terrorist Undertaking

The particularity of the law is that it enables us to prosecute individuals involved in terrorist activity without having to establish a link between that activity and a specific terrorist project. That's the big difference with the situation abroad where you have to have a link to a specific project. This text allows us to take action well ahead of the threat and to move against clandestine support networks or logistical support for these organizations.

—Jean-Louis Bruguière, then chief counterterrorism investigating judge³⁹

This chapter examines five related concerns arising from the association de malfaiteurs offense. First, the offense lacks legal precision, making it difficult for individuals to know what conduct is prohibited, and giving too much latitude to law enforcement authorities for arbitrary action. Second, decisions to arrest suspects and place them under formal investigation are based on a low standard of proof and an approach that favors casting a wide net. Third, there is a presumption in favor of pretrial detention, despite decisions being taken by a separate “liberty and custody judge,” with suspects subject to lengthy periods of pretrial detention while judicial authorities pursue complex investigations with multiple suspects. Fourth, the prominent use of intelligence material in judicial investigations, in the context of the close links between judges and the intelligence services, raises concerns about procedural fairness and reliance on evidence obtained from third countries where torture and ill-treatment are routine. Finally, some convictions appear to be based on weak evidence.

Lack of Legal Precision

As already noted in Chapter III, the French Criminal Code defines association de malfaiteurs as “the participation in any group formed or association established with a view to the preparation, marked by one or more material actions, of any of the acts of terrorism provided for under the previous articles.”⁴⁰ The elements of the crime, as developed in jurisprudence, include: the existence of a group of several people united in a collective criminal purpose; each member must have full awareness of this purpose and the fact that it is a criminal undertaking; and this purpose must be demonstrated through one or more material acts. There is no requirement that any of the participants take concrete steps to implement execution of a terrorist act.

From its inception, the definition of association de malfaiteurs has raised considerable concerns about the lack of legal precision. The well-established principle of legality, enshrined in article 7 of the European Convention on Human Rights, requires that criminal laws be sufficiently clear and well-defined so that people are able to regulate their conduct to avoid infringement and to limit the scope for creative judicial interpretation by the courts.⁴¹

Human Rights Watch notes that the then European Commission of Human Rights rejected as inadmissible a 1997 complaint alleging, inter alia, that the definition of association de malfaiteurs violated article 7 of the European Convention.⁴² This decision is based on Criminal Code article 421-1—establishing specific acts of terrorism such as murder, kidnapping, and unlawful weapons possession when committed with intent to seriously disturb the public order through intimidation or terror—and article 450-1 that provides a general definition of association de malfaiteurs in relation to any crime. Article 421-2-1 establishing association de malfaiteurs in relation to a terrorist undertaking as an autonomous terrorist act had not been inserted into the Criminal Code at the time of the acts at issue in this case.⁴³

In a 1999 report, “Paving the Way for Arbitrary Justice,” the International Federation for Human Rights (Federation Internationale des Droits de l’Homme, FIDH) called article 421-2-1 “open-ended” and concluded that it lent itself to “arbitrary interpretation and implementation”:

The intention of the article is quite clear: the investigating and prosecuting authorities … are statutorily absolved from any duty to link the alleged participation with any actual execution of a terrorist offense or even a verifiable plan for the execution of such a plan…. [L]ittle or no effort seems to have been made in the context of the legal prosecutions of the cases that have been drawn to our attention … to establish precisely which terrorist act, let alone which category of terrorist act, was allegedly being prepared … That failure to concretize the alleged object of the association or conspiracy inevitably allows almost any kind of “evidence” however trivial to be invested with significance.⁴⁴

Both the letter of the law and the jurisprudence establishing an expansive interpretation of association de malfaiteurs remain unchanged since the FIDH report, and Human Rights Watch research suggests that the charge continues to be used to arrest, detain, and even convict on the basis of weak evidence.

Counterterrorism prosecutor Philippe Maitre explained that the association de malfaiteurs statute criminalizes the preparatory acts that are the furthest from the actual commission of a terrorist act. Drawing three concentric circles on a piece of paper, Maitre identified the central circle as the terrorist act, the surrounding circle as direct complicity—acts that immediately and directly contribute to the commission of the crime—and the outer circle as any and all acts, no matter how removed in time and space, that have contributed to a terrorist enterprise. Even if these acts themselves are not crimes, “the mere fact of having participated in an enterprise is punishable behavior. When it comes to terrorism the consequences are so serious that any behavior that revolves around this objective is criminalized.”⁴⁵

Lack of precision in the law means there is no clarity as to what behavior is likely to give rise to a criminal sanction, and speech and association that would normally be protected under international human rights law—no matter how offensive—can be used as evidence of criminal intent.

The requirement that a law is formulated with sufficient precision to enable an individual to regulate his or her conduct, is relevant not only for article 7, but also because of the impact that the law could have on the legitimate exercise of rights of association, expression, religious freedom, and personal life (articles 8 – 11 of the European Convention on Human Rights). These rights are not absolute and may be subject to lawful interference, but this interference can be arbitrary where overly broad laws give undue discretion to authorities or lack adequate safeguards in how that discretion is exercised.⁴⁶

Our research indicates that the interpretation of the association de malfaiteurs statute and the conduct of terrorism investigations raise concerns about illegitimate interference with these protected rights, in particular freedom of expression and freedom of association. Unlike investigations into violent Basque separatism—with ETA as a structured organization with clearly identifiable goals and tactics—most investigations into alleged Islamist terrorist activity in France are based on mapping of networks of contacts. This can lead to the arrest and indictment of family members, friends, neighbors, members of the same mosque, coworkers, or those who frequent a particular restaurant. Similarly, there appears to be too much scope for criminal action to be undertaken against individuals who share extremist views and may even express support for Jihad, for example, but who have not taken any identifiable steps toward engaging in terrorist violence.

A liberty and custody judge we interviewed referred to association de malfaiteurs as an “intangible” and “difficult to define” offense with “very broad constitutive elements”, adding that in many cases involving Islamist terrorism the only element is contact among a group of people. The judge described a case in 2007 involving a group of six or seven young Muslim men who talked about going to Iraq to fight. “They would get together, and some of them had contact with someone who had actually gone to Iraq. And so you ask yourself if this is a network. You wonder if the fact of having these contacts [means] maybe there are other things behind.” ⁴⁷ The judge sent most of them into pretrial detention, while two or three were placed under judicial supervision. The judge does not know what has happened with the case and no longer has the dossier.⁴⁸

A former JLD described the kinds of cases he saw: “Young Frenchmen from the Maghreb, between 20 and 25 years old, who dreamed of finding an Islamic ideal. Small fry, just these young guys with posters of Bin Laden in their bedrooms. They were accused above all of going to training camps somewhere, nothing in France, which is already problematic. You send people to prison in counterterrorism matters for very weak reasons. There was usually some kind of evidence, but of what? You had numbers in cell phones, trips, intense religiousness, consultation of certain websites …”⁴⁹

Low Standard of Proof behind Decision to Arrest

The goal is to have as many ongoing investigations as possible to allow for coercive measures like wiretaps and above all it allows for putting people in pretrial detention right away. There is this excess, [when] there are no elements, when there is evidence that would be insufficient in ordinary criminal law, but once it’s stamped terrorism, it’s enough to jail someone.⁵⁰

—Nicolas Salomon, defense attorney

The expansive interpretation of what can constitute participation in a criminal association in relation to a terrorist undertaking translates into a relatively low standard of proof for arrest and the decision to place a suspect under judicial examination.

Casting a wide net

One characteristic of investigations into association de malfaiteurs has been the arrest of large numbers of people who might have some connection with an alleged terrorist network. The strategy of casting a wide net (“coup de filet”) or “kicking the anthill” (“coup de pied dans la fourmilière”) is based on the faith among counterterrorism practitioners, according to sociologist and expert on French counterterrorism intelligence services Laurent Bonelli, in the strategy’s “ability to destabilize the networks, and to undermine logistics. And it matters little if a good number of the accused are found to be innocent after spending one or two years in pre-trial detention.”⁵¹

Arrests and searches are ordered and supervised by investigating judges. Former judge Bruguière explained that the investigative judge oversees these actions “in real time”—the arresting officers will call the judge for instructions, for example on whether to arrest other individuals besides the initial targets of the operation.⁵²

In some instances, counterterrorism officials have engaged in spectacular raids, referred to as “rafles” in French.⁵³ On November 9, 1993, 110 people were questioned and 87 taken into custody on suspicion of involvement in terrorism, in a police action code-named “Operation Chrysanthemum.” Only three people were eventually placed under official investigation.

In November 1994, 93 people were arrested in a single day, the first of a series of arrests over the next two years of alleged members of a network in support of Islamist combatants in Algeria. On June 25, 1995, 131 people were arrested in five different cities across France, again on suspicion of involvement in terrorism. Ultimately, 138 people were tried in 1998 for association with a terrorist group, referred to in France as the “Chalabi network.” The highly controversial trial was held in a prison gymnasium on the outskirts of Paris because of lack of space in the central court house. Fifty-one people were acquitted, in some instances after spending three years in pretrial detention, while 87 were found guilty. Four more were acquitted on appeal. Of those convicted, 39 were given sentences of less than two years, while the four prime defendants, including Mohamed Chalabi, the presumed ringleader, received sentences ranging from six to eight years.

On May 26, 1998, nearly 80 people were arrested in various European countries in a coordinated operation to prevent what was described as a plot to commit a terrorist attack in France during the 1998 Soccer World Cup. Fifty-three people were arrested that day; 40 of them were released within 48 hours. In the end, 24 people were taken to trial, and only eight were found guilty in 2000 of association de malfaiteurs. Their prison sentences ranged from four months to four years.

According to one counterterrorism official, the resort to mass arrests during this period reflected the need for intelligence about radical Islamist networks: “[W]e were forced to arrest lots of people just to get more information, which we didn’t have. Sometimes a number in a cell phone registry was enough [to warrant an arrest]. It was all to learn more about the networks, to get their cell phones and computers. We didn’t have to do that with the Basques and the Corsicans [because we already knew enough about them].”⁵⁴

He argues that this technique is no longer necessary to obtain intelligence on radical Islamist networks, and when used, it is usually for political reasons: “There can be political manipulation, when a politician comes to say, you have to arrest so and so on a particular day, even if we don’t have the proof.”⁵⁵

A counterterrorism official with the domestic intelligence service Renseignements Generaux (General Intelligence, RG) confirmed this, recalling an investigation he was ordered to conduct, in the absence of evidence, that led to three people being arrested. They were released a few days later: “There are lots of stories like that—lots of people arrested, it makes big news but then there’s nothing. I know because I’ve seen it. There are political reasons, interests of circumstance. It’s traumatic for the children and for the communities.”⁵⁶

While spectacular raids are now less common, there have been more recent exceptions. On June 17, 2003, for example, police officers raided the offices of the Iranian People’s Mojahedin (MKO, an armed Iranian opposition group in exile) and arrested 165 people, including Maryam Radjavi, the wife of the group’s leader Massoud Radjavi. Only 17 were eventually placed under formal investigation for terrorism-related offenses. On a smaller scale, police arrested 14 alleged members of the Liberation Tigers of Tamil Eelam (LTTE, an armed separatist group in Sri Lanka) in April 2007 and five others in September 2007 on association de malfaiteurs charges. In February 2007, 14 alleged members of the Kurdistan Workers’ Party (PKK) were arrested in one day. After four days in police custody and two weeks in pretrial detention, all 14 were released on provisional liberty. They remain under investigation for criminal association in relation to a terrorist undertaking.

Nowadays, the majority of counterterrorism investigations are prolonged and involve numerous arrests spread out over a significant amount of time. The investigation and prosecution of the so-called Chechen Network is illustrative. Over sixty people were arrested between 2002 and 2005, including sixteen couples, but only 27 people were eventually brought to trial.⁵⁷ Fourteen of the wives or partners of suspects were held in police custody for three or four days and subsequently released without charge. Rachida Alam, for example, was subjected to 25 hours of questioning during the three days she spent in police custody in May 2004. During this time she had no access to or right to consult with a lawyer. A diabetic, Alam was taken to the detention facility’s hospital three times before the doctor finally ordered that she remain there.⁵⁸ Of the two women prosecuted, one was convicted, while the other was acquitted after spending one year in pretrial detention with her infant daughter. Eight of the men in these couples were convicted at trial, one was acquitted, and the remaining seven were not prosecuted in this case.

The Ministry of the Interior statistical office told Human Rights Watch it was unable to provide data on the numbers of arrests for association de malfaiteurs, the number of individuals placed under judicial examination, or the number of these who were remanded into pretrial detention.⁵⁹ A Europol study indicated that 130 suspected Islamists were arrested in France in the first 10 months of 2005. Of these, 30 were remanded into pretrial custody.⁶⁰ In 2006, 139 suspected Islamists were arrested, according to a Europol report (over half of all suspected Islamists arrested in the EU that year), while that number decreased to 91 in 2007.⁶¹ The Europol reports for 2006 and 2007 do not contain statistics on remand into pretrial detention. Nicolas Sarkozy said in November 2005 that over 367 individuals had been arrested on suspicion of terrorism since the beginning of 2002; of these, fewer than 100 had been placed under judicial examination and incarcerated.⁶²

Presumption in Favor of Detention

It’s easier to be more efficient in the French system where the investigating judge can detain someone for several months on a very general reasoning.

—Antoine Garapon, executive director, Institut des Hauts Etudes sur la Justice⁶³

The crime of association [terrorism] is deduced from proximity to the devil: you are a young Muslim, you shared an apartment with some Salafists, unwisely, you exchanged some letters … The level of proof is weak because it’s about a presumed intention. The fact of having been close to a Salafist … means you might have had the intention of committing a terrorist act, [so] we should put you in prison.

—William Bourdon, defense attorney⁶⁴

Until January 2001, investigating judges had the authority to remand suspects into pretrial detention. Now that authority rests solely in the hands of special “liberty and custody judges” (juges des libertes et de la detention, JLD) created by a 2000 reform of the Code of Criminal Procedure.⁶⁵

They make decisions about remand into pretrial detention after a suspect’s first hearing with the investigating judge. They also decide on prosecution applications to renew detention and defense appeals against decisions by the investigative judges to refuse applications for provisional liberty (see below). Although there are no JLDs specialized in terrorism, the fact that all terrorism cases are centralized in Paris means that the seven JLDs covering Paris are called upon to take decisions concerning custody in all of these cases.

Under French law, pretrial detention can be ordered and extended if deprivation of liberty is considered the only way to preserve material evidence, to prevent either witnesses or victims being pressured or to prevent those under judicial investigation and their accomplices from agreeing on false testimony; to protect the person under judicial examination; to prevent the person from absconding; or to put an end to the offense or to prevent its recurrence.⁶⁶

In minor felony cases, where the maximum prison sentence is 10 years, initial remand into pretrial detention is for four months. This period may be renewed for a maximum period of three years in terrorism cases (the Investigating Chamber can extend pretrial detention by four months beyond the three-year limit in exceptional circumstances).⁶⁷ In serious felony cases, for crimes punishable by over 10 years in prison, pretrial detention is initially imposed for one year, renewable by six-month periods to a maximum of four years in terrorism cases (the Investigating Chamber can further extend pretrial detention by two four-month periods beyond the four-year limit in exceptional circumstances).⁶⁸ When making an initial decision about whether to impose pretrial detention, and every time detention needs to be renewed, the JLD must hold a hearing with the defendant and the public prosecutor. The first hearing to decide on remand into pretrial detention can only take place if the individual is represented by a lawyer. However, subsequent hearings to determine extensions of pretrial detention can proceed whether or not the individual’s lawyer is present, though counsel must be duly informed of any upcoming hearings within a reasonable amount of time. The JLD does not hold a hearing when examining a defense application for provisional liberty.

The investigating judge retains significant authority over custody issues. For example, investigating judges can order a detainee’s release under judicial supervision or unconditionally at any time, whether in response to an appeal for provisional liberty or of his or her own initiative. Judicial supervision measures can include: house arrest; limiting movement to a particular geographic area; a prohibition on meeting certain people or going to certain places; the wearing of an electronic tracking bracelet (with the suspect’s consent); lodging a sum of money with the court as a guarantee; and the surrender of identification papers, including passport.⁶⁹

If an investigating judge opposes an application for provisional release, he or she must transfer the appeal to the JLD within five days. The JLD rules on the matter within three days without hearing the parties.⁷⁰ Applications for provisional release cannot be made directly to the JLD.

On paper, the JLD constitutes an important improvement and a critical safeguard against arbitrary detention. In practice, however, the introduction of this second layer of control does not appear to have made a significant difference. A 2006 parliamentary report found that JLDs followed the view of the investigating judge 89.7 percent of the time in 2004.⁷¹ “It’s a trompe-l’oeil guarantee,” according to Emmanuelle Perreux, president of a judge’s union called the Magistrates Syndicate.⁷² “You have to imagine his role. He has the prosecutors and the investigating judge who want detention, and he is all alone, and he has only the case file on which to base his decision.”

In cases of remand into pretrial detention or renewal of detention in the course of an ongoing terrorism investigation, the JLD is usually confronted with a case file running to thousands of pages. There is insufficient time for the judges to read the entire case file, and they make no attempt to do so. As one JLD explained, “You don’t have to read the whole case file. We’re not there to judge the facts, we’re there to evaluate whether detention is necessary for the requirements of the investigation. We have the investigative judge’s written referral. We can read the summary of the facts, the last two or three volumes of the case file.”⁷³

A March 2007 reform gave the JLD the authority to postpone the initial hearing to decide on remand into pretrial detention for up to four days, precisely in order to have more time to study the case file.⁷⁴ The parliamentary report on the reform emphasized that the JLD “must base his [or her] decision on the merits of the case file and not only on the mere criteria for pretrial detention … the JLD was created precisely to add a second pair of eyes to the procedure, including incriminating and exculpatory elements, and not just to perform a simple juridical verification with respect to the criteria for remanding into detention.”⁷⁵ One of the JLDs we spoke with did not immediately recall this reform, and then said the authority to delay the hearing had probably never been exercised by any of the JLDs in the year since it was instituted.⁷⁶

Conversations with one former and two current liberty and custody judges suggest that a bias towards caution in terrorism cases, exacerbated by a lack of detachment and the length and complexity of the terrorism investigations, creates a presumption in favor of detention. All three of the judges we spoke with said there were probably higher rates of pretrial detention in terrorism cases, though none could point to official statistics. One JLD suggested that the liberty and custody judges followed requests for pretrial detention from investigating judges and prosecutors in the vast majority of cases, and certainly in terrorism cases.⁷⁷

All three judges spoke openly about the pressure, at times self-imposed, to err on the side of detention in terrorism cases. “We’re afraid to let people go free and to make a mistake. I don’t give myself the same freedom of evaluation that I take in other cases. In ordinary criminal cases, I stick to what the investigators have already found. In terrorism cases, I ask myself, what might they still find?” one explained.⁷⁸

The former JLD quoted above describing “small fry, just these young guys with posters of Bin Laden in their bedrooms” nevertheless acknowledged the same pressure towards presumption in favor of detention:  “We recognized that it [detention] was partly to scare them.  But also it was very difficult to take the risk of letting them go free.”⁷⁹ 

Investigating judges, liberty and custody judges, and prosecutors come from the same judicial corps and undergo the same training. In the course of a career in the administration of justice system, the same person can serve in all three roles.  JLD are appointed and supervised by the president of the Tribunal de Grande Instance.

All of the JLDs we spoke with had been investigating judges, one had also been a prosecutor. This “interchangeability,” as one judge put it, makes it difficult for JLDs to maintain the necessary distance. “The JLD is a very good idea, but in a system where the judges and the prosecutors all come from the same judicial corps, the JLD doesn’t have all of the desired independence … There’s too much esprit de corps. It’s not about pressure, but this esprit de corps that translates into solidarity.”⁸⁰

There may in fact be cases of direct pressure. A former JLD told Human Rights Watch that he had to explain himself to his superiors when he failed to abide by the wishes of an investigating judge for pretrial detention in a terrorism case:

It was the case of an Algerian living in Japan, married to a Japanese woman, with two Shintoist children. He was arrested at Roissy [Charles de Gaulle airport, Paris] en route to Algeria because his telephone number was in some terrorism suspects’ cell phones. He said it was because these people had come through Japan, and he hosted them … They wanted to put him in pretrial detention but I said no. I said he could be placed under judicial supervision at his sister’s house in Lyon.⁸¹

The man, Djamel Hamouni, spent three years under judicial supervision before a different investigating judge lifted the orders and allowed him to leave the country in November 2007. During those three years, he was prohibited from leaving the Lyon region, had to report to the police every week, and was unable to work. At this writing, he is in Algeria waiting for a visa to return to Japan and see his family for the first time in three-and-a-half years.⁸²

A further problem is that there is no guarantee of continuity of JLD oversight. Two or three JLDs are on call to handle new cases—individuals who have just concluded their time in police custody. But it is the head of the JLD section who allocates a dossier when it comes to renewals and petitions for provisional liberty. There is no rule or guideline to ensure that the JLD who first remanded someone into detention will decide on renewals or release.

Intelligence Material and Torture Evidence

Intelligence material, including information coming from third countries, is often at the heart of association de malfaiteurs investigations. Indeed, most if not all investigations are launched on the basis of intelligence information. Intelligence material in judicial proceedings has a legitimate role in the effective prosecution of terrorism offenses. But the close relationship between specialist investigative judges and the security services raises concerns about whether judges are approaching such material as potential evidence with the necessary skepticism and concern for the rights of the accused.

The use of evidence obtained from third countries where torture and ill-treatment are routine raises particular concerns, including about the nature of cooperation between the security services in France and those countries. Some defendants in France who credibly allege they were tortured in third countries into confessing have successfully had the confessions excluded as evidence.

But the courts appear to have allowed as evidence in some cases statements allegedly made under torture by third persons. And trips by investigative judges to third countries with poor records on torture to verify material for use in French prosecutions raise questions about the willingness of French judges to turn a blind eye to allegations of abuse.

Judicial cooperation with the security services

Both domestic and international counterterrorism experts emphasize the cooperation between specialized investigative judges and French security services. One counterterrorism official told Human Rights Watch, “That’s the French distinctiveness: judges and police officers working together every day. There’s a kind of trust there. The passage between intelligence operation and judicial investigation is very easy. The judge is an ally, not an adversary, and that is a big help.”⁸³

Investigative judges cooperate closely with the Directorate for Territorial Surveillance (Direction du Surveillance Territoire, DST) and the General Intelligence. Both agencies are part of the Interior Ministry. The DST is both an intelligence-gathering agency and a judicial police force, which means DST agents can be assigned to assist investigating judges in criminal inquiries. In practice this translates into a continuous exchange of information and joint strategizing between the investigative judges and the security service agents.⁸⁴

The ease with which sensitive intelligence material is put to use in judicial proceedings without compromising intelligence sources and methods is the pride of French counterterrorism officials and the apparent envy of their counterparts in other countries. The United Kingdom Home Office, for example, has studied the investigating judge system in France with a specific interest in the way intelligence material is introduced as evidence.⁸⁵ The specialized investigating judge, with his or her expertise, training, and security clearance, is the designated filter of all intelligence information. Not only can unsourced intelligence reports be entered into the case file (and subsequently used at trial), investigating judges may authorize any number of investigative steps, including arrests, on the basis of intelligence information alone.

For example, the arrests in late September and early October 2005 of individuals allegedly plotting terrorist attacks on the Paris underground metro system, the headquarters of the DST, and/or a Paris airport is illustrative, and appear to be have been based largely, if not entirely, on statements allegedly made by a man named M’hamed Benyamina while in the custody of the Algerian secret service, the Department for Information and Security (Departement du Renseignement et de la Securite, DRS).

Benyamina, an Algerian residing legally in Trappes, France, was arrested at the airport in Oran, Algeria, on September 9, 2005, as he was preparing to return to France. Benyamina told Amnesty International that Algerian security officers had told him French authorities requested his arrest. A February 2006 article in the French daily newspaper Le Figaro raising concerns that France had “delivered” a suspected Islamist to Algeria to make him talk under torture, cited two anonymous police sources acknowledging this French connection, while another source close to the case insisted that Algiers had its own reasons for being interested in Benyamina.⁸⁶

Benyamina was held in DRS custody for at least five months, during which his family had no information about his whereabouts and he was not under judicial examination in either France or Algeria, making this a case of enforced disappearance. Benyamina said he was detained in a small, dirty cell with no window or electricity, that he saw no one but his interrogators for the entire five months, and was allowed to use the toilet only twice a day.⁸⁷ He never saw a lawyer or had the chance to challenge the lawfulness of his detention in any way. In March 2006, according to Algerian authorities, he was placed in pretrial detention on charges of membership in an international terrorist organization. The United Nations Working Group on Arbitrary Detention has classified Benyamina’s five months in DRS custody as illegal, arbitrary detention.⁸⁸

Benyamina told Amnesty International that he did not want to talk about treatment in DRS detention as long as he remains in Algeria, for fear of reprisals.⁸⁹ There is evidence, based on dozens of cases of torture and ill-treatment collected by Amnesty International between 2002 and 2006, to suggest that the DRS routinely arrests and holds terrorism suspects in incommunicado detention, with no access to a lawyer, where they are at particular risk of torture and ill-treatment.⁹⁰

Emmanuel Nieto and Stéphane Hadoux were arrested in France in early October 2005 on the basis of Benyamina’s statements in DRS custody. Both claim they were subjected to physical and psychological abuse during police custody (see Chapter V for a detailed account of Nieto’s experience). According to their lawyer, Benyamina subsequently exonerated Nieto and Hadoux in official judicial statements transferred to the French investigating judge in September 2006. It was on the basis of this exoneration that the lawyer secured their release under judicial supervision in January 2007, after over one year in pretrial detention.⁹¹ They remain under investigation.

This case illustrates the difficulties defendants face in effectively responding to or challenging intelligence material. The lawyers for Nieto and others involved in this case have requested Benyamina’s extradition from Algeria in order to cross-examine him; these requests have been denied. And while agents of intelligence services may be required to testify at trial—and can do so in a way that protects their identity—they cannot be obligated to reveal their sources. The UK Home Office study cited above concluded that while “the inability to probe or question the material underpinning the intelligence reports has never been challenged in France,” in the UK “[d]enying the defence the opportunity to respond to potentially significant parts of the prosecution case would … have article 6 implications,” referring to the article of the European Convention on Human Rights guaranteeing fair trial rights.

Former investigating judge Bruguière explained that the integration of intelligence information into judicial investigations is key to the fight against terrorism, and held up the French approach as an effective model. “There’s no problem with disclosure or admissibility of evidence,” he said. Bruguière stressed, however, as did counterterrorism prosecutor Maitre, that no one would ever be convicted in France on the basis of intelligence information alone. Rather, Bruguière explained, the information “allows for orienting the investigation toward material elements. The intelligence information must be corroborated by other elements.”⁹² This essentially means that the investigating judge will take information gathered by intelligence-gathering methodology, outside the scope of a criminal investigation and related judicial oversight, and “judicialize” it by ordering investigative steps to find corroborative evidence. As Garapon indicates, the investigating judge plays a role of “interface” between intelligence and prosecution because the judicial investigation phase allows him to turn “useful intelligence information into a perfectly valid and transparent element of proof.”⁹³

In a 2007 report on democratic oversight of security services, the European Commission for Democracy through Law (known as the Venice Commission, a body of the Council of Europe) warned that relying on control over security services by specialized judges as a form of oversight carries risks, including over-identification with security officials and a loss of the independence and external perspective necessary for proper accountability. The report cites France and Spain as examples of this approach and cautions that “[t]he necessary awareness of the suspect’s rights may gradually be lost over the years spent in the isolated world of security intelligence.” ⁹⁴

Up until very recently, France was among a small handful of Western democracies without any mechanism in place for parliamentary oversight of its intelligence services. An October 2007 law created a special ad hoc parliamentary “delegation” composed of four representatives from each chamber of parliament.⁹⁵ The delegation, whose hearings will always be closed to the public and whose work is covered by national security, can formulate recommendations to the prime minister and the president. The delegation officially began its work in February 2008.

Use of torture evidence

One of the greatest concerns arising from the close relationship between the investigative judges and the security services in France is that information obtained in third countries under torture or prohibited ill-treatment will be used in criminal proceedings in France. The absolute prohibition against torture is firmly embedded in customary international law and international treaties to which France is a party. The International Covenant on Civil and Political Rights, the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, and the European Convention on Human Rights all affirm this cardinal principle. The ban on torture permits no exceptions or derogations and extends to the use of information obtained under torture in legal proceedings. Article 15 of the Convention against Torture provides that any statement that has been made as the result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. In accordance with article 55 of the French Constitution, international treaties ratified by France take precedence over national law.

The use of evidence obtained by torture or ill-treatment is prohibited not only because it is unreliable but because, according to the European Court, its use “would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Art. 3 of the Convention sought to proscribe, or as it was so well put in the US Supreme Court’s judgment in the Rochin case … ‘to afford brutality the cloak of law.’”⁹⁶

Cooperation among intelligence and security services in different states is a critical component of the fight against terrorism. The existence of Alliance Base (a center in Paris for counterterrorism coordination among Western intelligence services established jointly by US and French intelligence in 2002) is one illustration of the close cooperation of French intelligence services with the majority of their counterparts in Western democracies. The DST and the RG also share information and collaborate with a wide range of services, including those with reputations for torture.⁹⁷

A counterterrorism official who spoke with Human Rights Watch on condition of anonymity explained that French services normally receive a refined product, in the form of a summary or simply a tip-off, from a foreign intelligence service, rather than the raw intelligence. They then evaluate the reliability of the information taking into account the known methods and efficiency of the foreign service involved and attempt to cross-reference the information. They will also try to ensure that information coming from a trusted partner, for example the United Kingdom, is not in reality from an untrustworthy source, for example Uzbekistan. The official stressed that information obtained illegally, including through torture or ill-treatment, is unacceptable because the information is not reliable and it will ultimately be ruled inadmissible in court.⁹⁸

In practice, judicial control over this phase is non-existent. As Bruguière explained, investigating judges receive information only from the DST, not directly from third-country sources: “They’re the ones who do the interfacing [with other intelligence services], and they don’t tell us where they got the information … We don’t know whether the methods used were human or technical, or [even whether] the information comes from a third country …”⁹⁹

Counterterrorism prosecutor Philippe Maitre confirmed this, explaining, “There is no judicial control over the intelligence services. It’s the judicial procedure that verifies the information that begins as intelligence … The origin of the intelligence is not important, and we don’t always know it.”¹⁰⁰ Under these circumstances, it is difficult to see how the investigating judge can exercise any control over the legitimacy of the methods used and the veracity of the information obtained when determining whether to open an official investigation or authorize certain investigative steps.

But in fact, an investigating judge can fully “judicialize” intelligence information coming from abroad by instituting an “international inquiry commission” (commission rogatoire internationale) to request official information from judicial authorities in a given country. The judge may travel to the country to participate in, or observe, interrogations. Information gathered under these circumstances, regardless of the conditions of confinement and treatment of the detainee before and after the international inquiry commission, enjoys considerable legitimacy.

The cases below illustrate the way in which evidence obtained under torture or prohibited ill-treatment in third countries has been used in criminal proceedings in France. Individuals subjected to the prohibited ill-treatment in a third country and then prosecuted in France have the opportunity to contest the use of this evidence, sometimes successfully, as illustrated below. There is very little scope, however, for challenging information that may have been unlawfully obtained if the victim is not one of the defendants.

Several of the cases also illustrate the concerns arising from direct contact between investigative judges and countries with poor records on torture. In particular, the cases raise questions about the willingness of investigative judges to turn a blind eye to allegations of abuse.

Djamel Beghal

Djamel Beghal is a 43-year-old Algerian who has spent the last six years in solitary confinement in a French prison. He was sentenced in March 2005 to 10 years in prison, the maximum penalty for criminal association in relation to a terrorist undertaking. The Appeals Court subsequently confirmed this sentence and added the obligation to serve two-thirds of this sentence before becoming eligible for release. In December 2006 Beghal’s acquired French nationality was rescinded and he was ordered expelled from France upon release from prison.

Beghal was convicted of association de malfaiteurs largely on the basis of statements he made under torture and prohibited ill-treatment in the United Arab Emirates in September 2001. All the official court documents relating to the case state that Beghal was arrested at Dubai airport on September 7, 2001, because he was using a fake French passport. Beghal was transiting through the UAE from Pakistan on his way to Morocco. He had apparently been identified, though it is not clear by whom, as an al Qaeda operative implicated in plans to attack US interests in France. Beghal has claimed that he was arrested at his hotel, hours after he had arrived in Dubai, by five or six men wearing sunglasses.¹⁰¹ He was extradited to France on October 1, 2001.

In a written statement, Beghal described harrowing treatment in UAE custody, which included:

“Falaqa” with my feet in bowls of ice to clot my blood and hit on the soles of my feet double the intensity of the pain. And this … many days … Pulling out of the toe nails … Injections of products provoking much pain, vomiting … Sleep deprivation until loss of speech. Deafening noises. Wisdom teeth drilled without anesthetic and pain to the point of blackout.… Put in the cold in a big “fridge” or a cold room with the promise that I will die of cold. Always the eyes covered … to the point where I stopped thinking about the bandage or the existence of light. What kept coming back without ceasing: “Bin Laden gave you a mission.” Then in the face of my negative answers, a break and – I think after September 11 and its events – they came back with a scenario: “You were charged with attacking the US embassy in Paris,” just like that, without preamble. They didn’t stop hammering me with this story.¹⁰²

After a long flight from Dubai in which he was “suspended like a bat, hand-cuffed to the hooks used by parachutists, in the glacial cold of high altitudes,”¹⁰³ Beghal was taken directly to the investigating judge and subjected to a seven-hour interrogation on October 1, 2001.¹⁰⁴ His court-appointed lawyer did not advise him to remain silent, nor did the lawyer demand that the hearing be postponed.

On this occasion, Beghal denied any plot to commit a terrorist attack on US interests in France. He told the investigating judge about the conditions and treatment during detention in UAE. The forensic examination ordered by the investigating judge immediately after the interrogation revealed some traces of the kind of treatment Beghal reported—for example a bruise on his left arm, as well as marks on his left ankle and sole of the foot and a slight swelling of a toe on his left foot—and the doctor noted a “post-traumatic effect of the alleged events.”¹⁰⁵

The 10^th Chamber of the Correctional Court nonetheless allowed all of Beghal’s statements made in the UAE as evidence at trial, including his alleged confession that a high-level al Qaeda operative named Abu Zubayhdah had tasked him with organizing an attack on the US embassy in France.¹⁰⁶ Applying a circular logic, the court held, “Even if Djamel Beghal would progressively retract, and then definitively do so at the court hearing, the statements he made in the United Arab Emirates, it must be acknowledged that the essence of these, manifestly confirmed during his first hearing with the investigating judge [in France], would be in any event confirmed by numerous investigations.”¹⁰⁷ These investigations include DST reconstructions of Beghal’s travels; police operations in France, Belgium and Spain that confirmed contacts among alleged members of the group; and the statements in custody of various indivduals, including Nizar Trabelsi. Trabelsi is a Tunisian national who was arrested in Belgium on September 13, 2001, and eventually convicted in 2003 of plotting an attack on a NATO air base in Belgium. There were suggestions that Trabelsi was meant to execute the attack on the US embassy in Paris, a charge he always denied, whereas he confessed to the Belgian plot.¹⁰⁸

The Correctional Court ruled that Beghal was a member of a terrorist network because of his contacts with certain individuals identified as high-level al Qaeda operatives. The judgment cites DST information about Beghal’s movements, which included time spent in paramilitary camps in Afghanistan and contact with alleged al Qaeda recruiters Abu Qatada and Abu Doha in the United Kingdom, all of which Beghal admitted to both in the UAE and in France.¹⁰⁹ The French court held that Beghal would have engaged in a terrorist mission in France had he not been arrested in the UAE.¹¹⁰

Beghal did in fact confirm, in his first session with the investigating judge, that he knew certain individuals identified as members of radical Islamist movements, notably Abu Qatada in London, as well as some of Beghal’s co-defendants and Nizar Trabelsi. But Beghal denied he had met Abu Zubayhdah in Afghanistan, and said his time in Afghanistan was not connected to al Qaeda.

The Appeals Court upheld Beghal’s conviction in December 2005 even as it determined that the testimony from the UAE could not be held against him. Noting that the only effective proof of a plot against US interests in Paris is the testimony obtained in Dubai “under conditions not compatible with the respect for the rights of defense,” the 10^th Chamber of the Appeals Court nevertheless concluded that there was ample evidence to indicate Beghal’s “implication … in the most radical Islamist movement, that supported by al Qaeda, whose objectives of destabilizing Western regimes supporting the United States and Israel are proven.”¹¹¹

In February 2008 Beghal’s lawyer concluded, “The French justice system has not done itself honor in the way the Beghal affair was conducted, from the moment he was brought here until today. We found ourselves in the obligation to prove his innocence, in a reversal of all the rules of the game, and it was impossible. Everything was understood from the start, we never once thought he would be acquitted. The judge’s mind was made up from the start. There were dozens of volumes, with nothing interesting in them, but there was an accumulation of information to make believe that he [Beghal] could commit a terrorist act in the future.”¹¹²

Said Arif

Said Arif was one of the main figures in the so-called Chechen Network trial. The case involved 27 defendants, most of whom were accused of undergoing paramilitary training in camps located in the Pankisi Gorge in Georgia, with a view to returning to Europe to perpetrate terrorist attacks. The group was dubbed the “Chechen network” because many of them allegedly planned to go to Chechnya to fight, although none of those on trial actually did so.¹¹³

Arif, a 43-year-old Algerian national, was detained in Damascus by Syrian intelligence services in July 2003. He was brought to France in June 2004, under an ad hoc procedure in the absence of an extradition treaty between the two countries. A French investigating judge traveled to Damascus in May 2004 as part of an international inquiry commission and provided Syrian authorities with a list of questions to ask Arif. These questions were accompanied by “answers” in parentheses.¹¹⁴ The French judge did not participate in or attend personally the interrogations, and to our knowledge did not see Arif in custody.¹¹⁵

Arif has credibly alleged that he was tortured throughout the year he spent in Syrian custody:

I was held on premises of the Syrian secret service for one year in inhuman conditions. I was in an individual cell 1 meter by 1.9 meters, with a ceiling of 2 meters, in total darkness. I slept on the dirty floor, without access to medical care. I couldn’t talk or had no notion of time, and I was hit time and again. During the winter I did not have heating or hot water … that year in detention in Damascus, I was tortured with a television cable, and they had put me in a tire, which affected my spinal column. Getting slapped was the least of the abuse I suffered … I was forced to admit facts I didn’t know, ignoring, up until the last day of my detention, that there was an international inquiry commission and without the assistance of a lawyer .¹¹⁶

Torture is a serious, well-documented problem in Syria, especially during interrogations.¹¹⁷

Arif disavowed everything he is alleged to have said while in Syrian custody. His lawyer, Sébastien Bono, successfully argued that all pieces of evidence emanating from his detention in Syria that were included in the prosecution’s case against Arif should be inadmissible at trial. The court, having heard testimony from the International Federation of Human Rights, Amnesty International and the World Organization against Torture about widespread and systematic torture in Syria, agreed that it was “likely that the statements made by Said Arif in Syria … were made under torture, and that his confessions were obtained by the same method.”¹¹⁸

The court nonetheless convicted Arif in June 2006 of membership in a cr iminal association in relation to a terrorist undertaking, and sentenced him to nine years in prison. The ruling found that Arif was proved to be a member of Abu Doha’s terrorist network, that he had spent time in Afghanistan in contact with “leaders of the radical Islamist movement,” that he spent time in the Pankisi Gorge in Georgia where he was in constant touch with members of a French terrorist cell, and that he was in Barcelona in March 2002 at the time when a meeting took place among radical Islamists “to define the new Jihad strategy in Europe.”¹¹⁹ The senior judge of the 10^th chamber of the Correctional Court that tried the case, Jacqueline Rebeyrotte, also presided over the trial of the so-called Frankfurt group accused of plotting an attack on the Strasbourg Christmas market in 2000. In the 2004 verdict, which convicted 10 men, the judge (and her two fellow judges) referred to Arif as one of several “big fish” and suggested that his membership in a “radical Islamist movement” was a given.¹²⁰

Statements by Arif’s co-defendants, as well as alleged members of radical Islamist movements or networks, were key to the case. Most of those who provided testimony in police custody and in some cases to the investigating judge against their co-defendants later retracted these statements, alleging physical and/or psychological pressure during police custody.¹²¹ Statements made by Laurent Mourad Djoumakh, who was convicted for participation in the Strasbourg Christmas market plot, appear to have been particularly important to the prosecution’s case and the verdict. Djoumakh testified that Arif was a member of Abu Doha’s network, and that Arif traveled to Georgia in 2001 using Djoumakh’s passport.¹²²

In May 2007 the Appeals Court upheld the exclusion of the testimony from Syria yet confirmed the lower court’s conviction and increased Arif’s prison term to 10 years—the maximum sentence—with the obligation to serve at least two-thirds of his sentence. (The Prosecutor’s Office had argued before the Appeals Court that the lower court dismissed Arif’s Syria testimony “improperly” because there was no evidence that Arif had been tortured, and the Syrians had no interest in torturing Arif “since they were not interested in his case and delivered him to France very quickly after his arrest”¹²³).

The success of Arif’s lawyer, Sébastien Bono, in having the testimony from Syria excluded has come at a price. The President of the Appeals Court criticized Bono for stating in his written arguments that the French investigating judges were complicit in torture, calling this language “slanderous and overstepping the bounds of freedom of speech of the defense.”¹²⁴ In November 2007 the Prosecutor’s Office asked the Disciplinary Committee of the Paris Bar Association to censure Bono for these accusations. Despite the view of the president of the Bar that Bono’s actions were legitimate defense efforts, the Prosecutor’s Office opened its own disciplinary action against Bono in January 2008. By law this means the Bar Association’s committee must conduct an inquiry. Possible sanctions include temporary or permanent disbarment. The decision may be appealed to the same Appeals Court chamber that ruled on the Chechen Network case.¹²⁵

Abu Attiya

A portion of the information in the Chechen Network case file appears to have come from a Jordanian man known as Abu Attiya (who was not a defendant in the trial). A DST report dated November 6, 2002, at the outset of the judicial investigation, stated that Abu Attiya was in charge of preparations in Georgia for chemical attacks in Europe.¹²⁶ A French investigating judge traveled to Amman as part of an international inquiry commission and submitted questions for Abu Attiya to the Jordanian authorities. To the best of our information, the French judge neither directed nor participated in any of the interrogations. There are references to Abu Attiya in the 305-page verdict from June 2006 and the Appeals Court decision from May 2007. Indeed, the higher court lists Abu Attiya’s statements while in custody in Jordan as one of the principal elements of proof of a plot to commit a chemical attack in France.¹²⁷

The lawyer for Zine Eddine Khalid, one of the defendants in the Chechen Network trial, argued before the Appeals Court that Abu Attiya’s testimony should be excluded given the conditions under which it was obtained and “the absence of details about the sources of the information of the DST.”¹²⁸

Human Rights Watch interviewed Abu Attiya in Jordan in August 2007. He gave his full name as Adnan Muhammad Sadiq Abu Najila. He told us he was arrested in Azerbaijan in mid-August 2003 and transferred to Jordan in late September 2003. He was held in custody by the Jordanian General Intelligence Department (GID) until December 30, 2007, when he was released, after over four years, without charge. The GID has a record of arbitrary arrest and abusive treatment of prisoners.¹²⁹ During interrogations, “they asked me about people who came from Europe. Those people wanted to go to Chechnya but couldn’t; I didn’t have much to do with them,” Abu Attiya told us. He claims he never confessed to a plot to commit attacks in Europe.

Abu Attiya said he suffered from sleep deprivation while in GID custody and that he was given pills and injections. “The injections made me nervous and shaky, so I couldn’t concentrate. The pills were very small, they made me nervous and jumpy,” he said. He was not allowed to read his “confession” before he signed it.¹³⁰

When asked by Human Rights Watch about information from Abu Attiya being used in the Chechen Network case, the investigating judge said, “But that was an international inquiry commission to Jordan... I have only participated in non-violent inquiry commissions.”¹³¹ When told that Abu Attiya has alleged ill-treatment in Jordanian custody, the judge said, “I don’t know anything about that.”¹³²

Convictions Based on Weak Evidence

Terrorism association de malfaiteurs cases are tried by three-judge panels in the Correctional Court in Paris. There is no specific chamber of the Court that hears these cases, though most are tried in either the 13^th, 14^th, or 16^th chamber. All appeals against Correctional Court verdicts are heard by the same three judges presiding over the 10^th chamber of the Paris Appeals Court. Both the Office of the Prosecutor and the defendant can appeal; in many of the cases reviewed by Human Rights Watch the Appeals Court upheld convictions and often increased prison sentences, and in some cases reversed acquittals and convicted defendants.

The standard of proof in the French criminal justice system is defined in article 427 of the Code of Criminal Procedure: judges (and juries) decide according to their “innermost conviction” with respect to the innocence or guilt of the defendant in a system where all types of evidence are admissible (“free proof” system). The trial chambers of the Correctional Court must provide reasoned judgments explaining their verdicts. Judges and juries at the Assize Court, which tries the most serious felonies, do not have to provide a reasoned judgment. The European Court of Human Rights has held that the “innermost conviction” standard is functionally equivalent to the criminal standard of proof “beyond a reasonable doubt” used in common law jurisdictions.¹³³

Judge Jean-Claude Kross, the senior judge presiding over the 16^th chamber of the Paris Correctional Court, explained that “we rule based on the material and legal elements in the case file, including the police investigation” and stressed the importance of adversarial hearings in open court in elucidating the facts of the case.¹³⁴ Senior Prosecutor Philippe Maitre emphasized that any doubt should benefit the accused.¹³⁵

Human Rights Watch was unable to obtain statistics on the ratio of convictions to the number of accused in cases involving alleged Islamist terrorism networks. Anecdotal evidence suggests that a majority of the accused in these often complex cases involving numerous defendants is convicted of something, either the main accusation of criminal association in relation to a terrorist undertaking, or minor crimes, such as forgery, decoupled from a terrorist intent. Europol figures indicate that France had a 5 percent acquittal rate in terrorism trials in 2007: there were 52 convictions and 3 acquittals out of the total of 55 verdicts. These included 31 verdicts involving Islamist groups defendants and 24 cases involving separatist defendants. The acquittal rate for 2006 was 0 percent, as 21 convictions were handed down in 21 verdicts.¹³⁶

A number of those convicted on association de malfaiteurs charges are given sentences that appear to equate with the time already served in pretrial detention. This may reflect the often lengthy detention before trial in terrorism cases, but perhaps too an effort to “cover” the period of time already served to avoid any appearance of unjust detention.¹³⁷ And because French law provides for automatic reductions in prison sentences, these individuals are effectively serving even longer sentences than they would have had they begun serving time only after conviction.¹³⁸ Hassan el Cheguer and Hakim Mokhfi were both sentenced to four years, with one year suspended, for membership in a terrorist network, having spent exactly three years in pretrial detention. Initially they were charged, along with Ghulam Mustafa Rama, with providing support to Richard Reid, the British citizen known as the “shoe bomber” because he attempted to ignite a bomb hidden in his shoe on a Paris-Miami flight in December 2001. The prosecutors ultimately admitted there was insufficient evidence on this count and instead argued that Rama had recruited the two younger men into terrorism. El Cheguer and Mokhfi admitted spending three weeks in September 2001 in a training camp in Pakistan-administered Kashmir run by an Islamist organization called Lashkar-e-Toiba. They claimed they had not been fully informed and had been surprised and scared to discover its true nature.

Some of these convictions to time already served appear to be based on evidence establishing little more than contact between certain people. A 2005 case involving six defendants prosecuted for membership in a network plotting an attack on US interests in France illustrates the concern. The main figure in the case was Djamel Beghal (discussed above). Two of the other defendants were Rachid Benmessahel, who was sentenced to exactly three years in prison, the period he had already spent in pretrial detention, and Johan Bonte, who was sentenced to one year, after having spent three years in pretrial detention.

The judgment—which documents a large number of phone calls and various meetings between the six defendants in the case, including Benmessahel and Bonte, —establishes without a doubt that these men knew each other (Bonte is Beghal’s brother-in-law).¹³⁹ But it does not establish any link to a specific terrorist plot in France, and leaves significant room for doubt that these men formed a network or group with a clear terrorist purpose.

Benmessahel’s wife expressed her frustration with the investigation:

I had lots of disks of articles on Islam, on all sorts of topics, including one on martyrs. All in French, which my husband doesn’t even speak that well. I confirmed they were mine. My husband said they were mine, but the police insisted on saying they were his. I had proof that he went to Dusseldorf to buy a car, but no matter what I showed them, they insisted it was to meet with terrorists. Rachid stepped on an anti-personnel mine in Algeria while he was doing his military service. [The investigating judge] kept saying he’d been injured in Afghanistan, and when I gave documentation from Algeria about Rachid’s injury to the lawyer to give to [the judge], he said he wouldn’t take it into account, anything can be bought in Algeria. They said my husband had gone to Afghanistan in 1997-1998, and when I proved he hadn’t, they said he’d gone in 2000. But he’d been operated on then, so finally they said he was the person in France tasked with coordinating everything. I had the feeling I was hitting my head against a brick wall.¹⁴⁰

Two years after Rachid Benmessahel was released from prison his acquired French nationality was rescinded and he was expelled to Algeria. His wife, a French citizen, and their three children, continue to live on the outskirts of Paris.

Ibrahim Keita and Azdine Sayez were tried along with four others for membership in a network providing support for al-Qaeda operatives and recruitment to terrorism. Three of the other defendants were convicted of providing financial and logistical support to the two Tunisian men who killed the military leader of the National Islamic United Front for the Salvation of Afghanistan, Commander Ahmed Shah Massoud in September 2001. A fourth was sentenced to two years in prison for organizing paramilitary training camps. Although tried alongside these men, Keita was accused of providing support to Willy Brigitte, a French citizen who was ultimately convicted of plotting a terrorist attack in Australia. Keita, a pious Muslim, shared a small spartan room with Brigitte in Paris: Keita slept there during the day, while Brigitte could use it at night while Keita worked as a truck driver. This, and the fact that he participated in what he called hiking trips organized by the mosque he attended, appear to be the only basis for the association de malfaiteurs accusation. After spending roughly a year-and-a-half in pretrial detention, Keita was acquitted by the Correctional Court. The Office of the Prosecutor appealed, however, and the Appeals Court reversed the acquittal and sentenced Keita to two years in prison. With time already served and automatic reductions, Keita did not return to prison.

His co-defendant Sayez appears to have been arrested and placed under judicial examination for little more than the fact that he owned a halal pizzeria patronized by many of the other defendants in the case. Keita himself would stop there to pick up a pizza while he worked making deliveries. Sayez spent roughly eight months in pretrial detention before his acquittal. But like Keita, Sayez saw this acquittal reversed by the Appeals Court and he was sentenced to two years in prison; unlike Keita, Sayez was rearrested and incarcerated to complete his sentence.¹⁴¹

Foreign jurisdictions have cast doubt on the evidential basis of some association de malfaiteurs convictions. In 2002, a German court refused to extradite Abdellah Kinai, an Algerian with refugee status in Germany, to France to complete a five-year prison sentence.

Kinai, now 64 years old, had been initially arrested on May 26, 1998, in France as part of the operation to avert an alleged terrorist plot targeting the soccer World Cup in France that year. Kinai was eventually accused of being a leading figure in a group formed to provide material and logistical support to the GIA in Algeria, and of giving his approval of a plot to murder Paris mosque imam Dalil Boubaker. Kinai spent 11 months in pretrial detention in France before being released under judicial supervision. On December 12, 2000, the Correctional Court acquitted him of all charges. In this trial, 16 out of 24 defendants were acquitted of the most serious charges related to membership in a terrorist association de malfaiteurs.¹⁴² The prosecution appealed the acquittal, however, and on March 14, 2002, the Paris Appeals Court found Kinai guilty and sentenced him to five years in prison.

Kinai had returned to Germany after the acquittal by the lower court, and he was arrested in Stuttgart on July 1, 2002, pending extradition to France to serve his prison sentence. After examining the case documents, however, the Higher Regional Court in Stuttgart revoked the arrest warrant on November 22, 2002, and definitively declared Kinai’s extradition to France inadmissible on April 7, 2003, citing lack of legal grounds for the extradition request. With respect to the alleged membership in a criminal association to commit terrorism, the Court concluded that “it is impossible to determine from the documents provided by the French authorities whether the network allegedly led by the accused even fulfills the criteria of a criminal or terrorist organization … there are no specific allegations that would allow the Court to determine the organizational structure of this network.” With respect to the alleged plot to murder the imam of the Paris mosque, the Court also found it could not determine the existence of any criminal offense.¹⁴³

A Canadian court also took the view that a French conviction for association de malfaiteurs was unfounded. Abdellah Ouzghar, a dual Canadian-Moroccan citizen, was convicted in absentia in April 2001 in France for association de malfaiteurs and passport forgery and sentenced to five years in prison.¹⁴⁴ Twenty-three others were convicted at the same time of belonging to the so-called Montreal Group. The group was allegedly linked to Ahmed Ressam, convicted in the United States in April 2001 of attempting to smuggle explosives from Canada in order to blow up Los Angeles International Airport. France sought Ouzghar’s extradition from Canada shortly after the 9/11 attacks in the US, leading to his arrest in October 2001 and lengthy extradition proceedings. In January 2007 a Toronto judge dismissed the claim that Ouzghar was a member of an international terrorist group but allowed his extradition on the lesser charges (for example, passport forgery). A year later, in January 2008, the Canadian Minister of Justice ignored the judge’s finding and allowed extradition also on the basis of the terrorism charge. As of May 2008, Ouzghar remained in Canada with appeals pending.¹⁴⁵

In France, anyone who spends time in pretrial detention and is subsequently released without charge or acquitted of all charges at trial has the right to compensation.¹⁴⁶ Saliha Lebik spent one year in pretrial detention with her infant daughter before being acquitted of all charges by the Correctional Court in June 2006. Both Lebik, the wife of one of the principal defendants in the Chechen Network trial, and her daughter contracted tuberculosis in prison. Her husband Mérouane Benahmed was convicted of terrorism association de malfaiteurs and sentenced to the maximum of ten years in prison. The Appeals Court upheld Lebik’s acquittal in May 2007, paving the way for her to receive compensation. At this writing, no decision had yet been rendered on Lebik’s suit for over €220,000 in damages.¹⁴⁷ Those who are convicted but sentenced to a shorter time in prison than already spent awaiting trial, like Johan Bonte (see above) do not have the right to compensation.