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France: Police Custody Reform Falls Short

Parliament Should Ensure Fair Trial Rights for All Suspects

(Paris) - The National Assembly should amend a bill to reform police custody procedures in France to improve safeguards and to ensure that they apply to all detained suspects, Human Rights Watch said today. The Assembly is scheduled to begin debate on the government-sponsored bill on January 18, 2011.

"If France is serious about protecting suspects, its police custody procedures need a major overhaul," said Judith Sunderland, senior Western Europe researcher at Human Rights Watch. "The proposals in the current bill simply don't go far enough."

The bill introduces some significant new safeguards, such as notification of the right to remain silent and the presence of a lawyer during interrogations, Human Rights Watch said. But the bill leaves in place undue limits on the role of lawyers while suspects are in police detention, an important period for preparing a defense.  

The bill establishes the general principle that all suspects in police custody have the right to a lawyer from the outset and to the assistance of a lawyer during interrogations. Having a lawyer present during questioning insures the integrity of criminal proceedings and supports a suspect's right to an effective defense, Human Rights Watch said. But the bill allows justice officials to delay access to a lawyer if the suspect is accused of some serious crimes.

Under the proposals, suspects in terrorism investigations as well as some organized crime suspects could be denied access to a lawyer for up to 72 hours "for the collection or preservation of evidence or to prevent an attack on individuals." The prosecutor would make the initial decision to deny access for 24 hours. Two more periods of 24 hours could be imposed if authorized by a judge.

Existing law, which systematically denies these suspects access to a lawyer for the first 72 hours in custody, has prompted criticism from the United Nations Human Rights Committee and the French National Bar Association, among others.

The original government bill had left the exceptions for organized crime and terrorism cases in place. The government amended the bill following a series of Court of Cassation rulings in October 2010 that restrictions on the right to a lawyer from the outset of detention should not be based solely on the nature of the alleged crime, but on "imperative reasons" linked to the particular circumstances of the investigation.

"This change will do little to improve access to a lawyer for those accused of serious crimes," Sunderland said. "In practice, those accused of such crimes are likely to have their right to a lawyer systematically delayed."

The bill maintains the problematic existing 30-minute limit on private client-lawyer consultations during police custody. This limit would apply regardless of when the first meeting takes place and would apply throughout the duration of police custody. Imposing such a time limit would undermine a lawyer's ability to provide advice at a critical stage and would undermine the right to an effective defense, Human Rights Watch said.

The bill contains an important reform that would allow suspects to have a lawyer present during police interrogations and would postpone questioning for up to two hours to allow a lawyer time to arrive, Human Rights Watch said. But it also would allow the public prosecutor to order interrogations before the two hours have elapsed, and to delay the presence of a lawyer for up to twelve hours while interrogation proceeds to protect the collection or preservation of evidence or to prevent imminent harm.

The prosecutor would also be able to apply to a judge to deny access to a lawyer for up to 24 hours when the alleged crime is punishable by five or more years in prison. Suspects could be questioned during this period.

Both restrictions would undermine the right to an effective defense, Human Rights Watch said.

The European Court of Human Rights has concluded in recent cases against France that its public prosecutor's office is not sufficiently independent from the executive branch to constitute a competent legal authority that should have decision-making power over deprivation of liberty. For this reason, the National Assembly Law Commission modified the government's original proposal to ensure that special "liberty and custody" judges will oversee decisions about placing suspects in police detention and keeping them there.

Under the proposed legislation, even when a lawyer is allowed to be present, there would be limited capacity to assist their client. The lawyer would only be able to intervene at the end of an interrogation session.

The government's original proposal would have precluded the lawyer from participating in any way during the interrogation. While the current proposal is an improvement, it still means that lawyers would mostly be silent witnesses, unable to intervene on their client's behalf during police questioning, Human Rights Watch said.

The right to an effective defense is a cornerstone of fair trial standards under international human rights law. The assistance of a lawyer, and the ability of the lawyer to engage in the array of activities necessary for preparing the defense, are considered fundamental elements of the right to an effective defense. For this reason the European Court of Human Rights has repeatedly affirmed the importance of legal assistance during police custody, including the right to a lawyer from the outset of detention and the right to the lawyer's assistance during questioning.

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.

Human Rights Watch urged deputies in the National Assembly to amend the bill to ensure that all suspects in custody, including terrorism and organized crime suspects, have the right to:

  • Have access to a lawyer from the outset of detention without any possibility of delay or deferral;
  • Be interrogated only in the presence of a lawyer; and
  • Confer in private with a lawyer without time limits.

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