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Human Rights Watch Submission to the National Assembly Law Commission

We welcome this opportunity to submit for your consideration our recommendations as you undertake your examination of the bill to reform police custody.  Our recommendations are grounded in international human rights law and informed by our in-depth research on France's criminal justice approach to countering terrorism, published in our July 2008 report Preempting Justice: Counterterrorism laws and procedures in France (Annex I).  We submitted a briefing paper to the Léger Commission in April 2009 outlining the key reforms we consider necessary to bring French counterterrorism laws and practices in line with international human rights standards, including reforms to police custody (Annex II). 

Human Rights Watch welcomes the intention to reform police custody to ensure effective exercise of the right to defense at a crucial stage in criminal proceedings.  We note with satisfaction the reintroduction of the obligation to notify suspects of their right to silence.  We are nonetheless concerned that the bill submitted by the government lacks the far-reaching reforms necessary to bring French criminal procedure in line with international human rights obligations.  We are particularly concerned that no reform is contemplated of the special police custody regimes for terrorism, organized crime and drug-trafficking cases.  Moreover, the reforms envisioned for police custody in all other criminal cases do not go far enough to ensure that all suspects are guaranteed the right to effective assistance by legal counsel and notification of their rights.

The weak safeguards during police custody in terrorism cases are incompatible with international human rights standards.  Our research indicates that the combination of constraints on the rights of suspects in police custody in terrorism cases compound to deny them the right to an effective defense at a critical stage. 

We urge you to use the current police reform bill to strengthen general safeguards and those for special cases to ensure that the France's criminal procedure fully complies with its obligations under human rights law.

In our assessment, the bill should be amended to ensure the right of all suspects in custody to:

  • Access to a lawyer for all suspects in custody from the outset of detention and throughout the period of detention;
  • Confer privately with a lawyer without time limits;
  • Be questioned by the police only in the presence of a lawyer, without possibility for delay or deferral of the exercise of this right;
  • Be notified of their right to silence;
  • Strong safeguards against ill-treatment, including
    • Video-recording of interrogations; and
    • A medical examination by a doctor of their own choosing.

We outline below our concerns with existing procedures and the shortcomings of the current draft legislation.

  • Ensure access to a lawyer from the outset of detention and the right to confer privately with a lawyer without time limits

The bill under examination confirms two existing provisions with respect to police custody in ordinary criminal cases: access to a lawyer at the outset of detention-designated by the suspect or court-appointed-and a private interview for 30 minutes. 

In our assessment the 30 minute time limit interferes with the right to an effective defense. 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 Court of Cassation concluded in an October 19, 2010, ruling, after the bill was submitted to parliament, that the right to defense under article 6 of the European Convention on Human Rights (ECHR) was violated in a situation in which the plaintiff "benefitted from the presence of a lawyer but not from his assistance in conditions allowing for the organization of his defense and to prepare with him the interrogations in which the lawyer, according to French legislation, could not participate."[1]

The European Court of Human Rights (ECtHR) 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.[2]  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 ECtHR 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 defense in view of the prominent place held in a democratic society by the right to a fair trial."[3] 

Currently under French law, the right of immediate access to a lawyer does not apply to suspects in terrorism, organized crime and drug-trafficking cases.  Terrorism and organized crime suspects in particular have severely curtailed access to legal counsel.  Pursuant to article 63 of the Code of Criminal Procedure (CCP), 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.  As in ordinary criminal cases, suspects are not notified of the right to remain silent, client-lawyer interviews are limited to 30 minutes, and counsel does not have access to any detailed information about the charges against their client.

In two decisions rendered on October 19, 2010, the Court of Cassation concluded that article 6 ECHR stipulates that all suspects have the right to legal assistance from the outset of detention principle and any exceptions must be justified by "imperative reasons deriving from the particular circumstances... and not solely by the nature of the alleged crime."[4] 

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 ECtHR have considered these provisions applicable to periods before trial, including the period of police custody.[5]  In its concluding observations on France's compliance with its obligations under the ICCPR, the UN 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.[6] 

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."[7]  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."[8]

The bill also creates a new procedure: the open hearing (audition libre) in which suspects consent to be questioned as an alternative to coercive police custody.  The bill does not place any time limits on the open hearing, and suspects would not have the right to a lawyer, the right to notify family members of their employer, or be notified of their other rights.  Under the terms of the government's proposal, the open hearing would be the procedure of choice, with recourse to coercive police custody only in cases involving infractions giving rise to prison terms and if it is the only means to ensure the presence of the individual, or to prevent destruction or modification of material evidence, pressure on witness or victims, contact with accomplices, or to guarantee the cessation of the crime.  Human Rights Watch takes the view that all persons in custody, whether under the open hearing procedure or in coercive police custody, should be notified of all their rights and have access to a lawyer.  

  •  Guarrantee the right to effective assistance by legal counsel during interrogation

The bill under examination provides for the presence of a lawyer during police questioning in ordinary criminal cases.[9]  It nonetheless gives the prosecutor's office the authority, upon request by the judicial police officer, to deny the presence of a lawyer for up to twelve hours "when this measure appears necessary, considering the particular circumstances of the investigation, either to allow for the proper conduct of urgent investigations, to collect or preserve evidence, or to prevent imminent harm to persons."   In our view, suspects should have the right to be questioned only in the presence of a lawyer regardless of the nature of the alleged crime or the "particular circumstances" of ongoing investigations.

The bill establishes the general right of the lawyer to see the transcripts of interrogations.[10]  However, in cases where the presence of the lawyer during questioning is delayed by up to twelve hours, the right to see the transcripts of interrogations conducted during this period is denied.[11]  These exceptions essentially preserve the status quo: suspects may be questioned without a lawyer, and the lawyer cannot know the details of statements made by his or her client under questioning.

While international human rights law does not explicitly require the presence of a lawyer during police 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, Ireland, 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."[12] 

The ECtHR 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."[13]   The ECtHR reaffirmed this principle in its October 2010 ruling in the case of Brusco v. France, in which the plaintiff was never informed of his right to remain silent under questioning, did not benefit from the presence of a lawyer during interrogations, and indeed only had access to counsel after twenty hours of police custody. [14]  The ECtHR concluded,

The lawyer was thus not in a position to inform him of his right to remain silent and to not incriminate himself before his first interrogation nor to assist him during this deposition and those that would follow, as required by article 6 of the Convention.[15]

In Magee v. the United Kingdom, the ECtHR 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 ECtHR held in Magee 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."[16] In Averill v. the United Kingdom, the ECtHR 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."[17]

  • Improve safeguards against ill-treatment

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 ECtHR 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."[18]

Prompt and meaningful access to a lawyer during police custody, discussed above, is a fundamental safeguard against torture and prohibited ill-treatment.  

During research in 2007-2008 Human Rights Watch documented a pattern of oppressive questioning in terrorism investigations in France, involving sleep deprivation, disorientation, constant, repetitive questioning and psychological pressure.[19]

The UN Committee against Torture expressed its concern in May 2010 about delayed access to lawyers because "it is during the first few hours after arrest that the risk of torture is greatest, particularly when a person is being held incommunicado."[20]  The Committee reiterated its recommendation that legislative reform be adopted to ensure immediate access to a lawyer in all cases.[21]

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.[22] 

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.[23]  The bill under examination, while stipulating that medical examinations should as a rule be conducted within three hours of the request by a person in custody, fails to provide for the right to designate a private doctor. 

Audio and video-recording of interrogations during police custody are an effective measure to prevent both ill-treatment and false accusations of ill-treatment.  Under current law, terrorism, drug trafficking and organized crime cases are excluded from the obligation to record police interrogations and hearings before the judge.  The bill does not remedy this lacuna.  We recall that the Léger Committee recommended that all police interrogations, regardless of the nature of the offense, be recorded.[24]  In May 2010, the UN Committee against Torture urged France to make video recording a "standard procedure."[25]  The bill to reform police custody should be amended to remove all exemptions and institute obligatory audio and video-recording of interrogations of suspects in terrorism, organized crime and drug-trafficking cases.

Recommendations

We urge the Commission to to propose the following specific reforms to the criminal procedure code in the current bill.

  • Allow access to a lawyer from the outset of detention in all cases, including in terrorism, organized crime, and drug trafficking case, and the open procedure;
  • Remove the 30 minute time limit on the right to confer privately with a lawyer while in police custody;
  • Prohibit the police from interrogating a suspect without a lawyer present unless the suspect explicitly waives that right;
  • Give suspects the right to a second medical examination by a doctor of their own choosing;
  • Institute audio and video recording of all interrogations during police custody.
     

[1] Arrêt no. 5700 du 19 octobre 2010 (10-82.306), Cour de cassation, Chambre Criminelle, available at http://www.courdecassation.fr/jurisprudence_2/chambre_criminelle_578/arr... (accessed November 4, 2010).

[2] 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.

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

[4] Arrêt no. 5699 du 19 octobre 2010 (10-82.902),  Cour de cassation, Chambre criminelle ; Arrêt no. 5701 du 19 octobre 2010 (10-85.051),  Cour de cassation, Chambre criminelle, available at http://www.courdecassation.fr/jurisprudence_2/chambre_criminelle_578/arr... (accessed November 4, 2010).

[5] 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.

[6] 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.

[7] 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.

[8] 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).

[9] Police custody reform bill, article 7, line 4.

[10] Police Custody reform bill, article 7, line 2.

[11] Police custody reform bill, article 7, line 6.

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

[13] 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; Magee v. the United Kingdom, no. 28135/95, ECHR 2000-VI, para. 44; Salduz v. Turkey [GC], no. 36391/02, judgment of 27 November 2008, paras. 50-62; Dayanan v. Turkey, no. 7377/03, judgment of 13 October 2009, paras. 30-34; Boz v.  Turkey, no. 2039/04, judgment of 9 February 2010, paras. 33-36; and Adamkiewicz v. Poland, no. 54729/00, judgment of 2 March 2010, paras. 82-92.

[14] European Court of Human Rights, Brusco v. France, no. 1466/07, judgment of 14 October 2010, para. 45

[15] Brusco v. France, para. 54

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

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

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

[19] Human Rights Watch, Preempting Justice: Counterterrorism laws and procedures in France, July 2008, https://www.hrw.org/en/reports/2008/07/01/preempting-justice-o.

[20] UN Committee against Torture, Concluding Observations of the Committee against Torture: France, UN Doc CAT/C/FRA/CO/4-6, May 20, 2010, para. 22.

[21] Ibid.  The Committee made this recommendation also in 2006.

[22] 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.

[23] 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.

[24] Rapport du Comité de réflexion sur la justice pénale, September 1, 2009, http://www.justice.gouv.fr/art_pix/1_sg_rapport_leger2_20090901.pdf, p.19

[25] UN Committee against Torture, Concluding observations, May 20, 2010, para. 23.

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