We welcome this opportunity to submit for your consideration our recommendations as you undertake your vital study of reforms to the Criminal Code and the Criminal Code of Procedure.  In our report Preempting Justice: Counterterrorism laws and procedures in France, published in July 2008, we analyzed France's criminal justice approach to countering terrorism.  We draw on the findings of that in-depth research to outline here the key reforms we consider necessary to bring French counterterrorism laws and practices in line with international human rights standards.  In doing so, we discuss issues covered in the Commission's preliminary report as well as issues we believe the Commission should address as it continues its study. 

Human Rights Watch is convinced that effective use of the criminal justice system is the best way to counter terrorism while upholding the rule of law.  France's duty to protect its population from acts of terrorism is matched by its obligations under European and international human rights law to ensure that its counterterrorism efforts are compatible with coexisting human rights protections, including the rights of those deemed to pose a threat.  Our research indicates that French counterterrorism laws and procedures undermine the right of those facing charges of terrorism to a fair trial.

In our view, the broad definition of the offense of "criminal assocation in relation to a terrorist undertaking" lacks legal precision, giving rise to arrests, lengthy periods of pretrial detention and convictions on the basis of weak evidence.  The lack of adequate safeguards during police custody undermines the right of detainees to an effective defense at a critical stage in the proceedings, and exposes them to the risk of ill-treatment.  The use of intelligence material, including information coming from third countries with poor records on torture, in terrorism investigations and trials raises a particular concern about the use of torture evidence in legal proceedings in France.  We discuss these concerns in greater detail below.

Human Rights Watch does not take a position on the proposed elimination of investigating judges, entrusting the Public Prosecutors Office with all criminal investigations, and the creation of a new "juge de l'enquete et des libertes" (JEL) tasked with judicially supervising the work of the Prosecutors Office.  International human rights law does not mandate specific arrangements in this respect.  However, while it is difficult to evaluate at this stage, we are not convinced a change of this nature would address our fundamental concerns in relation to pretrial detention and the reliance on intelligence material, including from countries with poor records on torture, in terrorism investigations and legal proceedings.  We also note widespread concerns about the lack of independence of the Public Prosecutors Office and the potential for interference by the executive branch in sensitive or controversial cases.  While international law does not require institutional independence of prosecutors, sufficient safeguards must be in place to ensure that prosecutors are able to conduct investigations impartially and objectively. 

France has been at the forefront of efforts to advance respect for international human rights law, and as well as expand its boundaries, worldwide.  It has also become an authoritative voice on counterterrorism issues.  France can best demonstrate its leadership in both fields by ensuring that its counterterrorism laws and procedures are fully compliant with the entire range of human rights obligations.  Therefore, we urge you to seize this opportunity to support our recommendations for reform of the Criminal Code and the Code of Criminal Procedure.

Consolidated Recommendations

Recommendation #1-Amend the definition of the offense of "criminal association in relation to a terrorist undertaking" in Article 421-2-1 of the Criminal Code to:

  • Provide a non-exhaustive list of types of behavior likely to attract criminal sanction; and
  • Clarify that intent to participate in a criminal association in relation to a terrorist undertaking must be fully demonstrated beyond a reasonable doubt.

Recommendation #2-Amend the Code of Criminal Procedure to Improve safeguards in police custody:

  • Provide access to a lawyer from the outset of detention and throughout the period of detention;
  • Allow suspects to confer privately with a lawyer without time limits;
  • Give suspects the right to be questioned by the police only in the presence of a lawyer;
  • Ensure that a suspect's lawyer has access to sufficient information about the evidence against them to provide appropriate legal advice;
  • Ensure that suspects are notified of their right to silence;
  • Grant suspects the right to request a medical examination by a doctor of their own choosing; and
  • Ensure that all interrogations are video- and audio-recorded.

Recommendation #3-Prevent unjustified lengthy pretrial detention:

  • Confirm the procedure for periodic renewal of pretrial detention, ensuring that the detainee is assisted by a lawyer at the hearing;
  • Ensure that the competent judge is assigned permanently to the dossier for an individual detainee so that he or she reviews every decision with respect to renewal and appeals for provisional liberty;
  • Ensure that the competent judge has adequate time to review the merits of the case and provide fully-reasoned decisions with respect to remand and continuation of pretrial detention.
  • Ensure that all decisions with respect to pretrial detention are taken by a panel of judges.

Recommendation #4-Guarantee that torture evidence is not introduced into legal proceedings:

  • Amend the Code of Criminal Procedure to state explicitly that evidence extracted under torture or ill-treatment, regardless of its provenance, is not admissible at any stage in legal proceedings and investigations by judges and prosecutors.
  • Impose a statutory obligation on investigating judges-or JELs should that reform be adopted-to assess whether intelligence material was obtained under torture.

Detailed Analysis and Recommendations

Recommendation #1-Amend the definition of the offense of "criminal association in relation to a terrorist undertaking" in Article 421-2-1 of the Criminal Code to:

  • Provide a non-exhaustive list of types of behavior likely to attract criminal sanction; and
  • Clarify that intent to participate in a criminal association in relation to a terrorist undertaking must be fully demonstrated beyond a reasonable doubt.

With a view to informing your analysis of reforms to the Criminal Code, we draw your attention to our concerns regarding the offense of "criminal association in relation to a terrorist undertaking."  Our research indicates this offense lacks legal precision.  The well-established principle of legality, enshrined in article 7 of the European Convention on Human Rights (ECHR), 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.[1] 

Article 421-2-1 of the Criminal Code defines "association de malfaiteurs en relation avec une entreprise terroriste" as "the participation in any group formed or association established with a view to the preparation, marked by one or more material acts, of any of the acts of terrorism provided for under the previous articles."  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 by one or more material acts.  There is no requirement that any of the participants take concrete steps to implement execution of a terrorist act.

Both the letter of the law and jurisprudence allow for an expansive interpretation of the offense.  Lack of precision in the law means that 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.  Law enforcement authorities enjoy too much latitude for arbitrary action, with decisions to arrest and place under formal investigation based on a low standard of proof and an approach that favors casting a wide net.  Most investigations into alleged Islamist terrorist activity in France are based on mapping of networks of contacts.  This has led 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.

In an April 2006 communication to the French government, United Nations Special Rapporteur on the protection of human rights while countering terrorism Martin Scheinin expressed concerns about the expansive definition of terrorism offenses in the Criminal Code.[2]

Foreign jurisdictions have cast doubt on the evidential basis of some convictions for criminal association in relation to a terrorist undertaking.  In 2002, for example, a German court refused to extradite Abdellah Kinai, an Algerian with refugee status in Germany, to France to complete a five-year prison sentence, citing lack of legal grounds.  With respect to Kinai's alleged membership in a criminal association to commit terrorism, the German 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."[3] 

Recommendation #2-Improve safeguards in police custody

The lack of sufficient safeguards in police custody in terrorism cases is incompatible with international human rights law.  Our research indicates that the combination of constraints on the rights of suspects in police custody in terrorism cases creates a situation in which detainees are denied the right to an effective defense at a critical stage and are vulnerable to prohibited ill-treatment.  We are aware that some of these constraints apply to all suspects in police custody; our recommendations for improving safeguards should be understood to apply to all police custody regimes.

French law provides for one of the longer periods of police custody in terrorism cases in continental Europe.  Under the Code of Criminal Procedure (CCP), terrorism suspects may be held for up to six days before being brought before a judge.  In practice, a four-day detention period in terrorism investigations is standard.

  • Ensure access to a lawyer from the outset of detention, the right to confer privately with a lawyer without time limits, and ensure that the lawyer has access to sufficient information to provide appropriate legal advice

Terrorism suspects have severely curtailed access to legal counsel.  Pursuant to CCP article 63, those arrested on suspicion of involvement in terrorism have access to a lawyer only after 72 hours, or three days, in police custody.  If detention is extended 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 custody.  Visits are limited to 30 minutes, and counsel does not have access to any detailed information about the charges against their client.

The limited amount of time lawyers have to meet with their clients and the limitations on their abilities to acquaint themselves with the investigation and the charges place severe restrictions on the ability of these lawyers to effectively defend their clients at a critical stage in the proceedings.  

The European Court of Human Rights takes the view that counsel for individuals deprived of their liberty should have access to sufficient information to be able to challenge adequately the lawfulness of detention.[4]  While these cases concerned habeas corpus proceedings for individuals in detention on remand, Human Rights Watch believes the principle of equality of arms applies to situations of detention in police custody.  The Court consistently stresses that the ECHR guarantees "not rights that are theoretical or illusory but rights that are practical and effective; this is particularly so of the rights of the defence in view of the prominent place held in a democratic society by the right to a fair trial."[5] 

The right of all persons accused of a crime to the assistance of a lawyer is a fundamental procedural guarantee.  Article 14 of the International Covenant on Civil and Political Rights (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 to 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 of police custody.[6]  In its concluding observations on France's compliance with its obligations under the ICCPR, the Human Rights Committee has in 1997 and most recently in 2008 urged France to ensure that terrorism suspects in custody have prompt access to a lawyer.[7]

The UN Basic Principles on the Role of Lawyers requires that all arrested, detained or imprisoned persons should be able to communicate and consult with a lawyer "without delay, interception or censorship and in full confidentiality."[8]  A 2003 European Commission Green Paper on procedural safeguards for suspects and defendants in criminal proceedings reflects these standards in conforming that the right to legal representation "arises immediately upon arrest."[9]

Prompt and meaningful access to a lawyer during police custody is also a fundamental safeguard against torture and prohibited ill-treatment.  The European Committee for the Prevention of Torture (CPT), an authoritative human rights body of the Council of Europe, has repeatedly called on France to allow detainees access to a lawyer from the outset of detention in all of its reports since 1996.[10] 

  • Guarantee the right to be questioned by the police in the presence of a lawyer and the right to be notified of the right to silence

The existing framework for police interrogations seriously undermines the right to an effective defense at a critical stage in the proceedings.  Detainees in police custody, regardless of the nature of alleged offense, are questioned without the presence of a lawyer and are not notified of their right to remain silent.  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, and may be used against the defendant at trial.  While the final police report must list the time of all interrogations, there are no rules establishing limits on these interrogations or the amount of rest a detainee must have between interrogations.

While international human rights law does not explicitly require the presence of a lawyer during questioning, there is increasing recognition that this right is a critical element in ensuring a fair and just investigative stage in criminal proceedings. This consensus is reflected in the recently adopted codes of criminal procedures in Council of Europe countries such as Estonia, Latvia and Lithuania.  Questioning in the presence of a lawyer is also standard practice in many countries of the European Union, including Germany, Spain, Italy, Poland and the United Kingdom, and constitutes European best practice. A 2003 European Commission Green Paper on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union stipulated that suspects should be entitled to have legal representation "through the questioning and interview stages of the proceedings."[11] 

The European Court has ruled in a series of cases that the right to a fair trial requires that suspects benefit from the assistance of a lawyer at the initial stages of police interrogation "in a situation where the rights of the defense may well be irretrievably prejudiced."[12]  In Magee v. the United Kingdom, the Court found a violation of ECHR article 6 because Magee was denied access to a lawyer for 48 hours of interrogations while detained under conditions strikingly similar to those that obtain in terrorism police custody in France.   For this period of time, Magee was denied contact with anyone but his interrogators and a forensic doctor, and questioned intensively.  The Court held that the "conditions of his detention and his exclusion from outside contact were intended to be psychologically coercive" and that procedural fairness required that he have access to a lawyer at the initial stages of the interrogation "as a counterweight to the intimidating atmosphere specifically designed to sap his will and make him confess to his interrogators."[13] In Averill v. the United Kingdom, the Court found that similar denial of access to a lawyer during the first 24 hours of police questioning "must still be considered incompatible with the rights guaranteed ... by Article 6."[14]

The CPT stated in its 2000 report on France that "the right to access to a lawyer must also include the right of the person deprived of liberty to benefit from the presence of a lawyer during every interrogation conducted by the police."[15]

The fact that detainees are not informed that they may remain silent under police questioning further impairs their right to an effective defense. It is our understanding that the notification of the right to silence was incorporated into the CCP in 2000, but was removed again in 2003 under intense lobbying from law enforcement.  Then Council of Europe Commissioner for Human Rights Alvaro Gil-Robles criticized France's "retreat on this point as highly deleterious, since concealing legal rights is never a good thing."[16]

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 ECHR article 6 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."[17]

We note that the Paris Court of Appeals recently considered the failure to notify suspects of the right to remain silent a violation of the right to an effective defense. The judgment overturned the conviction of five former Guantanamo Bay detainees for criminal association in relation to a terrorist undertaking in part because the defendants were interrogated by investigators from the Directorate for Territorial Surveillance (DST) while in the U.S. detention facility "without being told of their right to silence" and having been "led to believe [that] their statements were necessary in order to obtain their repatriation to France and were thus not in a position to understand that they [the statements] could be used against them."[18]

  • Give suspects the right to a medical examination by a doctor of their own choosing and ensure that all interrogations are video- and audio-recorded

 

Authorities have a special duty to protect individuals in police custody from torture and ill-treatment.  The European Court of Human Rights has stressed the absolute nature of the prohibition of torture or cruel, inhuman or degrading treatment or punishment under ECHR article 3.  In Tomasi v. France, involving a French citizen accused of participating in a terrorist attack in Corsica, the Court underlined that "the undeniable difficulties inherent in the fight against...terrorism cannot result in limits being placed on the protection to be afforded in respect of the physical integrity of individuals."[19]

As mentioned above, the presence of a lawyer from the outset of detention, including during interrogations, is a fundamental guarantee against prohibited ill-treatment.  Timely, competent and impartial medical examinations constitute another important safeguard.  In this regard, we believe that suspects should have the right to request a medical examination by a doctor of their own choosing.  The CPT has repeatedly urged France to institute such a right, while acknowledging that this second examination may be conducted in the presence of the state-appointed forensic doctor.[20]

We welcome the Commission's recommendation in your preliminary report that all police interrogations, regardless of the nature of the offense, be video- and audio-recorded.  We encourage you to maintain this recommendation in your final report, and clarify explicitly that interrogations of terrorism suspects should no longer be exempted from this requirement.

Recommendation #3-Prevent unjustified lengthy pretrial detention

  • Confirm the procedure for periodic renewal of pretrial detention, ensuring that the detainee is assisted by a lawyer at the hearing;
  • Ensure that the competent judge is assigned permanently to the dossier for an individual detainee so that he or she reviews every decision with respect to renewal and appeals for provisional liberty;
  • Ensure that the competent judge has adequate time to review the merits of the case and provide fully-reasoned decisions with respect to remand and continuation of pretrial detention;
  • Ensure that all decisions with respect to pretrial detention are taken by a panel of judges.

Individuals placed under official investigation in terrorism cases may be remanded to pretrial detention for a significant amount of time.  Criminal association in relation to a terrorist undertaking, a minor felony offense punishable by up to ten years in prison, gives rise to a maximum three years in pretrial detention (and the Investigating Chamber may extend this by an additional four months in exceptional cases).  Serious felony terrorism offenses, punishable by over ten years in prison, give rise to four years in prison (and the Investigating chamber may extend by two four-month periods in exceptional circumstances). 

Our research indicates there is a strong presumption in favor of pretrial detention in cases involving suspicion of criminal association in relation to a terrorist undertaking, even when there is little evidence of wrongdoing.  This appears to be linked to the overly broad definition of the offense, the length and complexity of terrorism investigations, as well as a bias toward caution among the liberty and custody judges (JLD) currently tasked with deciding on remand to pretrial detention.  While JLDs are supposed to take decisions on the basis of the merits of the case file, in practice they appear to evaluate only the criteria for pretrial detention and follow the recommendations of the prosecutor and the investigating judge. A further problem is that there is no guarantee of continuity of JLD oversight, as there is no rule or guideline to ensure that the JLD who first remanded someone into detention will decide on renewals or release.

In its recent concluding observations on France's compliance with the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee expressed its concern with lengthy pretrial detention for terrorism suspects, concluding that an "institutionalized practice of extended detention for investigative purposes...is difficult to reconcile with the right guaranteed in the Covenant to be tried within a reasonable time."[21] The Committee recommended that France limit pretrial detention and strengthen the role of liberty and custody judges.  
 
In your preliminary report, the Commission makes recommendations with respect to both the procedure for ordering pretrial detention as well as the length of such detention. It proposes transferring the tasks of the JLD to the newly created JEL. It recommends reducing the maximum terms of pretrial detention to one year for minor felony offenses punishable by five to ten years in prison, two years for serious felony cases, and three years in terrorism and organized crime cases. We welcome the Commission's proposal that decisions on remand into pretrial detention be made by a panel of judges, including the JEL.  But the proposed reform is weakened at the outset by the inclusion of a discretion of the JEL to take the decision on his or her own. 

Human Rights Watch believes that any reform must address the fundamental weaknesses of the current system for remand into pretrial detention.  In order for the JEL to perform his or her duties correctly, we believe steps must be taken to ensure their full independence and autonomous decision-making, free from any kind of pressure from prosecutors, as well as to ensure they have the clear duty and adequate time to study the merits of the evidence before taking the initial decision.

Although we welcome the Commission's recommendation that detainees have the right to provisional release where no investigative steps are taken for three months, we are concerned that the elimination of the requirement for periodic review would reduce significantly the opportunities for detainees and their lawyers to contest effectively pretrial detention.  Currently, the JLD must hold a hearing with the detainee (although the assistance of a lawyer is not a statutory right at these hearings) every time pretrial detention is renewed.  The JLD does not hold a hearing when examining appeals for provisional liberty, which detainees may submit at any time.  With the elimination of periodic renewal of detention, it is therefore foreseeable that the JEL would not see the detainee or his or her lawyer beyond the first hearing in which pretrial detention is ordered. 

We also note that while a three-year maximum for serious felony terrorism cases would represent a reduction from the current four years, it would impose no change to the maximum currently in place for the minor felony offense of criminal association in relation to a terrorist undertaking. In our view, the proposal fails to tackle the serious problem of excessive pre-charge detention in terrorism cases, especially given that most national security suspects are detained on charges of criminal association in relation to a terrorist undertaking.

 

Recommendation #4-Guarantee that torture evidence is not introduced into legal proceedings

  • Amend the Code of Criminal Procedure to state explicitly that evidence extracted under torture or ill-treatment, regardless of its provenance, is not admissible at any stage in legal proceedings and investigations by judges and prosecutors.
  • Impose a statutory obligation on investigating judges-or JELs should that reform be adopted-to asses whether intelligence material was obtained under torture.

Human Rights Watch is concerned that criminal procedures in terrorism cases lack sufficient safeguards to ensure that evidence obtained under torture or prohibited ill-treatment is not used at any stage of legal proceedings in France.  Intelligence material, including information coming from third countries, is often at the heart of terrorism investigations.  While intelligence material has a legitimate role in the effective prosecution of terrorism offenses, authorities have a duty to exclude any information where there is a real risk that it was obtained under torture.

The absolute prohibition against torture under international law permits no exceptions or derogations and extends to the use of information extracted 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.  The use of evidence obtained by torture or ill-treatment is prohibited not only because it is unreliable but because, in the words of the European Court of Human Rights, its use "would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Art. 3 of the [European] Convention [on Human Rights] sought to proscribe."[22]

Individuals subjected to torture or prohibited ill-treatment in a third country and then prosecuted in France have the opportunity to contest the use of this evidence, sometimes successfully.  There is very little scope, however, for challenging information that may have been unlawfully obtained if the victim is not one of the defendants. 

Our research indicates that there is insufficient judicial verification of intelligence material in terrorism investigations.  In practice, security services provide prosecutors and specialized investigating judges information they have obtained through intelligence-gathering methodologies, including cooperation with third countries.  Investigating judges may then order any number of investigative steps, including arrests, on the basis of this intelligence, without exercising any control over the legitimacy of the methods used to obtain the information. 

We acknowledge that criminal procedure in France requires the collection of corroborating evidence through judicially-authorized investigative steps and statements made by the accused to judicial officials.  We remain concerned, however, that information gathered on international inquiry commissions, in which French judges travel to other countries to participate in, or observe, interrogations, enjoys considerable legitimacy at trial regardless of the conditions of confinement or treatment of the detainee before or after the inquiry commission.  We further note that, in the ruling mentioned above with respect to five former Guantanamo Bay detainees, the Paris Court of Appeals overturned the lower court's conviction even though the accused had repeated to the investigating judge statements they had originally made to DST officials in Guantanamo in part because these were originally made "in a particular psychological state."

We recognize that the proposed reform would transfer direction of the investigation from the investigating judge to the prosecutor. It is not clear, however, that this reform would improve accountability and control over intelligence information without additional safeguards, including a clear obligation to evaluate whether intelligence material was obtained under torture. 


[1] European Court of Human Rights, Kokkinakis v. Greece, Judgment of May 25, 1993, Series A, no. 260-A, para. 52.

[2] Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Addendum: Communications with Governments, U.N. Doc A/HRC/4/26/Add.1, March 15, 2007, para. 22.

[3] Stuttgart Higher Regional Court ruling of April 17, 2003, quoted in Abdellah Kinai's complaint to the European Court of Human Rights against France for violations of articles 5, 6, 7 and 8, filed in August 2003.  The European Court rejected the complaint as inadmissible in September 2007.  Original in German, translation by Human Rights Watch.

[4] See for example, European Court of Human Rights, Lamy v. Belgium, Judgment of 30 March 1989, Series A no. 151; Lietzow v. Germany, no. 24479/94, ECHR 2001-I.

[5] European Court of Human Rights, Artico v. Italy, Judgment of 13 May 1980, Series A no. 37, para. 33

[6] The 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. 19 (2001).  In the Imbroscia v. Switzerland judgment, the Court stated that "[c]ertainly 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 to 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."  Imbrioscia v. Switzerland, Judgment of 24 November 24 1993, Series A, no. 275, para. 36.

[7] Concluding Observations of the Human Rights Committee: France, 31 July 2008, CCPR/C/FRA/CO/4; Concluding Observations of the Human Rights Committee: France, 04/08/97, CCPR/C/79/Add.80, 4 August 1997, para. 23.

[8] Basic Principles on the Role of Lawyers, adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 118 (1990), number 8.

[9] European Commission, Green Paper from the Commission, Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union, COM(2003) 75, February 19, 2003, http://eur-lex.europa.eu.LexUriServ.do?uri=COM:2003:0075:FIN:EN:PDF, para. 4.3(a).

[10] European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), reports on visits conducted in 1996, 2000, 2003, and 2006.  All CPT reports on France are available at www.cpt.coe.int/en/states/fra.htm.

[11] European Commission Green Paper, para. 4.3(a).

[12] European Court of Human Rights, Murray v. the United Kingdom, Judgment of 8 February 1996, Reports of Judgments and Decisions 1996-I, para. 66; See also Averill v. the United Kingdom, no. 36408/97, ECHR 2000-VI, para. 60 and Magee v. the United Kingdom, no. 28135/95, ECHR 2000-VI, para. 44.

[13] European Court of Human Rights, Magee v. the United Kingdom, para. 43.

[14] European Court of Human Rights, Averill v. the United Kingdom, para. 60.

[15] CPT, Report to the Government of France on the visit conducted to France by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment and Punishment from May 14 to 26, 2000, http://www.cpt.coe.int/documents/fra/2001-10-inf-fra.pdf, para. 34.

[16] Report by Mr. Alvaro Gil-Robles, Council of Europe Commissioner for Human Rights, on the Effective Respect for Human Rights in France following his visit from 5 to 21 September 2005, CommDH(2006)2, February 15, 2006, para. 44.

[17] European Commission Green Paper, para. 4.3(b). 

[18] Cour d'Appel de Paris, Chambre 10A, no. rg 08/00786, arrêt rendu le 24/02/2009, p. 60.

[19] European Court of Human Rights, Tomasi v. France, Judgment of August 27, 1992, Series A, no. 241-A, para. 115.

[20] CPT reports on visits conducted to France in 1996, http://www.cpt.coe.int/documents/fra/1998-07-inf-fra.pdf, para. 40 and in 2000, http://www.cpt.coe.int/documents/fra/2001-10-inf-fra.pdf, para. 35.

[21] Human Rights Committee, Concluding Observations, July 2008, para. 15.

[22] European Court of Human Rights, Jalloh v. Germany [GC], no. 54810/00, Judgment of 11 July 2006, ECHR 2006-IX, para. 105.