We are writing to you about the draft anti-terrorism law currently under consideration in the Senate. Human Rights Watch would like to express our concerns about current provisions in the draft law that would increase the maximum duration of police custody for terrorism suspects without improving safeguards with respect to access to counsel and judicial supervision.
Human Rights Watch would like to express our concerns about current provisions in the draft law that would increase the maximum duration of police custody for terrorism suspects without improving safeguards with respect to access to counsel and judicial supervision. Our analysis indicates that these proposals are incompatible with France’s obligations under international human rights law. We urge you to take this opportunity to strengthen, rather than weaken, procedural guarantees in terrorism-related cases.
Article 10-ter of the draft law, introduced as an amendment in the National Assembly, envisages modifying the Code of Criminal Procedure to allow the Judge for Liberty and Custody to order two additional 24-hour extensions of police custody in cases where there is a serious risk of an imminent terrorist attack in France or abroad, or where international cooperation is required to proceed with the investigation. These extensions would be in addition to the two 24-hour extensions already permitted in terrorism-related detentions, and would bring to six days the total amount of time a terrorism suspect may be held in police custody before a hearing with a magistrate.
Human Rights Watch acknowledges that additional time may be necessary, in exceptional situations, to complete preliminary investigation or to prevent an imminent attack. Robust procedural guarantees must be in place, however, to safeguard the detainee’s right to an effective defense and right to challenge the lawfulness of the detention, as well as protect the detainee’s physical integrity. The changes under consideration do not rectify the already limited access to counsel and inadequate judicial supervision in actual practice. When combined with the inability to contact a third party about the detention, these conditions create a situation of incommunicado detention. While incommunicado detention per se is not prohibited under international law, there is significant consensus among United Nations human rights bodies that it can give rise to serious human rights violations and should be prohibited. The Human Rights Committee has recommended that provisions be taken against incommunicado detention, a position consistently reaffirmed by the U.N. Commission on Human Rights. 1
Access to counsel. Under the bill, the detainee would have access to a lawyer after 96 hours and then again after 120 hours. These interviews would be in addition to the one currently available to the detainee after the first 72 hours. Each interview may last only thirty minutes, and lawyers do not have access to the case file before these meetings. Under these circumstances, the lawyer is little more than an observer and can do little, if anything, to provide sound legal advice to his or her client.
Seriously limited access to counsel is troubling on several counts. First, police may interrogate the detainee without the presence of a lawyer during the entire period of custody, and statements made by detainees under these conditions are admissible in court. Second, detainees are not informed of their right to remain silent. It is our understanding that the right to be notified of this right was introduced into the Code of Criminal Procedure in 2000 only to be stricken in 2003. The result is a heightened susceptibility to unlawful pressure. Finally, the lack of access to a lawyer seriously undermines the ability of the detainee to challenge the lawfulness of the detention.
The right of all persons accused of a crime to the assistance of a lawyer is a fundamental procedural guarantee. The U.N. Human Rights Committee and the European Court of Human Rights have held that the right to an effective defense provided for in the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) is applicable to periods in police custody.2 The Human Rights Committee expressed its concern about the lack of access to a lawyer during the first 72 hours in police custody in France back in 1997, and recommended at that time that anti-terrorism laws “be brought fully into conformity with the requirements of articles 9 and 14 of the Covenant.”3 Furthermore, the European Committee for the Prevention of Terrorism (CPT) since 1996 has repeatedly recommended that detainees in police custody have access to a lawyer from the outset of detention as a fundamental guarantee against ill-treatment. In its most recent report, based on a visit to France in 2003, the CPT regretted that France had yet to implement its recommendations.4
Judicial supervision. The bill gives the Liberty and Custody Judge the authority to grant the two 24-hour extensions beyond the first 96 hours in police custody. There is no provision for the detainee to be brought before the judge before this authorization is granted, and a sub-amendment that would have required the judge to speak with the detainee’s lawyer before taking the decision was rejected in the National Assembly. Indeed, M. Alain Marsaud, the rapporteur for the Commission on Laws, objected to this requirement precisely because it would have created an additional hearing before the judge, a view supported by Justice Minister Pascal Clément.
The failure to impose stronger safeguards in the new regime compounds the current situation of inadequate judicial supervision. After the first 48 hours in custody, the prosecutor, investigating magistrate or the Liberty and Custody Judge may authorize the first two 24-hour extensions. Article 706-88 of the Code of Criminal Procedures stipulates that the judicial authority must see the detainee before granting the first extension but not the second. Human Rights Watch was told by criminal defense lawyers in France that, in practice, the extensions are automatic and detainees are not always produced before the competent judicial authority.
We take the view that detainees should be brought systematically before a judge. The European Convention on Human Rights stipulates that all persons arrested “shall be brought promptly before a judge or other officer authorized by law to exercise judicial power” (art. 5(3)). While the European Court of Human Rights has refrained from establishing a precise time-limit within the meaning of the word “promptly,” the Court has held that the importance attached to the special features of a case cannot serve to impair the essence of the right to appear before a judge. For example, in the case of Brogan v. U.K., the Court found that article 5(3) had been violated in the cases of four individuals held in police custody for periods ranging from four days and eleven hours to six days and sixteen and a half hours without being brought before a judge. Based on the Court’s case law, it is likely that a six-day police detention without a hearing with a judge would be incompatible with France’s obligations under the ECHR.
Notification of third parties. The bill stipulates that detainees who have been denied the right to notify a third party about the detention may reiterate their request to do so after four days in custody. Article 63-2 of the Code of Criminal Procedure currently allows the prosecutor, upon recommendation of the judicial police officer, to deny the detainee the right to notify a third party about the detention from its outset. It is our understanding that this denial is the norm, rather than the exception, in terrorism-related cases. The current wording of the bill suggests that while the detainee may reiterate their request, the prosecutor retains the discretion to renew the denial. The CPT has taken the view that a maximum limit of forty-eight hours before a detainee has the right to notify a third party of his or her detention would strike a better balance between the requirements of the investigation and the interests of detained persons.
Medical examination. One of the principal concerns about incommunicado detention is that it creates conditions that facilitate the commission of torture or other forms of mistreatment. With this in mind, international human rights bodies have repeatedly stressed the importance of medical exams as a safeguard against such acts. Human Rights Watch is aware that detainees subject to an extended police custody have the right to request a medical exam, that such an exam is obligatory when custody is extended beyond 48 hours, and that the draft law would impose a medical examination at the beginning of each 24-hour extension beyond 96 hours. The wording of the text suggests that the purpose of this examination is to verify that the detainee does not have any medical problems that would preclude the extension: “the doctor must make a pronouncement on the compatibility of the extension of the measure with the concerned party’s state of health.”
Human Rights Watch believes that medical examiners, who under the current system are designated by a judicial authority, should be specially trained to inquire about and detect all forms of prohibited ill-treatment. We also share the view of the Human Rights Committee and the CPT that detainees should have the right also to be examined by a doctor of their own choosing as an additional safeguard against ill-treatment.
Human Rights Watch acknowledges the obligation of the French government to protect its citizens from potential terrorist attacks. However, France also has an equally paramount duty to uphold fundamental human rights, including the right to presumption of innocence, the right to an effective defense, and the right to a fair trial within a reasonable amount of time. We urge you to take this opportunity to strengthen the procedural safeguards for terrorism suspects in police custody by including in the current legislation:
- Access to legal counsel from the outset of detention and throughout the period of detention;
- The right to confer privately with their lawyer for unlimited amounts of time and in conditions that guarantee confidentiality;
- The right to have a lawyer present during police interrogations;
- A responsibility to inform detainees of their right to remain silent;
- The right to be promptly brought before a judge;
- The right to challenge the lawfulness of the detention from its outset;
- Medical examination by a doctor of their own choosing and the right to raise allegations of ill-treatment; and
- The right to notify a third person of their choice from the outset of their detention. Any delay should be exceptional and as short as absolutely necessary.
The French counter-terrorism model is widely regarded as among the most effective in Europe. France is right to use the criminal justice system to fight terrorism, but respect for human rights and the rule of law must be an integral part of that effort.
Thank you for your consideration.
Europe and Central Asia Division
Human Rights Watch
1United Nations Human Rights Committee, General Comment No. 20, para. 1; see also United Nations Commission on Human Rights, Resolution 2003/32, para. 14.
2The Human Rights Committee held that the provision of the UK’s Terrorism Act 2000 allowing suspects to be detained for 48 hours without access to a lawyer was of “suspect compatibility” with articles 9 and 14 of the ICCPR. CCPR/CO/73/UK, para. 13 (2001). The European Court of Human Rights similarly held that article 6 of the ECHR applies even in the preliminary stages of a police investigation. In the Imbroscia v. Switzerland judgement, the Court stated that “Certainly the primary purpose of article 6 as far as criminal matters are concerned is to ensure a fair trial by a ‘tribunal’ competent to determine any criminal charge,’ but it does not follow that the Article (Art. 6) has no application in pre-trial proceedings” and that the requirements of Article 6(3), including the right to legal assistance, “may…be relevant before a case is sent to trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them.” Imbroscia v. Switzerland (13972/88)  ECHR 56 (24 November 1993), ECHR, Series A, No. 275, para. 36.
3United Nations Human Rights Committee, Concluding Observations: France, CCPR/C/79/Add.80, 4 August 1997, para. 23.
4European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Rapport au Gouvernement de la République française relatif à la visite effectuée en France par le Comité européen pour la prévention de la torture ou des peines ou traitements inhumains ou dégradants du 11 a 17 juin 2003, CPT Inf (2004) 6, para. 63.