I. Executive Summary

Since the mid-1980s, when it suffered a wave of terrorist attacks, France has refined a preemptive criminal justice approach to countering terrorism, which many of its officials regard as a model worthy of emulation elsewhere. France’s approach is characterized by the aggressive prosecution of alleged terrorist networks operating on French territory. It is founded on close cooperation between specialized prosecutors and investigating judges and the police and intelligence services, coupled with limitations on the procedural guarantees that apply to ordinary crimes.

Central to this preemptive approach is the broadly defined offense of “criminal association in relation to a terrorist undertaking” (association de malfaiteurs en relation avec une entreprise terroriste, hereafter “association de malfaiteurs”). Established as a separate offense in 1996, it allows the authorities to intervene with the aim of preventing terrorism well before the commission of a crime. No specific terrorist act need be planned, much less executed, to give rise to the offense. Intended to criminalize all preparatory acts short of direct complicity in a terrorist plot, an association de malfaiteurs charge may be leveled for providing any kind of logistical or financial support to, or associating in a sustained fashion with, groups allegedly formed with the ultimate goal of engaging in terrorist activity.

French counterterrorism officials argue that the flexibility of the French criminal justice system allows the authorities to adjust legal responses to address effectively the threat of international terrorism. Even some analysts who recognize that this has led to a trade-off in rights contend that the government’s ability and willingness to adapt the system has averted the need to resort to extrajudicial or administrative measures in the fight against terrorism, such as those pursued by the United States and United Kingdom governments, which they argue have far worse consequences for rights protection.

Human Rights Watch is convinced that effective use of the criminal justice system is the best way to counter terrorism. But too much flexibility in the system will stretch the rule of law to the breaking point. 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 measures taken to counter terrorism are compatible with coexisting human rights protections, including the rights of those deemed to pose a threat.

In practice, French counterterrorism laws and procedures undermine the right of those facing charges of terrorism to a fair trial. The broad definition and expansive interpretation of association de malfaiteurs translate into a low standard of proof for decisions to arrest suspects or to place them under investigation by a judge. Indeed, casting a wide net to ensnare large numbers of people who might have some connection with an alleged terrorist network has been one of the characteristics of investigations into association de malfaiteurs.

Once arrested, terrorism suspects may be held in police custody for four days, and in certain circumstances up to six days, before being brought before a judge to be placed under judicial investigation or released without charge.

Suspects are allowed to see a lawyer for the first time only after three days in custody (four days in some cases), and then only for 30 minutes. The lawyer does not have access to the case file, or information about the exact charges against his or her client, leaving little scope for providing legal advice. Suspects may be subjected to oppressive questioning, at any time of the day or night, without a lawyer present. Police are under no obligation to inform suspects of their right to remain silent.

Testimonies from people held in police custody on suspicion of involvement in terrorism suggest that sleep deprivation, disorientation, constant, repetitive questioning, and psychological pressure during police custody are common. There are credible allegations of physical abuse of terrorism suspects in French police custody. Limited access to a lawyer during police custody makes suspects vulnerable to ill-treatment in detention.

Once the suspect is brought before a judge, minimal evidence of relation to an alleged terrorist network is usually sufficient to remand a suspect into pretrial detention for months or in some cases years. A reform introduced in 2001 giving responsibility for decisions about custody and provisional release to a separate “liberty and custody judge” has made little difference to the effective presumption in favor of detention in terrorism cases, because these judges are reluctant or lack sufficient information and time to go against the wishes of the investigating judge or prosecutor.

Intelligence material, including information coming from third countries, is often at the heart of association de malfaiteurs investigations. Indeed, most if not all investigations are launched on the basis of intelligence information. The appropriate use of intelligence material in judicial proceedings can play an important role in the effective prosecution of terrorism offenses. But the close links between specialist investigative judges and the intelligence services in terrorism cases undermine the skepticism and consideration for the rights of the accused with which the judges should approach any potential evidence or source of information. The right of defendants to a fair trial is seriously undermined when they cannot effectively probe or question the source of the evidence against them.

The use of evidence obtained from third countries where torture and ill-treatment are routine raises particular concerns, including about the nature of cooperation between intelligence services in France and those countries. Some defendants in France who credibly allege they were tortured in third countries into confessing have successfully had the confessions excluded as evidence.

But the courts appear to have allowed as evidence in some cases statements allegedly made under torture by third persons. Trips by investigative judges to third countries with poor records on torture to verify material for use in French prosecutions raise questions about the willingness of French judges to turn a blind eye to allegations of abuse.

The overly broad formulation of the association de malfaiteurs offense has led, in our view, to convictions based on weak or circumstantial evidence. As long as there is evidence that a number of individuals know each other, are in regular contact, and share religious and political convictions, there is considerable room for classifying a wide range of acts, by even the most peripheral character, as the “material actions” demonstrating participation in a terrorist undertaking.

Excesses in the name of preventing terrorism, even if the overall strategy is based on use of the criminal justice system, are likely to be counterproductive insofar as they alienate entire communities. Injustice feeds resentment and erodes public trust in law enforcement and security forces among the very communities whose cooperation is critical in the fight against terrorism. Over the long term, these abuses may actually feed into the grievances exploited by extremists.

As the “cradle of human rights,” France has been at the forefront of efforts to advance respect for international human rights law, as well as expand its boundaries, worldwide. It has also become an authoritative voice on counterterrorism issues, both within the European Union and beyond. France can best demonstrate leadership in both fields by ensuring that its criminal justice system holds to the highest standards of procedural guarantees.

Key Recommendations

Human Rights Watch urges the French government to take the following key steps:

  • Refine the definition of criminal association in relation to a terrorist undertaking in the Criminal Code to provide a non-exhaustive list of the types of behavior likely to attract criminal sanction, and require the demonstration, beyond a reasonable doubt, of intent to participate in a general plan to commit terrorist acts;

  • Improve safeguards in police custody, including access to a lawyer from the outset of detention and presence of counsel during all interrogations;

  • Impose an obligation on investigating judges to order official inquiries into any allegation of mistreatment in police custody;

  • Strengthen the role and independence of liberty and custody judges by ensuring continuous training and continuity in their case-load;

  • Ensure that as a matter of law and practice any evidence shown to have been obtained under torture and ill-treatment, irrespective of where and from whom it was obtained, is unequivocally inadmissible in any criminal proceedings, including the investigative phase (except as evidence in proceedings to establish that torture or other prohibited ill-treatment occurred).