III. Counterterrorism Laws and Procedures in France
Over the past 30 years France has relied primarily on the c riminal justice system to combat terrorism. In 1981 the government of President François Mitterrand abolished the State Security Court, a special tribunal that had tried all national security cases since 1963. The court, composed of three civilian judges and two military officers, had conducted its proceedings in secret with no right of appeal. The year after it was abolished, the French parliament modified the Code of Criminal Procedure to enshrine the principle that in times of peace, crimes against the fundamental interests of the nation are to be dealt with in the ordinary criminal justice system.10
Although the French preemptive approach is grounded in the ordinary justice system, terrorism investigations and prosecutions are subject to exceptional procedures, and managed by specialized prosecutors and judges. Since the mid-1980s all terrorism cases have been centralized in Paris among specialized prosecutors and investigating judges who work in close cooperation with national intelligence services.
The basic counterterrorism statute, adopted in 1986, fashioned the centralized judicial system for terrorism-related offenses that today defines the French model. Law 86-1020 of September 9, 1986, created a specialized corps of investigating judges and prosecutors based in Paristhe Central Counterterrorism Department of the Prosecution Service, otherwise known as the 14th sectionto handle all terrorism cases. The 1986 law also instituted trials by panels of professional judges for serious terrorism-related felonies in the Court of Assize in Paris, an exception to the rule of trial by jury in these courts.11 The law extended maximum police custody to 96 hours (four days) in terrorism-related cases.12
The centerpiece of the French judicial counterterrorism approach is the broadly defined charge of criminal association in relation to a terrorist undertaking (association de malfaiteurs en relation avec une entreprise terroriste). The charge, introduced by Law 96-647 of July 22, 1996, gives the authorities the ability to take preemptive action well before the commission of a crime.
The vast majority of terrorism suspects are detained and prosecuted on this charge. According to government statistics, 300 of the 358 individuals in prison for terrorism offenses in September 2005both convicted and those awaiting trialhad been charged with association de malfaiteurs in relation to a terrorist undertaking.13
As Christophe Chaboud, the head of the special anti-terrorism unit of the Ministry of Interior stated in mid-October 2005, Our strategy is one of preventive judicial neutralization. The anti-terrorism laws put in place in 1986 and 1996 are our strength. We have created the tools to neutralize operational groups before they pass to action.14
The offense is defined as the participation in any group formed or association established with a view to the preparation, marked by one or more material actions, of any of the acts of terrorism provided for under the previous articles.15 In most cases, this charge is a minor felony offense tried in the Correctional Court, and is punishable by up to 10 years in prison. A 2006 law made the offense a serious felony punishable by up to 20 years in prison when the cr iminal association was formed with the purpose of preparing attacks on life and physical integrity, as well as abduction, unlawful detention, and hijacking of planes, vessels, or any other means of transport.16 The punishment for being the leader of such a criminal association was raised from 20 to 30 years.17
The 2006 law, which was enacted in response to the July 7, 2005 bombings in London, also increased the maximum period of police custody in terrorism cases to six days under certain conditions.18
Four other major pieces of legislation adopted since 2001 further reinforced counterterrorism measures. These laws broadened police powers to conduct vehicle and building inspections, imposed data retention and disclosure obligations on internet and telecommunications services, required disclosure of encryption codes where necessary in relation to a terrorism investigation, shored up security measures at airports and seaports, increased surveillance measures generally, and instituted new measures to fight financing of terrorism.19
The Criminal Code also lists a series of offenses that are considered acts of terrorism where they are committed intentionally in connection with an individual or collective undertaking the purpose of which is seriously to disturb the public order through intimidation or terror.20 In addition, any criminal offense is subject to a higher sentence when committed in connection with a terrorist purpose. For example, an attack on life, subject to a maximum prison term of 30 years, may give rise to life in p rison if perpetrated in connection to a terrorist act.21
Counterterrorism officials and government authorities cite the lack of a terrorist attack in France since the mid-1990s as proof of the systems effectiveness. The key to this success, according to many, has been the willingness and ability to adapt criminal laws and procedures to respond to the particular exigencies of the fight against international terrorism. In this view, it is precisely the flexibility of the French criminal justice system that has eliminated the need to resort to extrajudicial or administrative measures in the fight against terrorism. 22
In an interview with Human Rights Watch, Jean-Louis Bruguière, Frances most famous and controversial counterterrorism judge (now retired), compared the French judicial approach favorably to abuses committed by the United States at the Guantanamo Bay detention facility, and by the United Kingdom, where foreign terrorism suspects were detained indefinitely without charge from 2001 to 2004 until the highest court ruled the measures illegal.23
According to Bruguière,
Flexibility and adaptability may be critical elements in an effective counterterrorism strategy, but they must not stretch the rule of law to breaking point. An appropriate criminal justice approach must be based on fundamental procedural guarantees ensuring the right to a fair trial, which are engaged from the outset of a criminal investigation.
Role of the Investigating Judge in Terrorism Cases
The role and power of the specialized counterterrorism investigating judgesreferred to by one analyst as informed, independent and pitiless adversaries of terrorism in all its formscannot be underestimated.25
There are currently seven investigating judges specialized in terrorism cases.26 Bruguière was the best known among them. He was head of the pool of specialized counterterrorism judges when he stepped down in 2007 after 20 years.27 During his tenure, Bruguière earned a reputation for uncompromising dedication to his work. Known by nicknames such as sheriff and the admiral, Bruguière claimed in 2004 he had arrested over 500 people in the previous decade.28
The significant authority of the investigating judge in the French system is magnified with respect to terrorism cases. The logic is that a security-cleared, specialized, and experienced judge will, on the basis of all relevant information, including sensitive intelligence material, be able to connect the dots: discern the existence of a terrorist network, even where the material acts demonstrating this existence are limited to common crimes (for example forgery of identity documents) and determine the identities of the members of the network.29
Defense lawyers complain, however, that the way in which judicial investigations in terrorism cases are conducted seriously undermines the right of each defendant to an effective defense.30 This right is a cornerstone of the right to a fair trial. The International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) stipulate the minimum guarantees necessary to ensure the right to a fair t rial to all persons accused of a criminal offense. These include timely and confidential access to counsel, and adequate time and facilities to prepare the defense. Another key element is respect for the principle of equality of arms, which requires that the prosecution and the defense have equal opportunity to prepare and present their cases, including the obligation on the prosecution to disclose all material information.31
Almost all defense attorneys we spoke with complained that investigating judges routinely deny their requests for investigative steps to be undertaken in the course of the judicial investigation.
The experience of Sébastien Bono during his defense of Christian Ganczarski is only slightly extreme: only one of his 24 requests for investigative steps was accepted (an inquiry commission to Saudi Arabia).32 Ganczarski is a German national alleged to be a significant al Qaeda figure. He was arrested in France in June 2003 after being expelled from Saudi Arabia in what his lawyer called a disguised extradition. He faces charges before the Paris Court of Assize for involvement in a 2002 suicide attack on a synagogue in Tunisia that left 21 people dead. Among the 23 motions denied was a request by Ganczarskis lawyer for an actual copy, and not just a transcript, of the tape of a conversation on the morning of the synagogue bombing between Ganczarski and Nizar Naouar, the suicide bomber who carried out the attack.
The lawyer for a young man accused of association de malfaiteurs, who asked not to be identified because the case is still in the judicial investigation phase, said all three motions he has filed thus far have been denied. These included two motions for a joint deposition between defendants, and the extradition of an individual from Algeria whose alleged confession is pivotal in the case against his client.
Also denied were requests for the return of a relatively small amount of money confiscated at the time of clients arrest (his client is out of jail under judicial supervision after spending over a year in pretrial detention), as well as for the authorization to give a copy of the case file to his client, who was still in pretrial detention at the time. Without such authorization, defense attorneys are not allowed to give copies of any elements of the case file to their clients; they can only show, read or summarize the documents. The investigating judge denied the request on the grounds that there was a risk of his client using the information to pressure others involved in the case.33 The inability to share the case file with the accused has a negative impact on the lawyers ability to mount an effective defense, according to this attorney, because the case file is so big, there are details that we [lawyers] can miss but the client could consider important.34 The parliamentary commission that conducted an inquiry into the Outreau Affair recommended that all suspects under judicial investigation, including those in pretrial detention, have an unrestricted right to their case files.35 The requests described here are not technically motions for investigative steps.
As noted above, lawyers can appeal against any decisions by an investigative judge to the Investigating Chamber. The president of the Chamber has the authority to reject the appeal in a reasoned judgment or transmit the appeal for examination by the full chamber; this decision cannot be appealed.36 All of the motions discussed above were rejected by the president of the Chamber.
Defense attorneys argue that the length and complexity of judicial investigations in terrorism cases considerably obstruct their ability to mount an effective defense. As discussed in greater detail below, investigations into Islamist terrorism are often protracted, complicated inquiries into alleged networks of like-minded individuals, leading often to voluminous case files tracing the phone calls, travels, meetings, as well as opinions, of a large number of people. According to lawyer Dominique Tricaud, this means case files built on an idea, a movement, and not on the accused. And then the defense becomes impossible.37 Henri de Beauregard, a court-appointed attorney for one of the defendants in a major terrorism trial involving eight defendants, complained at trial that he had been unable to effectively defend his client:
In mid-2007 De Beauregard filed a complaint against France before the European Court of Human Rights for violation of article 6(1)the right to a fair t rialand article 6(3)right to necessary time and facilities to prepare the defense. At this writing the Court has not made a decision on admissibility of the complaint.
While the investigation is ongoing, lawyers may consult the case file at the Palais de Justice (in cramped conditions), or request paper copies at the expense of the state. But lawyers complained that even if they were to obtain these copies, they wouldnt have enough room in their offices for the entire case file in the major terrorism investigations. Lawyers are entitled to receive a copy of the entire file on CD-rom once the investigative phase is completed; because electronic copies allow for conducting keyword searches and cross-referencing information with relative ease, access to an electronic copy at an earlier stage would facilitate proper and timely preparation of the defense.
10 Ibid., art. 702 (as amended by Law No. 82-621 of July 21, 1982). The official English-language translation of the Code of Criminal Procedure is available at www.legifrance.gouv.fr.
11 The Constitutional Court ruled that replacing a popular jury by professional judges in terrorism-related cases was a legitimate means of avoiding pressure and threats. Decision No. 86-213 DC, September 3, 1986.
12 The 96-hour period of police custody is also applicable to drug trafficking and organized crime suspects.
13 The term association de malfaiteurs can be used with respect to numerous crimes. In this report, we use it to refer exclusively to the offense of belonging to a criminal association in relation to a terrorist undertaking. This statistic is from the Ministry of Justice, as reported in Piotr Smolar, Les prisons francaises comptent 358 detenus pour activisme, Le Monde (Paris), September 9, 2005.
14 Jacky Durant and Patricia Tourancheau, La menace terroriste contre la France est elevee, Liberation (Paris), October 18, 2006.
15 Criminal Code (CC), art. 421-2-1.
16 The law stipulates the higher penalty for membership in a group whose purpose is to prepare attacks on persons as listed in article 421-1 (willful attacks on life, willful attacks on the physical integrity of persons, abduction and unlawful detention and also the hijacking of planes, vessels or any other means of transport); attacks with explosives or fire in places and at times where such attacks are likely to cause the death of one or more persons; or the introduction into the atmosphere, the ground, waters, foodstuffs or ingredients of any substance liable to cause the death of one or more persons. Law No. 2006-64 of 23 January 2006 concerning the fight against terrorism and adopting different measures for security and border controls. As of February 2008, no one had yet been charged with association de malfaiteurs as a serious felony offense. See National Assembly, Law Commission Information Report on the implementation of Law No. 2006-64 of 23 January 2006, February 5, 2008.
17 Law No. 2006-64 of January 23, 2006.
19 Law No. 2001-1062 of 15 November 2001 concerning everyday security; Law No. 2003-239 of 18 March 2003 for internal security; Law No. 2004-204 of 9 March 2004 adapting justice to the evolution of criminality; and Law No. 2006-64 of 23 January 2006 concerning the fight against terrorism and adopting different measures for security and border controls.
20 CC, art. 421-1. These acts include attacks on life, physical integrity, abductions, hijackings, and theft and stockpiling of explosives. The article was incorporated into the CC in 1996 and was modified in 1998 and again in 2001.
21 CC, art. 421-3.
22 Antoine Garapon, Is There a French Advantage in the Fight Against Terrorism? ARI.
23 Human Rights Watch, U.K.: Law Lords Rule Indefinite Detention Breaches Human Rights, December 16, 2004, http://hrw.org/english/docs/2004/12/16/uk9890.htm.
24 Human Rights Watch interview with Jean-Louis Bruguière, former investigating judge, Paris, February 26, 2008.
25 Jeremy Shapiro and Bénédicte Suzan, The French Experience of Counter-Terrorism, Survival, vol. 45, no.1, Spring 2003, p. 78.
26 There are eight positions in the division of specialized counterterrorism investigating judges; at the time of writing, however, there were only seven active judges. Human Rights Watch interview with Philippe Maitre, counterterrorism prosecutor, Paris, February 27, 2008. The judges tend to further specialize in different types of terrorism (for example, international or Islamist, nationalist or separatist).
27 In early March 2008, the European Commission designated Bruguière to undertake a review of implementation of a cooperation agreement between the European Union and the United States in the fight against financing of terrorism. EU Review of the United States Terrorist Finance Tracking Programme, European Commission press release, March 7, 2008, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/400&format=HTML&aged=o&language=en&guilanguage=en (accessed March 12, 2008).
28 Craig Whitlock, French Push Limits in Fight on Terrorism, Washington Post, November 2, 2004.
29 Shapiro and Suzan, The French experience of counterterrorism.
30 Human Rights Watch interviews with Sébastien Bono, Paris, June 21, 2007, and February 28, 2007; Henri De Beauregard, Paris, July 6, 2007; Fatouma Metmati, December 13, 2007; Bernard Dartevelle, Paris, June 21, 2007; Nicolas Salomon, Paris, July 5, 2007; Sophie Sarre, Paris, July 6, 2007; Antoine Comte, Paris, May 10, 2007; Dominique Tricaud, Paris, December 10, 2007.
31 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by France on November 4, 1980, art. 14; European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 213 U.N.T.S. 222, entered into force September 3, 1953, as amended by Protocols Nos 3, 5, 8, and 11 which entered into force on September 21, 1970, December 20, 1971, January 1, 1990, and November 1, 1998, respectively, art. 6. See also European Court of Human Rights judgments: Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, p. 19, § 33; Ankerl v. Switzerland, judgment of 23 October 1996, Reports 1996-V, pp. 1567-68, § 38; Ruiz Mateos v. Spain, judgment of 24 June 1993, Series A no. 262, p. 25, § 63; Nideröst-Huber v. Switzerland, judgment of 18 February 1997, Reports 1997-I, p. 108, § 24; and Beer v. Austria, no. 30428/96, § 17, 6.2.2001.
32 Human Rights Watch interview with Sébastien Bono, defense attorney, Paris, February 28, 2008.
33 This procedure is laid out in article 114 of the Code of Criminal Procedure.
34 Human Rights Watch interview, defense attorney who requested anonymity, Paris, February 28, 2008.
35 National Assembly, Rapport No. 3125, June 6, 2006, p. 397.
36 CCP, art. 186-1.
37 Human Rights Watch interview with Dominique Tricaud, defense attorney, Paris, December 10, 2007.
38 Extraits dun proces antiterroriste des presumes membres de la cellule francaise du GICM (Groupe islamique combattant marocain) et presumes soutiens financier et logistique aux attentats de Casablanca, http://paris.indymedia.org/IMG/pdf/doc-46372.pdf (accessed January 28, 2008). Translation by Human Rights Watch.