publications

Detailed Recommendations

To the Government of France

The president, the minister of justice, and other senior government officials should publicly and unequivocally affirm that torture and cruel, inhuman, or degrading treatment is unacceptable, both in France and elsewhere, and that information obtained under torture and prohibited ill-treatment must not be used at any stage of judicial investigations and proceedings in France.

To the Ministry of Justice

Association de Malfaiteurs

Introduce necessary amendments to the Criminal Code to ensure that the offense of criminal association in relation to a terrorist undertaking meets the requirements of legal precision under international human rights law. In particular, the reform should aim to:

  • Provide a non-exhaustive list of types of behavior likely to attract criminal sanction; and
  • Clarify that intent to participate in a criminal association in relation to a terrorist undertaking must be fully demonstrated beyond a reasonable doubt.

The Right to a Fair Trial

Commence legislative reforms to the Code of Criminal Procedure and adopt policy guidelines to ensure the full range of fair trial standards under the European Convention on Human Rights. In particular, these reforms should:

Prevent unjustified arrests

  • Prohibit the practice of arresting, except where there exists probable cause, individuals other than those already identified as suspects in a judicial investigation;
  • Prohibit the practice of arresting the partners of terrorism suspects except where they are suspected of criminal activities.

Guarantee the right to an effective defense

  • In police custody. All detainees in police custody should have the right to:

    ○ See a lawyer from the outset of detention and throughout the period of detention;

    ○ Confer privately with a lawyer for any amount of time as necessary;

    ○ Be questioned by the police only in the presence of a lawyer;

    ○ Be notified of their right to remain silent.

  • During the judicial investigation phase:

    ○ Abolish centralization of all terrorism cases in Paris and increase the pool of prosecutors and investigating judges with experience of handling terrorism cases in tribunals around the country. Ensure that investigating judges working on terrorism cases rule in colleges of three;

    ○ Ensure that the Investigative Chamber exercise effective supervision over the work of the investigating judge. All appeals against decisions by the investigating judge refusing to take an investigative step should be heard by the full Investigative Chamber. The president of the Chamber should not have the authority to filter the demands and reject them as manifestly unfounded;

    ○ Ensure that electronic copies of the case file are available to defense attorneys during the investigation phase. These copies should be updated periodically;

    ○ Ensure that permission to share elements of the case file with clients is denied only in the most exceptional cases.

  • Prevent unjustified lengthy pretrial detention

    • Strengthen the role and independence of the liberty and custody judges (JLDs) by:
      • Adopting guidelines to prohibit and sanction pressure from prosecutors and investigating judges on liberty and custody judges;
      • Ensuring that decisions with respect to remand and renewal of pretrial detention are fully motivated, taking into account the particulars of the individual and the criteria in French law;
      • Ensuring that JLDs are assigned permanently the dossier for an individual defendant so that they review every decision with respect to renewal of detention and appeals for provisional liberty;
      • Ensuring continuing training of JLDs to guarantee they are fully aware of their responsibilities and prerogatives, including the obligation to study the merits of the case and their ability to delay the first hearing to better study the case file;
      • Revisiting proposals to separate clearly the corps of prosecutors and judges, including JLDs, by instituting a distinct legal training.
    • Require the presence of a lawyer in the hearing for renewal of detention. Such hearings should not proceed without the benefit of counsel except in cases where the accused has chosen to represent him or herself.

    Torture and Ill-treatment

    The Ministry of Justice should take the lead in proposing legislative reforms to bring France fully into line with its international obligations under the Convention Against Torture:

    Guarantee that torture evidence is not introduced into legal proceedings

    • Establish guidelines for investigating judges for assessing whether intelligence material has been obtained under torture or prohibited ill-treatment. Investigating judges must be satisfied that information introduced in any way and at any stage into legal proceedings was obtained lawfully;
    • Examine the possibility of creating additional oversight mechanisms to ensure these human rights compatibility assessments are undertaken, including a positive obligation on the Investigating Chamber to independently assess information obtained from third countries;
    • Ensure that defense attorneys are protected from disciplinary actions for raising concerns about the use of torture evidence in legal proceedings.

    Ensure adequate safeguards against ill-treatment in police custody

    The Code of Criminal Procedure should be reformed to:

    • Provide for the right of every detainee to request an examination by a doctor of his or her own choosing, in addition to that of the court-appointed doctor and in the latter’s presence if necessary, in accordance with recommendations from the European Committee for the Prevention of Torture (CPT);
    • Ensure that each detainee is examined by a forensic doctor immediately upon arrival. The detainee should have the right at this stage to request an examination also by a doctor of his or her own choosing;
    • Extend the obligation to video- and audiorecord police interrogations and hearings with investigating judges to all cases, including terrorism;
    • Impose an obligation on investigating judges to order official inquiries into any allegation of mistreatment in police custody.

    To the future Inspector General of Places of Deprivation of Liberty (Controleur General des lieux de privation de liberte)

  • Prioritize spontaneous, unannounced visits to places of police detention, including those where terrorism suspects are being held, to inspect conditions and speak with detainees in private about treatment;

  • Publicize any instance of denial of access on the basis of security concerns with a view to limiting these instances;

  • Advocate for the legislative and policy reforms necessary to improve safeguards against prohibited ill-treatment in police custody.

  • To the Parliamentary Delegation on Intelligence

    • Examine the information-sharing arrangements between French and foreign national security agencies to assess whether appropriate checks exist on accepting information from countries with questionable human rights records.

    To the European Union

    • Member states should review their legislation in light of the concerns raised in this report to ensure that, where relevant, their definition, scope, and implementation of the criminal charge of association in relation to a terrorist undertaking comply with international fair trial standards.
    • The European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) should consider undertaking a report analyzing member states’ legislation and practices in light of the concerns raised in this report, in particular with respect to:
      • the definition, scope, and implementation of the criminal offense of association to commit terrorist acts;
      • appropriate safeguards in cooperation among national security agencies to ensure that information obtained under torture or ill-treatment or conditions that are otherwise incompatible with international human rights standards is not used as evidence in criminal proceedings, including the investigative phase.

    To the Council of Europe

    • The Commissioner for Human Rights should make an assessment (in the form of a “viewpoint” or otherwise) on the appropriate definition, scope, and implementation of the criminal charge of association in relation to a terrorist undertaking.
    • The Commissioner should raise with the French government the concerns detailed in this report, including the definition, scope, and implementation of the criminal charge of association in relation to a terrorist undertaking, insufficient safeguards during police custody, and the use of information in criminal proceedings obtained under torture or ill-treatment or conditions that are otherwise incompatible with France’s human rights obligations.
    • The Committee for the Prevention of Torture should, on its next visit to France, inquire about steps taken to ensure that information obtained under torture or ill-treatment is never admissible in criminal proceedings, including the investigative phase (except as evidence in proceedings to establish that torture or other prohibited ill-treatment occurred).
    • The Parliamentary Assembly’s Legal Affairs and Human Rights Committee should consider undertaking an analysis of legislation and practices throughout the Council of Europe region in light of the concerns raised in this report, in particular with respect to:
      • the definition, scope, and implementation of the criminal offense of association to commit terrorist acts;
      • appropriate safeguards in cooperation among national security agencies to ensure that information obtained under torture or ill-treatment or conditions that are otherwise incompatible with international human rights standards is not used in criminal proceedings.

    To the United Nations

    • The special rapporteurs on torture and on human rights and counte ring terrorism should conduct country visits to France to investigate the compatibility of France’s counterterrorism measures with international human rights law, focusing in particular on allegations of abuse in police custody, the institutional and legislative factors that contribute to these p ractices, and the use of torture evidence in legal proceedings.
    • The Committee Against Torture should develop an authoritative general comment on article 15 of the Convention against Torture prohibiting the use in legal proceedings of statements made under torture.
    • The Human Rights Committee should use the opportunity of its upcoming review of France (scheduled to take place in July 2008) to raise concern about the policies and practices documented in this report, and formulate specific recommendations to French authorities.