Dear Mr. Zocchetto,
We are writing on behalf of Human Rights Watch to share with you our serious concerns about a number of provisions in the bill to reform police custody currently under examination in the Senate Law Committee. We previously submitted a briefing paper to the National Assembly Law Committee, in November 2010, detailing these concerns. The briefing paper is annexed to this letter.
Human Rights Watch welcomes reforms to police custody to ensure effective exercise of the right to defense at what is a crucial stage in criminal proceedings. In particular, we welcome the introduction of important new safeguards, such as the notification of the right to remain silent and the general principle that all suspects should have access to a lawyer from the outset of custody, and that lawyers should be present during interrogations.
We are nonetheless concerned that the bill adopted by the National Assembly on January 25, 2011, lacks the far-reaching reforms necessary to bring French criminal procedure in line with international human rights obligations.
We are particularly concerned that the bill imposes unjustifiable constraints on the role of lawyers during police custody, including by failing to rectify the existing 30-minute limit on lawyer-client conversations, imposing restrictions on the participation of lawyers during interrogations, as well containing overly broad grounds that would permit authorities to delay access to a lawyer and to limit the presence of the lawyer during interrogations under certain circumstances.
The bill carves out exceptions from the general principle of access to the assistance of a lawyer for certain crimes and under certain circumstances. Under article 12 of the bill, 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." This is the amount of time such suspects are denied access to a lawyer under existing law. The prosecutor would make the initial decision to deny access for 24 hours, and the liberty and custody judge could authorize two more periods of 24 hours each. We are very concerned that this provision will do little to improve access to a lawyer for those accused of serious crimes. In practice, those accused of such crimes are likely to have their right to a lawyer systematically delayed.
Similarly, article 7 gives the prosecutor the power to delay the presence of a lawyer during interrogations of suspects of any kind of offense for up to twelve hours in order to protect the collection or preservation of evidence or to prevent imminent harm. Where the alleged offense is punishable by five or more years in prison, the prosecutor may apply to the liberty and custody judge to defer the presence of a lawyer for a further twelve hours.
These restrictions on access to a lawyer would undermine the right to an effective defense, 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 an important safeguard against torture and ill-treatment.
We urge you in your role as rapporteur for the bill to propose amendments aimed at strengthening safeguards for all persons detained in police custody.
In our assessment, the bill should be amended to ensure the rights of all suspects in police custody 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.
We would be happy to meet with you at your convenience to discuss our concerns and recommendations.
We thank you for your attention to these important matters.
Europe and Central Asia Division