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(Paris) - The French government's proposals to overhaul the criminal justice system should be revised to strengthen protections for people in police custody, especially for people accused of the most serious crimes, Human Rights Watch said today. The government today began a consultation process on a long-awaited draft bill to reform the code of criminal procedure.

Human Rights Watch said it was especially concerned with relatively weak changes in the right to access to a lawyer. All suspects should have access to a lawyer as soon as they are taken into custody and throughout questioning and should be informed of their right to remain silent, Human Rights Watch said

"The French government should take seriously the calls to deliver proper safeguards for all suspects in police custody," said Judith Sunderland, senior researcher for western Europe at Human Rights Watch. "Otherwise it will miss a perfect opportunity to fix the country's shortcomings when it comes to fair trial rights."

The government's draft bill proposes far-reaching changes to the criminal justice system, including transferring responsibility for leading investigations from judges to prosecutors. But it makes only minor adjustments to the rules governing access to a lawyer for suspects in police custody. And it does not strengthen the weak safeguards for those accused of terrorism or organized crime, continuing to allow questioning of suspects for up to 3 days without a lawyer present.

The complex proposals include allowing suspects in ordinary criminal cases to talk with a lawyer after 12 hours in custody, instead of the current 24 hours, in addition to an existing visit at the outset of detention. But suspects could still be questioned during the first 24 hours without a lawyer. These changes were recommended by a government-appointed commission, known as the Léger Committee, in September 2009.

The proposals do not overturn a provision introduced in 2003 that eliminated a requirement for the police to inform suspects of their right to remain silent during interrogation.

The draft bill retains severe limitations on access to a lawyer in cases involving serious crimes. Suspects in drug-trafficking investigations would be able to see a lawyer after 48 hours (one day earlier than currently). But the rules for terrorism suspects would remain unchanged, with no access to a lawyer for up to three days, in the face of what can be many hours of questioning. After three days, these suspects are allowed a half hour with a lawyer .but then can be questioned for another 24 hours before they may see a lawyer again. In exceptional cases, the law permits authorities to hold a suspect in police custody for up to six days, with first access to a lawyer after 96 hours, or four days.

"The idea that there should be fewer safeguards for those accused of the most serious crimes is topsy-turvy," Sunderland said. "It is precisely when a suspect is accused of the most serious crimes that there is the greatest temptation to bend the rules to get a conviction."

The draft legislation ignores the Léger Committee's recommendation for obligatory audio and video-recording of all interrogations in police custody. While such recordings were made mandatory in ordinary criminal cases in 2007, interrogations of drug-trafficking, organized crime, and terrorism suspects remain exempt under the proposals.

Having a lawyer present during questioning both insures the integrity of criminal proceedings and supports the right of suspects to present an effective defense, Human Rights Watch said. The National Bar Association, among others, has long called for significant reform of police custody rules, including the presence of a lawyer during interrogations. It is standard practice in many countries in Europe, including Germany, Spain, Italy, Poland, and the United Kingdom.

In a separate development, lawyers asked the Constitutional Council on March 1, 2010 to examine whether the provisions of the Code of Criminal Procedure governing police custody violate the rights to defense, to a fair trial, and to individual liberty. A reform of the Constitutional Council, which came into force on March 1, allows citizens to bring constitutional challenges to laws. Previously, only the president, the prime minister, the heads of the two chambers of parliament, or a group of sixty or more parliament deputies or senators could challenge laws on constitutional grounds.

The United Nations Human Rights Committee urged France in July 2008 to ensure that terrorism suspects have prompt access to a lawyer, be told of their right to remain silent under questioning, and be brought promptly before a judge. The European Court of Human Rights has said in cases involving the UK that denying access to a lawyer even for 24 hours of questioning in terrorism investigations violates the European Convention on Human Rights because the rights of the defense can be "irretrievably prejudiced" during that period.

In recent judgments against Turkey, the Court has emphasized that fair trial rights, as a rule, require access to a lawyer "from the first interrogation...by the police" (Salduz v. Turkey, November 2008) and that systematic denial by law of such access violates the protections under the Convention (Dayanan v. Turkey, October 2009).

French courts have begun to challenge the validity of statements made in police custody without a lawyer present. On January 20, the Court of Appeal in Nancy excluded statements made during police custody by two suspects in a drug-trafficking case on the ground that lack of access to a lawyer during the first 72 hours was incompatible with the European Convention on Human Rights. The Paris Correctional Court recently annulled the police custody of five individuals on similar grounds.

Prompt access to a lawyer is also a fundamental safeguard against torture and ill-treatment. In the course of research on counterterrorism laws and procedures in France, Human Rights Watch heard disturbing accounts of physical violence and other ill-treatment in police custody. A half hour with a lawyer three days after arrest is no protection against such abuse, Human Rights Watch said. That is why the European Committee for the Prevention of Torture has urged France repeatedly since 1996 to allow all suspects in police custody to see a lawyer from the very outset of detention.

"The government's proposals do very little to fix a complicated system in which rights are delayed or denied depending on the crime," Sunderland said. "It's really pretty simple: all suspects, no matter the accusations against them, deserve a proper defense and protection against ill-treatment in custody."

To ensure that the reform of the code of criminal procedure brings it in line with France's obligations under international human rights law, the government should amend the draft bill to give all suspects in police custody:

  • The right to have a lawyer from the outset of detention and throughout the period of detention;
  • The right to speak privately with a lawyer without time limits;
  • The right to be interrogated only in the presence of a lawyer; and
  • The right to be notified of their right to remain silent.

In addition, Human Rights Watch said, lawyers assisting suspects in police custody should have access to sufficient information about the evidence against their clients to provide meaningful legal advice. Finally, video and audio recordings should be required for all interrogations in police custody.

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