Preempting Justice

CounterterrorismLaws and Procedures in France

I. Executive Summary

Since the mid-1980s, when it suffered a wave of terrorist attacks, France has refined a preemptive criminal justice approach to counteringterrorism, which many of itsofficials regard as a model worthy of emulation elsewhere. France's approach is characterizedby the aggressive prosecution of alleged terroristnetworks operating on French territory.It is founded on close cooperation between specialized prosecutors andinvestigating judges and the police and intelligence services,coupled with limitations on theprocedural guarantees that apply to ordinary crimes.

Central to this preemptive approach is the broadly definedoffense of "criminal association inrelation to a terrorist undertaking"(association de malfaiteurs en relationavec 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 terroristact need be planned, much less executed, to give riseto the offense. Intended to criminalizeall preparatory acts short of direct complicity in a terrorist plot, an association de malfaiteurs charge maybe leveled for providing any kind of logistical or financial support to, orassociating in a sustained fashion with, groups allegedly formed with theultimate goal of engaging in terroristactivity.

French counterterrorism officials argue that the flexibility of theFrench criminal justice systemallows the authorities to adjustlegal responses to address effectively the threat of international terrorism. Even some analysts who recognize that this hasled to a trade-off in rights contendthat the government's ability and willingness to adapt the system has avertedthe need to resort to extrajudicial or administrativemeasures 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 rightsprotection.

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 thebreaking point. France'sduty to protect its population from acts of terrorismis matched by its obligations under European and international human rights law to ensure that measures taken to counter terrorismare compatible with coexisting human rightsprotections, 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 malfaiteurstranslate into a low standard of proof for decisions to arrest suspects or toplace them under investigation by a judge. Indeed, casting a wide net toensnare large numbers of people who might have some connection with an allegedterrorist network has been one ofthe characteristicsof investigations into association de malfaiteurs.

Once arrested, terrorismsuspects may be held in police custody for four days, and in certaincircumstances up to six days, before being brought before a judge to be placedunder judicial investigation or released without charge.

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

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

Once the suspect is brought before a judge, minimal evidenceof relation to an alleged terroristnetwork is usually sufficient to remand a suspect into pretrial detention for months or in some cases years. Areform introduced in 2001 giving responsibility for decisions about custody andprovisional release to a separate "liberty and custody judge" has made littledifference to the effective presumption in favor of detention in terrorism cases, because these judges are reluctant orlack sufficient information and time to go against the wishes of theinvestigating judge or prosecutor.

Intelligence material,including information coming fromthird countries, is often at theheart of association de malfaiteurs investigations. Indeed, most if not allinvestigations are launched on the basis of intelligence information. Theappropriate use of intelligence material in judicial proceedings can play an importantrole in the effective prosecution of terrorismoffenses. But the close links between specialist investigative judges and theintelligence services in terrorism cases undermine the skepticism andconsideration for the rights of theaccused with which the judges should approach any potential evidence or sourceof information. The right ofdefendants to a fair trial is seriously undermined when they cannot effectivelyprobe or question the source of the evidence against them.

The use of evidence obtained from third countries where torture and ill-treatment are routineraises particular concerns, includingabout the nature of cooperation between intelligence servicesin Franceand those countries. Some defendantsin Francewho credibly allege they were tortured in third countriesinto confessing have successfully had the confessions excludedas evidence.

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

The overly broad formulation of the association demalfaiteurs offense has led, in our view, to convictionsbased on weak or circumstantial evidence. As long as there is evidence that anumber of individuals know each other, are in regular contact, and sharereligious and political convictions,there is considerable room for classifying a wide range of acts, by even themost peripheral character, as the "materialactions" demonstrating participation in a terroristundertaking.

Excesses in the name of preventing terrorism, even if the overall strategy is based on useof the criminal justice system, arelikely to be counterproductiveinsofar as they alienate entire communities. Injustice feeds resentment anderodes public trust in law enforcement and securityforces among the very communities whose cooperation is criticalin the fight against terrorism. Overthe long term, these abuses may actually feed into the grievancesexploited by extremists.

As the "cradle of human rights,"Francehas been at the forefront of efforts to advance respect for international humanrights law, as well as expand itsboundaries, worldwide. It has alsobecome an authoritative voice on counterterrorismissues, both within the European Union and beyond. France can best demonstrateleadership in both fields by ensuringthat its criminal justice systemholds to the highest standards of procedural guarantees.

Key Recommendations

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

·Refine the definition of criminalassociation in relation to a terroristundertaking in the Criminal Code toprovide a non-exhaustive list of the types of behavior likely to attract criminalsanction, and require the demonstration, beyond a reasonable doubt, of intentto participate in a general plan to commit terroristacts;

·Improve safeguards in police custody, including access to a lawyer from the outset ofdetention and presence of counsel duringall interrogations;

·Impose an obligation on investigating judges toorder official inquiries into anyallegation of mistreatment in police custody;

·Strengthen the role and independence of libertyand custody judges by ensuringcontinuous training and continuity in their case-load;

·Ensure that as a matter of law and practice any evidence shown to have been obtainedunder torture and ill-treatment, irrespective of where and from whom it wasobtained, is unequivocally inadmissible in any criminalproceedings, including theinvestigative phase (except as evidence in proceedings to establish thattorture or other prohibited ill-treatment occurred).

II. Background

The French counterterrorism model has developed over decades of experiencesof domestic, binational, and transnational terrorism.Like other European countries, France has a history of internal violence andterrorist acts by extreme left-wing groups (for example, Action Directe) andregional separatist groups advocating independence or greater autonomy in theBasque country, Brittany,and Corsica.[1]

The brutal eight-year war that led to Algeria'sindependence from France in1962 was distinguished by extraordinary savagery, includingwidespread violence against civilians and terroristbombings in Algeria, as well aswidespread torture by French forces. It was in the mid-1980s, however, that Franceexperienced a new form of "de-territorialized"terrorism.[2]Over a dozen attacks in Paris in 1986 on departmentstores, trains, subways, and public buildings claimed 11 lives and injured over220 people. A previously unknown group called the Committee for Solidarity with Near Eastern Political Prisoners took responsibility for the strikes. In 1995 another wave of attacks between Julyand September-including a bomb at the Saint Michel subway station inParis-killed 10 and injured over 150people. French authorities attributed the attacks to the Algerian Armed Islamic Groups (Groupes IslamiquesArmees, GIA).

In response to the threat of international terrorism, France adopted a preemptiveapproach characterized by an emphasis on intelligence-gathering; aggressive prosecution to dismantle terrorist networks in formation; and removals of foreignterrorism suspects and those accusedof fomenting radicalization and recruitment to terrorism.[3]Indeed, by the time the fight against Islamist terrorismhad become an international priority following the September11, 2001 attacks in the United States,France already had in placeperhaps the most developed counterterrorism machinery in Europe.

France isone of only a few Western nations that have prosecuted its citizens or residentsformerly held in US military detention at GuantanamoBay.Seven French citizens were repatriatedto France in 2004 and 2005,after spending from two to three years in US military custody. While one wasreleased immediately, six werecharged with criminal association inrelation to a terrorist undertakingfor "integrating terroriststructures" in Afghanistan. These menspent between one and one-and-a-half years awaiting trialin France.In December 2007 the 16thChamber of the Paris Correctional Courtconvicted five of the men andsentenced them each to one year in prison.All free at the time of the verdict, they remained at liberty due to timealready served in pretrialdetention. The sixth man was acquitted.

French Criminal Justice System

The criminal justice system in France is based on the inquisitorial approach, in which the Office of the PublicProsecutor opens a judicial investigation of a criminaloffense but can ask an investigating judge (juged'instruction) to oversee the investigation with the help of policeassigned to him or her for that purpose. The investigating judge is supposed tobe an impartial arbiter who seeks to establish the truth, and is entrusted withuncovering both incriminating and exculpatory evidence. He or she canorder arrests and wire taps, issue warrants and orders to appear as a witnessor produce documents instead, and require the police to conduct any lawfulinspection. Prosecutors, defendants, and any civil parties to a criminal case may ask the investigating judge to orderparticular inquiries, which thejudge may authorize or deny.[4] These decisions may be appealed to thehigher Investigative Chamber (Chambred'Instruction).

In theory, the investigatingjudge is an impartial arbiter who searches for all relevant evidence, including information that could help the defense.[5] In practice,investigating judges are often accused of working more to build a solid caseagainst the accused than trying to seek "the truth."

There are alsoconcerns that there are insufficient checks on their power, to the detriment of the rightsof the accused. In 2006 a special parliamentary committee investigating theso-called "Outreau Affair," which saw 13 people falsely accused of pedophilia,went so far as to consider the suggestion that France should abandon theinquisitorial procedure in favor ofthe adversarial system used incommon law jurisdictions such as theUnited Kingdom and the United States.[6] The committee recommended thatinvestigating judges work on cases in "colleges" of three to avoid miscarriages of justice. A March 2007 law implemented thisrecommendation.[7]

Inordinary criminal cases in France,police may arrest and hold suspects for up to 24 hours, with the possibility ofone 24-hour extension, before either releasing them or bringingthem before the investigating judge (premierecomparution). Detainees have the rightto see a lawyer at the outset of detention. The rightto see a lawyer while in police custody was instituted only in 1993. Longer periods of police custody with delayed and limited access to a lawyer are permitted for a numberof serious offenses, including drug-trafficking, organized crime, and terrorism(for the latter, see Chapter V, Police Custody in TerrorismCases).

Whena suspect is brought before an investigating judge, the judge can either orderthe person released without charge or place him or her under formalinvestigation (known as judicial examination,mettre en examen) if there is "strong and concordant evidencemaking it probable that [the suspect] may have participated, as perpetrator oraccomplice, in the commission of the offenses he is investigating."[8] The judge may then recommend to theprosecutor that the detainee be remanded into pretrialdetention (detention provisoire).

Aseparate judge, known as the liberty and custody judge (juge des libertes et de la detention), makes the decision. Theinvestigating judge prepares the committal proceedings, containing the state'scase against the accused, and then transfers it to the prosecutor who willrepresent the state's interests in the case before the appropriate trialchamber.

Franceoperates a system of "free proof" in which an offense "may be proved by anymode of evidence."[9] The only two restrictionsare that the evidence must be obtained in a legal fashion and subject to debateat an adversarial hearing.

Minorfelonies (delits)-punishable by up to 10 years in prison-are triedby three-judge panels in Correctional Court (Tribunal Correctionnel). Seriousfelonies (crimes)are tried by a nine-member jury and three judges in the Court of Assize (Cour d'Assise). Rulings by the Correctional Courtmay be appealed to the regional Court of appeal (Cour d'Appel), and then to the Court of Cassation (Cour de Cassation), the highest judicialbody. Rulings by the Court of Assize may be appealed to another chamber of theCourt of Assize, with a 12-memberjury and three judges, and then to the Court of Cassation. The Court ofCassation reviews points of law only.

III. Counterterrorism Laws and Procedures in France

The Judicial Preemptive Approach

Over the past 30 years France has relied primarilyon the criminal justice system tocombat terrorism. In 1981 thegovernment of President François Mitterrand abolished the State Security Court,a special tribunal that had tried all national securitycases since 1963. The court, composed of three civilian judges and two militaryofficers, had conducted itsproceedings in secret with no right of appeal. The year after it was abolished,the French parliament modified the Code of CriminalProcedure to enshrine the principle that in times of peace, crimes against the "fundamental interests of thenation" are to be dealt with in the ordinary criminaljustice system.[10]

Although the Frenchpreemptive approach is grounded in the ordinary justice system, terrorism investigations and prosecutions are subject toexceptional procedures, and managed by specialized prosecutors and judges.Since the mid-1980s all terrorismcases have been centralized in Paris among specialized prosecutorsand investigating judges who work in close cooperation with nationalintelligence services.

The basic counterterrorism statute, adopted in 1986, fashioned thecentralized judicial system for terrorism-relatedoffenses that today defines the French model. Law 86-1020 of September 9, 1986, created a specialized corps ofinvestigating judges and prosecutors based in Paris-theCentral Counterterrorism Departmentof the Prosecution Service,otherwise known as the "14th section"-tohandle all terrorism cases. The 1986law also instituted trials by panelsof professional judges for seriousterrorism-related felonies in theCourt of Assize in Paris, an exception to therule of trial by jury in thesecourts.[11]The law extended maximum police custody to 96 hours (four days) in terrorism-related cases.[12]

The centerpiece of the Frenchjudicial 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 wellbefore the commission of a crime. 

The vast majority of terrorismsuspects are detained and prosecuted on this charge. According to governmentstatistics, 300 of the 358 individuals in prisonfor terrorism offenses in September 2005-both convictedand those awaiting trial-had beencharged with association de malfaiteurs in relation to a terrorist undertaking.[13]

As ChristopheChaboud, the head of the special anti-terrorismunit of the Ministry of Interior stated in mid-October 2005, "Our strategy isone of preventive judicial neutralization. The anti-terrorismlaws … put in place in 1986 and 1996 are our strength. We have created thetools to neutralize operational groups before they pass to action."[14]

The offense is defined as "theparticipation in any group formed or association established with a view to thepreparation, marked by one or more materialactions, of any of the acts of terrorismprovided for under the previous articles."[15] Inmost cases, this charge is a minor felony offense triedin the Correctional Court,and is punishable by up to 10 yearsin prison. A 2006 law made theoffense a serious felony punishable by up to 20 years in prison when the criminalassociation was formed with the purpose of preparingattacks on life and physical integrity,as well as abduction, unlawful detention, and hijacking of planes, vessels, orany other means of transport.[16]The punishment for being the leaderof such a criminal association wasraised from 20 to 30 years.[17]

The2006 law, which was enacted in response to the July 7, 2005 bombings in London, also increasedthe maximum period of police custodyin terrorism cases to six days undercertain conditions.[18]

Four other major pieces of legislation adopted since 2001further reinforced counterterrorism measures. These laws broadened police powers toconduct vehicle and building inspections, imposed data retention and disclosureobligations 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, increasedsurveillance measures generally, and instituted new measures to fight financingof terrorism.[19]

The CriminalCode also lists a series of offensesthat are considered acts of terrorism"where they are committed intentionally in connection with an individual orcollective undertaking the purpose of which is seriouslyto disturb the public order through intimidationor terror."[20]In addition, any criminal offense issubject to a higher sentence when committed in connection with a terrorist purpose. For example, an attack on life,subject to a maximum prison term of30 years, may give rise to life in prison if perpetrated in connection to a terrorist act.[21]

A "flexible" approach

Counterterrorismofficials and government authoritiescite the lack of a terrorist attackin Francesince the mid-1990s as proof of the system's effectiveness. The key to thissuccess, according to many, has been the willingness and ability to adapt criminal laws and procedures to respond to theparticular exigencies of the fight against international terrorism. In this view, it is precisely the flexibilityof the French criminal justicesystem that has eliminated the needto resort to extrajudicial or administrativemeasures in the fight against terrorism.[22]

In an interview with Human Rights Watch, Jean-Louis Bruguière,France's most famous and controversial counterterrorism judge (now retired), compared the Frenchjudicial approach favorably to abuses committed by the United States at theGuantanamo Bay detention facility, and by the United Kingdom, where foreignterrorism suspects were detainedindefinitely without charge from 2001 to 2004 until the highest court ruled themeasures illegal.[23]

According to Bruguière,

Every government has an obligation to react to the threat.But the common law system is too rigid,it can't adapt because its procedural laws are more important than the criminal laws at the base, and the procedure dependson custom so it doesn't change easily. The civil law system is more flexiblebecause it functions according to laws voted by parliament and can reactfaster.[24]

Flexibility and adaptability may be criticalelements in an effective counterterrorism strategy, but they must not stretch the rule oflaw to breaking point. An appropriatecriminal justice approach must bebased on fundamental procedural guarantees ensuringthe right to a fair trial, which are engaged from the outset of a criminal investigation.

Role of the Investigating Judge inTerrorism Cases

The role and power of thespecialized counterterrorism investigating judges-referred to by one analystas "informed, independent and pitiless adversariesof terrorism in all itsforms"-cannot be underestimated.[25]

There are currently seven investigating judges specializedin terrorism cases.[26] Bruguièrewas the best known among them. He was head of the pool of specialized counterterrorismjudges when he stepped down in 2007 after 20 years.[27]During his tenure, Bruguière earneda reputation for uncompromising dedication to his work. Known by nicknames suchas "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 systemis magnified with respect to terrorismcases. The logic is that a security-cleared,specialized, and experienced judgewill, on the basis of all relevant information, includingsensitive intelligence material, beable 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 themembers of the network.[29]

Defense lawyers complain,however, that the way in which judicial investigations in terrorism casesare conducted seriously underminesthe right of each defendant to aneffective defense.[30] Thisright is a cornerstone of the right to a fair trial.The International Covenant on Civil and Political Rights (ICCPR) and theEuropean Convention on Human Rights (ECHR) stipulate the minimum guaranteesnecessary to ensure the right to afair trial to all persons accused ofa criminal offense. These include timely and confidential access to counsel, andadequate time and facilities to prepare the defense. Another key element isrespect for the principle of"equality of arms," which requires that the prosecution and the defense haveequal opportunity to prepare and present their cases, includingthe obligation on the prosecution to disclose all materialinformation.[31]

Motions denied

Almost all defense attorneys we spoke with complained thatinvestigating judges routinely deny their requests for investigative steps tobe undertaken in the course of the judicial investigation.

The experience ofSébastien Bono during his defense ofChristian Ganczarski is onlyslightly extreme: only one of his 24 requests for investigative steps wasaccepted (an inquiry commission to Saudi Arabia).[32]Ganczarski is a German national alleged to be a significant al Qaeda figure. Hewas arrested in France inJune 2003 after being expelled from Saudi Arabia in what his lawyercalled a "disguised extradition." He faces charges before the Paris Court of Assize for involvement in a 2002suicide attack on a synagogue in Tunisiathat left 21 people dead. Among the23 motions denied was a request by Ganczarski's lawyer for an actual copy, andnot just a transcript, of the tapeof a conversation on the morning of the synagogue bombing between Ganczarskiand Nizar Naouar, the suicide bomber who carriedout the attack.

The lawyer for a young man accused of association demalfaiteurs, who asked not to be identified because the case is still in thejudicial investigation phase, said all three motions he has filed thus far havebeen denied. These included twomotions for a joint deposition between defendants, and the extradition of anindividual from Algeria whose allegedconfession is pivotal in the case against his client. 

Also denied were requests for the return of a relativelysmall amount of money confiscated at the time of client's arrest (his client isout 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 hisclient, who was still in pretrialdetention at the time. Without such authorization,defense attorneys are not allowed to give copies of any elements of the casefile to their clients; they can only show, read or summarizethe documents. The investigating judge denied the request on the grounds thatthere was a risk of his client usingthe information to pressure others involved in the case.[33]The inability to share the case file with the accused has a negative impact onthe lawyer's ability to mount an effective defense, according to this attorney,because "the case file is so big, there are details that we [lawyers] can missbut the client could consider important."[34]The parliamentary commission that conducted an inquiry into the Outreau Affairrecommended that all suspects under judicial investigation, including those in pretrialdetention, have an unrestricted right to their case files.[35]The requests described here are nottechnically motions for investigative steps.

As noted above, lawyers can appeal against any decisions byan investigative judge to the Investigating Chamber. The presidentof the Chamber has the authority toreject the appeal in a reasoned judgment or transmit the appeal for examinationby the full chamber; this decision cannot be appealed.[36]All of the motions discussed above were rejected by the presidentof the Chamber.

Unmanageablecase files

Defense attorneysargue that the length and complexity of judicial investigations in terrorism cases considerably obstruct their ability tomount an effective defense. As discussed in greater detail below, investigationsinto Islamist terrorism are oftenprotracted, complicated inquiries into alleged networks of like-mindedindividuals, leading often to voluminous case files tracingthe phone calls, travels, meetings, as well as opinions, of a large number ofpeople. According to lawyer Dominique Tricaud, this means case files built on "an idea, amovement, and not on the accused. And then the defense becomes impossible."[37] Henride Beauregard, a court-appointed attorney for one of the defendants in a majorterrorism trialinvolving eight defendants, complained at trialthat he had been unable to effectively defend his client:

There are 7.5 metersof case file, 78 volumes … 325 kilos of paper. That represents 541 hours ofreading time, in other words three and a half months. The lawyer's fee for Mr.Charouali [his client] is 450 euro. So when you do the math, I have the right to 75 cents per hour to guarantee his defense.And I didn't have two to three months to prepare my case like the prosecutordid, but one-and-a-half months. The defense lawyer cannot do his job.[38]

In mid-2007 De Beauregardfiled a complaint against France before the European Court of Human Rights forviolation of article 6(1)-the rightto a fair trial-and article 6(3)-right to necessary time and facilities to preparethe defense. At this writing theCourt has not made a decision on admissibility of the complaint.

Whilethe 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 complainedthat even if they were to obtain these copies, they wouldn't have enough roomin their offices for the entire casefile in the major terrorism investigations.Lawyers are entitled to receive a copy of the entire file on CD-rom once theinvestigative phase is completed; because electronic copies allow forconducting keyword searches and cross-referencing information with relativeease, access to an electronic copy at an earlier stage would facilitate properand timely preparation of the defense.

IV. Criminal Association inRelation to a Terrorist Undertaking

The particularityof the law is that it enables us to prosecute individuals involved in terrorist activity without having to establish a linkbetween that activity and a specific terroristproject. That's the big difference with the situation abroad where you have tohave a link to a specific project. This text allows us to take action wellahead of the threat and to move against clandestine support networks orlogistical support for these organizations.

-Jean-Louis Bruguière, then chief counterterrorism investigating judge[39]

This chapter examines five related concerns arising from the association de malfaiteurs offense.First, the offense lacks legal precision, making it difficult for individualsto know what conduct is prohibited, and giving too much latitude to lawenforcement authorities forarbitrary action. Second, decisions to arrest suspects and place them underformal investigation are based on a low standard of proof and an approach thatfavors casting a wide net. Third, there is a presumption in favor of pretrial detention, despite decisions being taken by aseparate "liberty and custody judge," with suspects subject to lengthy periods of pretrialdetention while judicial authoritiespursue complex investigations with multiple suspects. Fourth, the prominent useof intelligence material in judicialinvestigations, in the context of the close links between judges and theintelligence services, raisesconcerns about procedural fairness and reliance on evidence obtained from thirdcountries where torture andill-treatment are routine. Finally, some convictionsappear to be based on weak evidence.

Lack of Legal Precision

As already noted in Chapter III, the French Criminal Code defines association de malfaiteurs as"the participation in any group formed or association established with a viewto the preparation, marked by one or more materialactions, of any of the acts of terrorismprovided for under the previous articles."[40]The elements of the crime, asdeveloped in jurisprudence, include: the existence of a group of several peopleunited in a collective criminalpurpose; each member must have fullawareness of this purpose and the fact that it is a criminalundertaking; and this purpose must be demonstrated through one or more material acts. There is no requirement that any of theparticipants take concrete steps to implement execution of a terrorist act.

From its inception, the definition of association demalfaiteurs has raised considerable concerns about the lack of legal precision.The well-established principle oflegality, enshrined in article 7 ofthe European Convention on Human Rights, requires that criminallaws be sufficiently clear and well-defined so that people are able to regulatetheir conduct to avoid infringementand to limit the scope for creativejudicial interpretation by the courts.[41]

Human Rights Watch notes that the then European Commissionof Human Rights rejected as inadmissible a 1997 complaint alleging, inter alia,that the definition of association de malfaiteurs violated article 7 of theEuropean Convention.[42]This decision is based on CriminalCode article 421-1-establishing specific acts of terrorismsuch as murder, kidnapping, and unlawful weapons possession when committed withintent to seriously disturb thepublic order through intimidation orterror-and article 450-1 that provides a general definition of association demalfaiteurs in relation to any crime.Article 421-2-1 establishing association de malfaiteurs in relation to a terrorist undertaking as an autonomous terrorist act had not been inserted into the Criminal Code at the time of the acts at issue inthis case.[43]

In a 1999 report, "Paving the Way for Arbitrary Justice,"the International Federation for Human Rights (Federation Internationale desDroits de l'Homme, FIDH) called article 421-2-1 "open-ended" and concluded that it lent itself to "arbitraryinterpretation and implementation":

The intention of the article is quite clear: theinvestigating and prosecuting authorities… are statutorily absolved from anyduty to link the alleged participation with any actual execution of a terrorist offense or even a verifiableplan for the execution of such a plan…. [L]ittle or no effort seems to havebeen made in the context of the legal prosecutions of the cases that have beendrawn to our attention … to establish precisely which terrorist act, let alone which category of terrorist act, was allegedly being prepared … Thatfailure to concretize the alleged object of the association or conspiracy inevitably allows almost any kind of "evidence"however trivial to be invested withsignificance.[44]

Both the letter of the law and the jurisprudenceestablishing an expansive interpretation of association de malfaiteurs remainunchanged since the FIDH report, and Human Rights Watch research suggests thatthe charge continues to be used to arrest, detain, and even convict on the basis of weak evidence.

Counterterrorismprosecutor Philippe Maitre explained that the association de malfaiteursstatute criminalizes the preparatoryacts that are the furthest from the actual commission of a terrorist act. Drawing three concentric circles on a piece of paper, Maitre identifiedthe central circle as the terroristact, the surrounding circle as direct complicity-acts that immediately and directly contributeto the commission of the crime-andthe outer circle as any and all acts, no matter how removed in time and space, that have contributedto a terrorist enterprise. Even if these acts themselves are not crimes, "the mere fact of having participated in anenterprise is punishable behavior. When it comes to terrorism the consequences are so serious that any behavior that revolves around thisobjective is criminalized."[45]

Lack of precision in the law means there is no clarity as to what behavior is likely to give rise to a criminalsanction, and speech and association that would normally be protected underinternational human rights law-nomatter how offensive-can be used as evidence of criminalintent.

The requirement that a law is formulated with sufficient precisionto enable an individual to regulate his or her conduct, is relevant not onlyfor article 7, but also because of the impact that the law could have on thelegitimate exercise of rights ofassociation, expression, religious freedom, and personal life (articles 8 – 11of the European Convention on Human Rights). These rightsare not absolute and may be subject to lawful interference, but thisinterference can be arbitrary where overly broad laws give undue discretion toauthorities or lack adequatesafeguards in how that discretion is exercised.[46]

Our research indicates that the interpretation of theassociation de malfaiteurs statute and the conduct of terrorism investigations raise concerns aboutillegitimate interference with these protected rights,in particular freedom of expression and freedom of association. Unlikeinvestigations into violent Basque separatism-with ETA as a structuredorganization with clearly identifiable goals and tactics-most investigationsinto alleged Islamist terroristactivity in Franceare based on mapping of networks of contacts. This can lead to the arrest andindictment of family members, friends, neighbors, membersof the same mosque, coworkers, or those who frequent a particular restaurant. Similarly, there appears to be too much scope for criminal action to be undertaken against individualswho share extremist views and may even express support for Jihad, for example,but who have not taken any identifiable steps toward engaging in terrorist violence.

A liberty and custody judge we interviewed referred to associationde malfaiteurs as an "intangible" and "difficult to define" offense with "verybroad constitutive elements", adding that in many cases involving Islamistterrorism the only element iscontact among a group of people. The judge describeda case in 2007 involving a group of six or seven young Muslim men who talkedabout going to Iraqto fight. "They would get together, and some of them had contact with someonewho had actually gone to Iraq.And so you ask yourself if this is a network. You wonder if the fact of havingthese contacts [means] maybe there are other things behind."[47] Thejudge sent most of them into pretrialdetention, while two or three were placed under judicial supervision. The judgedoes not know what has happened with the case and no longer has the dossier.[48]

A former JLD describedthe kinds of cases he saw: "Young Frenchmen from the Maghreb,between 20 and 25 years old, who dreamed of finding an Islamic ideal. Smallfry, just these young guys with posters of Bin Laden in their bedrooms. Theywere accused above all of going to training camps somewhere, nothing in France,which is already problematic. You send people to prisonin counterterrorism matters for very weak reasons. There wasusually some kind of evidence, but of what? You had numbers in cell phones, trips, intense religiousness, consultation of certainwebsites …"[49]

Low Standard of Proof behind Decision to Arrest

The goal is to have as many ongoinginvestigations as possible to allow for coercive measures like wiretaps andabove all it allows for putting people in pretrialdetention right away. There is thisexcess, [when] there are no elements, when there is evidence that would beinsufficient in ordinary criminallaw, but once it's stamped terrorism,it's enough to jail someone.[50]

-Nicolas Salomon, defense attorney

The expansive interpretation of what can constituteparticipation in a criminalassociation in relation to a terroristundertaking translates into a relatively low standard of proof for arrest andthe decision to place a suspect under judicial examination.

Casting a wide net

One characteristic of investigations into association demalfaiteurs has been the arrest of large numbers of people who might have someconnection with an alleged terroristnetwork. The strategy of casting a wide net ("coup de filet") or "kicking the anthill" ("coup de pied dans la fourmilière") is based on the faith among counterterrorismpractitioners, according tosociologist and expert on French counterterrorism intelligence servicesLaurent Bonelli, in the strategy's "ability to destabilize the networks, and toundermine logistics. And it matters little if a good number of the accused arefound to be innocent after spending one or two years in pre-trial detention."[51]

Arrests and searches are ordered and supervised byinvestigating judges. Former judge Bruguière explained that the investigativejudge oversees these actions "in real time"-the arresting officers will call the judge for instructions, forexample on whether to arrest other individuals besides the initial targets ofthe operation.[52]

In some instances, counterterrorismofficials have engaged in spectacular raids, referred to as "rafles" in French.[53]On November 9, 1993, 110 people werequestioned and 87 taken into custody on suspicion of involvement in terrorism, in a police action code-named "OperationChrysanthemum." Only three people were eventually placed under officialinvestigation.

In November1994, 93 people were arrested in a single day, the first of a series of arrests over the next two years of alleged members of a network in support of Islamistcombatants in Algeria. On June 25,1995, 131 people were arrested in five different cities across France,again on suspicion of involvement in terrorism.Ultimately, 138 people were tried in1998 for association with a terroristgroup, referred to in Franceas the "Chalabi network." The highly controversial trialwas held in a prison gymnasium onthe outskirts of Paris because of lack of space in the central court house. Fifty-one peoplewere acquitted, in some instances after spending three years in pretrial detention, while 87 were found guilty. Fourmore were acquitted on appeal. Of those convicted,39 were given sentences of less than two years, while the four prime defendants, includingMohamed Chalabi, the presumed ringleader,received sentences ranging from six to eight years.

On May 26, 1998, nearly 80 people were arrested in various European countriesin a coordinated operation to prevent what was describedas a plot to commit a terroristattack in Franceduring the 1998 Soccer World Cup. Fifty-threepeople were arrested that day; 40 of them were released within 48 hours. In theend, 24 people were taken to trial,and only eight were found guilty in 2000 of association de malfaiteurs. Their prison sentences ranged from four months to four years.

According to one counterterrorism official, the resort to mass arrests during this periodreflected the need for intelligence about radical Islamist networks: "[W]e wereforced to arrest lots of people just to get more information, which we didn'thave. Sometimes a number in a cell phone registry was enough [to warrant anarrest]. It was all to learn more about the networks, to get their cell phonesand computers. We didn't have to do that with the Basques and the Corsicans[because we already knew enough about them]."[54]

He argues that this technique is no longer necessary toobtain intelligence on radical Islamist networks, and when used, it is usuallyfor political reasons: "There can be political manipulation, when a politiciancomes to say, you have to arrest so and so on a particular day, even if wedon't have the proof."[55]

A counterterrorism official with the domestic intelligence service Renseignements Generaux (General Intelligence,RG) confirmed this, recalling an investigation he was ordered to conduct, inthe absence of evidence, that led to three people being arrested. They werereleased a few days later: "There are lots of storieslike that-lots of people arrested, it makes big news but then there's nothing.I know because I've seen it. There are political reasons, interests ofcircumstance. It's traumatic for the children and for the communities."[56]

While spectacular raids are nowless common, there have been more recent exceptions. On June 17, 2003, forexample, police officers raided the offices of the Iranian People's Mojahedin (MKO, anarmed Iranian opposition group in exile) and arrested 165 people, including Maryam Radjavi, the wife of the group'sleader Massoud Radjavi. Only 17 were eventually placed under formalinvestigation for terrorism-relatedoffenses. On a smaller scale, police arrested 14 alleged members of the Liberation Tigers of Tamil Eelam (LTTE,an armed separatist group in Sri Lanka) in April 2007 and five others in September 2007 on association de malfaiteurs charges. InFebruary 2007, 14 alleged members ofthe Kurdistan Workers' Party (PKK) were arrested in one day. After four days inpolice custody and two weeks in pretrialdetention, all 14 were released on provisional liberty. They remain underinvestigation for criminalassociation in relation to a terroristundertaking.

Nowadays, the majorityof counterterrorism investigations are prolonged and involvenumerous arrests spread out over a significant amount of time. Theinvestigation and prosecution of the so-called Chechen Network is illustrative.Over sixty people were arrested between 2002 and 2005, including sixteen couples, but only 27 people wereeventually brought to trial.[57]Fourteen of the wives or partners of suspects were held in police custody forthree or four days and subsequently released without charge. Rachida Alam, forexample, was subjected to 25 hours of questioning duringthe three days she spent in police custody in May 2004. During this time she had no access to or right to consult with a lawyer. A diabetic, Alam wastaken to the detention facility's hospital three times before the doctorfinally ordered that she remain there.[58]Of the two women prosecuted, one was convicted,while the other was acquitted after spending one year in pretrial detention with her infant daughter. Eight ofthe men in these couples were convictedat trial, one was acquitted, and theremaining seven were not prosecuted in this case.

The Ministry ofthe Interior statistical office told Human Rights Watch it was unable to providedata on the numbers of arrests for association de malfaiteurs, the number ofindividuals placed under judicial examination, or the number of these who wereremanded into pretrial detention.[59]A Europol study indicated that 130 suspected Islamists were arrested in Francein the first 10 months of 2005. Of these, 30 were remanded into pretrial custody.[60]In 2006, 139 suspected Islamists were arrested, according to a Europol report(over half of all suspected Islamists arrested in the EU that year), while thatnumber decreased to 91 in 2007.[61]The Europol reports for 2006 and 2007 do not contain statistics on remand intopretrial detention. Nicolas Sarkozysaid in November 2005 that over 367individuals had been arrested on suspicion of terrorismsince the beginning of 2002; of these, fewer than 100 had been placed under judicialexamination and incarcerated.[62]

Presumption in Favor of Detention

It's easier to be more efficient in the French system wherethe investigating judge can detain someone for several months on a very generalreasoning.

-AntoineGarapon, executive director, Institut des Hauts Etudes sur la Justice[63]

The crime ofassociation [terrorism] is deducedfrom proximity to the devil: you area young Muslim, you shared an apartment with some Salafists, unwisely, youexchanged some letters … The level of proof is weak because it's about apresumed intention. The fact of having been close to a Salafist … means youmight have had the intention of committing a terroristact, [so] we should put you in prison.

-William Bourdon, defense attorney[64]

Until January 2001, investigating judges had the authority to remand suspects into pretrial detention. Now that authorityrests solely in the hands of special "liberty and custody judges" (juges des libertes et de la detention,JLD) created by a 2000 reform of the Code of CriminalProcedure.[65]

They make decisions about remand into pretrial detention after a suspect's first hearing with the investigating judge. They also decideon prosecution applications to renew detention and defense appeals againstdecisions by the investigative judges to refuse applications for provisionalliberty (see below). Although there are no JLDs specialized in terrorism, the fact that all terrorismcases are centralized in Parismeans that the seven JLDs covering Parisare called upon to take decisions concerning custody in all of these cases.

Under French law, pretrialdetention can be ordered and extended if deprivationof liberty is considered the only way to preserve materialevidence, to prevent either witnesses or victimsbeing pressured or to prevent those under judicial investigation and theiraccomplices from agreeing on false testimony; to protect the person underjudicial examination; to prevent the person from absconding; or to put an endto the offense or to prevent its recurrence.[66]

In minor felony cases, where the maximum prison sentence is 10 years, initial remand into pretrial detention is for four months. This period may be renewed for a maximum period of three years in terrorismcases (the Investigating Chamber can extend pretrialdetention by four months beyond the three-year limitin exceptional circumstances).[67]In serious felony cases, for crimes punishableby over 10 years in prison, pretrial detention is initially imposed for one year,renewable by six-month periods to amaximum of four years in terrorismcases (the Investigating Chamber can further extend pretrialdetention by two four-month periodsbeyond the four-year limit inexceptional circumstances).[68]When making an initial decision about whether to impose pretrial detention, and every time detention needs to berenewed, the JLD must hold a hearingwith the defendant and the public prosecutor. The first hearing to decide on remand into pretrial detention can only take place if the individualis represented by a lawyer. However, subsequent hearingsto determine extensions of pretrialdetention can proceed whether or not the individual's lawyer is present, thoughcounsel must be duly informed of any upcoming hearingswithin a reasonable amount of time. The JLD does not hold a hearing when examining a defense application forprovisional liberty.

The investigating judge retains significant authority over custody issues. For example, investigatingjudges can order a detainee's release under judicial supervision orunconditionally at any time, whether in response to an appeal for provisionalliberty or of his or her own initiative. Judicial supervision measures can include: house arrest; limitingmovement to a particular geographic area; a prohibition on meeting certainpeople or going to certain places; the wearingof an electronic tracking bracelet (with the suspect's consent); lodging a sumof money with the court as a guarantee; and the surrender of identificationpapers, including passport.[69]

If an investigating judge opposes an application forprovisional release, he or she must transfer the appeal to the JLD within fivedays. The JLD rules on the matter within three days without hearing the parties.[70]Applications for provisional release cannot be made directly to the JLD.

On paper, the JLD constitutes an important improvement and acritical safeguard against arbitrarydetention. In practice, however, theintroduction of this second layer of control does not appear to have made asignificant difference. A 2006 parliamentary report found that JLDs followedthe view of the investigating judge 89.7 percent of the time in 2004.[71] "It'sa trompe-l'oeil guarantee," according to Emmanuelle Perreux, president of a judge's union called the MagistratesSyndicate.[72]"You have to imagine his role. He has the prosecutors and theinvestigating judge who want detention, and he is all alone, and he has onlythe case file on which to base his decision."

In cases of remand into pretrialdetention or renewal of detention in the course of an ongoingterrorism investigation, the JLD isusually confronted with a case file running to thousands of pages. There isinsufficient time for the judges to read the entire case file, and they make noattempt to do so. As one JLD explained, "You don't have to read the whole case file.We're not there to judge the facts, we're there to evaluate whether detentionis necessary for the requirements of the investigation. We have theinvestigative judge's writtenreferral. We can read the summary of the facts, the last two or three volumesof the case file."[73]

A March 2007 reform gave the JLD the authority to postpone the initial hearing to decide on remand into pretrial detention for up to four days, precisely inorder to have more time to study the case file.[74] Theparliamentary report on the reform emphasized that the JLD "must base his [orher] decision on the merits of thecase file and not only on the mere criteria for pretrialdetention … the JLD was created precisely to add a second pair of eyes to theprocedure, including incriminating and exculpatory elements, and not just toperform a simple juridical verification with respect to the criteriafor remanding into detention."[75]One of the JLDs we spoke with did not immediatelyrecall this reform, and then said the authorityto delay the hearing had probablynever been exercised by any of the JLDs in the year since it was instituted.[76]

Conversations with one former and two current liberty andcustody judges suggest that a bias towards caution in terrorism cases, exacerbated by a lack of detachment andthe length and complexity of the terrorisminvestigations, creates a presumption in favor of detention. All three of thejudges we spoke with said there were probably higher rates of pretrial detention in terrorismcases, though none could point to official statistics. One JLD suggested thatthe liberty and custody judges followed requests for pretrialdetention from investigating judges and prosecutors in the vast majority of cases, and certainly in terrorism cases.[77]

All three judges spoke openly about the pressure, at timesself-imposed, to err on the side of detention in terrorismcases. "We're afraid to let people go free and to make a mistake. I don't givemyself the same freedom of evaluation that I take in other cases. In ordinary criminal cases, I stick to what the investigatorshave already found. In terrorismcases, I ask myself, what might they still find?" one explained.[78]

The former JLD quoted above describing"small fry, just these young guys with posters of Bin Laden in their bedrooms"nevertheless acknowledged the same pressure towards presumption in favor ofdetention: "We recognized that it[detention] was partly to scare them. But also it was very difficult to take the riskof letting them go free."[79] 

Investigating judges, liberty and custody judges, andprosecutors come from the same judicial corps and undergo the same training. Inthe course of a career in the administrationof justice system, the same person can serve in all three roles. JLD are appointed and supervised by the president of the Tribunalde Grande Instance.

All of the JLDs we spoke with had been investigating judges,one had also been a prosecutor. This "interchangeability," as one judge put it,makes it difficult for JLDs to maintain the necessary distance. "The JLD is avery good idea, but in a system where the judges and the prosecutors all comefrom the same judicial corps, the JLD doesn't have all of the desired independence… There's too much esprit de corps. It'snot about pressure, but this espritde corps that translates into solidarity."[80]

There may in fact be cases of direct pressure. A former JLDtold Human Rights Watch that he had to explain himself to his superiors when he failed to abide by the wishes of aninvestigating judge for pretrialdetention in a terrorism case:

It was the case of an Algerianliving in Japan,married to a Japanese woman, withtwo Shintoist children. He was arrested at Roissy [Charles de Gaulle airport, Paris] en routeto Algeria because histelephone number was in some terrorismsuspects' cell phones. He said it was because these people had come through Japan,and he hosted them … They wanted to put him in pretrialdetention but I said no. I said he could be placed under judicial supervisionat his sister's house in Lyon.[81]

The man, Djamel Hamouni, spent three years under judicialsupervision before a different investigating judge lifted the orders andallowed him to leave the country in November2007. During those three years, hewas prohibited from leaving the Lyon region,had to report to the police every week, and was unable to work. At this writing, he is in Algeria waiting for a visa toreturn to Japanand see his family for the first time in three-and-a-half years.[82]

A further problem is that there is no guarantee ofcontinuity of JLD oversight. Two or three JLDs are on call to handle newcases-individuals who have just concludedtheir time in police custody. But it is the head of the JLD section whoallocates a dossier when it comes to renewals and petitions for provisionalliberty. There is no rule or guideline to ensure that the JLD who firstremanded someone into detention will decide on renewals or release.

Intelligence Material and Torture Evidence

Intelligence material,including information coming fromthird countries, is often at theheart of association de malfaiteurs investigations. Indeed, most if not allinvestigations are launched on the basis of intelligence information.Intelligence material in judicialproceedings has a legitimate role in the effective prosecution of terrorism offenses. But the close relationship betweenspecialist investigative judges and the securityservices raises concerns aboutwhether judges are approaching such materialas potential evidence with the necessary skepticism and concern for the rights of the accused.

The use of evidence obtained from third countries where torture and ill-treatment are routineraises particular concerns, includingabout the nature of cooperation between the securityservices in France and those countries. Some defendants in France who credibly allege theywere tortured in third countriesinto confessing have successfully had the confessions excludedas evidence.

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

Judicial cooperation with the security services

Both domestic and international counterterrorism experts emphasize the cooperation betweenspecialized investigative judges and French securityservices. One counterterrorism official told Human Rights Watch, "That's theFrench distinctiveness: judges and police officersworking together every day. There's a kind of trust there. The passage betweenintelligence operation and judicial investigation is very easy. The judge is anally, not an adversary, and that is a big help."[83]

Investigative judges cooperate closely with the Directoratefor TerritorialSurveillance (Direction du Surveillance Territoire,DST) and the General Intelligence. Both agencies are part of the Interior Ministry.The DST is both an intelligence-gatheringagency and a judicial police force, which means DST agents can be assigned toassist investigating judges in criminalinquiries. In practice this translates into a continuous exchangeof information and joint strategizing between the investigative judges and thesecurity serviceagents.[84]

The ease with which sensitive intelligence material is put to use in judicial proceedings without compromisingintelligence sources and methods is the prideof French counterterrorism officials and the apparent envy of their counterparts in other countries.The United Kingdom Home Office, for example, has studied the investigatingjudge system in Francewith a specific interest in the way intelligence materialis introduced as evidence.[85]The specialized investigating judge, with his or her expertise, training, andsecurity clearance, is thedesignated filter of all intelligence information. Not only can unsourcedintelligence reports be entered into the case file (and subsequently used at trial), investigating judges may authorize any number of investigative steps, including arrests, on the basis of intelligenceinformation alone.

For example, the arrests in late Septemberand early October 2005 of individuals allegedly plotting terrorist attacks on the Parisunderground metro system, the headquarters of the DST, and/or a Paris airport is illustrative, and appear to be havebeen based largely, if not entirely, on statements allegedly made by a mannamed M'hamed Benyamina while in the custody of the Algeriansecret service,the Department for Information and Security(Departement du Renseignement et de la Securite,DRS).

Benyamina, an Algerian residing legally in Trappes,France, was arrested at theairport in Oran, Algeria, on September 9, 2005, as he was preparingto return to France.Benyamina told Amnesty International that Algeriansecurity officershad told him French authoritiesrequested his arrest. A February 2006 article in the French daily newspaperLe Figaro raising concerns that France had "delivered" a suspected Islamist to Algeriato make him talk under torture, cited two anonymous police sourcesacknowledging this French connection, while another source close to the caseinsisted that Algiershad its own reasons for being interested in Benyamina.[86]

Benyamina was held in DRS custodyfor at least five months, duringwhich his family had no information about his whereabouts and he was not underjudicial examination in either Franceor Algeria, making thisa case of enforced disappearance. Benyamina said he was detained in a small,dirty cell with no window or electricity,that he saw no one but his interrogators for the entire five months, and wasallowed to use the toilet only twice a day.[87]He never saw a lawyer or had the chance to challenge the lawfulness of hisdetention in any way. In March 2006, according to Algerianauthorities, he was placed in pretrial detention on charges of membershipin an international terroristorganization. The United Nations Working Group on Arbitrary Detention hasclassified Benyamina's five months in DRS custody as illegal, arbitrarydetention.[88]

Benyamina told AmnestyInternational that he did not want to talk about treatment in DRS detention aslong as he remains in Algeria, for fear ofreprisals.[89]There is evidence, based on dozens of cases of torture and ill-treatmentcollected by Amnesty International between 2002 and 2006, to suggest that theDRS routinely arrests and holds terrorismsuspects in incommunicado detention,with no access to a lawyer, where they are at particular riskof torture and ill-treatment.[90]

Emmanuel Nieto and Stéphane Hadoux were arrested in Francein early October 2005 on the basis of Benyamina's statements in DRS custody.Both claim they were subjected to physical and psychological abuse during police custody (see Chapter V for a detailedaccount of Nieto's experience).According to their lawyer, Benyamina subsequently exonerated Nieto and Hadouxin official judicial statements transferred to the French investigating judgein September 2006. It was on thebasis of this exoneration that the lawyer secured their release under judicialsupervision in January 2007, after over one year in pretrialdetention.[91]They remain under investigation.

This case illustrates the difficulties defendants face ineffectively responding to or challenging intelligence material. The lawyers for Nieto and others involved inthis case have requested Benyamina's extradition from Algeriain order to cross-examine him; these requests have been denied. And whileagents of intelligence services maybe required to testify at trial-andcan do so in a way that protects their identity-they cannot be obligated toreveal their sources. The UK Home Office study cited above concluded that while "the inability to probe or questionthe material underpinning theintelligence reports has never been challenged in France," in the UK "[d]enyingthe defence the opportunity to respond to potentially significant parts of theprosecution case would … have article 6 implications," referring to the article of the European Convention onHuman Rights guaranteeing fair trialrights.

Former investigating judge Bruguière explained that the integrationof intelligence information into judicial investigations is key to the fightagainst terrorism, and held up theFrench approach as an effective model. "There's no problem with disclosure oradmissibility of evidence," he said. Bruguière stressed, however, as did counterterrorismprosecutor Maitre, that no one would ever be convictedin Franceon the basis of intelligence information alone. Rather, Bruguière explained,the information "allows for orientingthe investigation toward materialelements. The intelligence information must be corroborated by other elements."[92]This essentially means that the investigating judge will take informationgathered by intelligence-gatheringmethodology, outside the scope of a criminalinvestigation and related judicial oversight, and "judicialize" it by ordering investigative steps to find corroborativeevidence. As Garapon indicates, the investigating judge plays a role of"interface" between intelligence and prosecution because the judicialinvestigation phase allows him to turn "useful intelligence information into aperfectly valid and transparent element of proof."[93]

In a 2007 report on democratic oversight of security services,the European Commission for Democracythrough Law (known as the Venice Commission, a body of the Council of Europe)warned that relying on control over securityservices by specialized judges as aform of oversight carries risks, includingover-identification with securityofficials and a loss of the independence and external perspective necessary forproper accountability. The report cites Franceand Spainas examples of this approach and cautions that "[t]he necessary awareness ofthe suspect's rights may graduallybe lost over the years spent in the isolated world of security intelligence."[94]

Up until very recently, France was among a small handful ofWestern democracies without anymechanism in place for parliamentaryoversight of its intelligence services.An October 2007 law created a special ad hoc parliamentary "delegation" composedof four representatives from each chamber of parliament.[95]The delegation, whose hearings willalways be closed to the public and whose work is covered by national security, can formulate recommendations to the prime ministerand the president. The delegationofficially began its work in February 2008.

Use of torture evidence

One of the greatest concerns arisingfrom the close relationship between the investigative judges and the security servicesin France is thatinformation obtained in third countriesunder torture or prohibited ill-treatment will be used in criminal proceedings in France. The absolute prohibitionagainst torture is firmly embeddedin customary international law and international treaties to which Franceis a party. The International Covenant on Civil and Political Rights, theConvention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, and the European Convention on HumanRights all affirm this cardinal principle.The ban on torture permits no exceptions or derogations and extends to the useof information obtained under torture in legal proceedings. Article 15 of theConvention against Torture provides that any statement that has been made asthe result of torture shall not be invoked as evidence in any proceedings,except against a person accused of torture as evidence that the statement wasmade. In accordance with article 55 of the French Constitution, internationaltreaties ratified by Francetake precedence over national law.

The use of evidence obtained by torture or ill-treatment isprohibited not only because it is unreliable but because, according to the European Court, itsuse "would only serve to legitimate indirectly the sort of morallyreprehensible conduct which the authors of Art. 3 of the Convention sought toproscribe, or as it was so well putin the US Supreme Court's judgment in the Rochin case … 'to afford brutalitythe cloak of law.'"[96]

Cooperation among intelligence and security servicesin different states is a criticalcomponent of the fight against terrorism.The existence of Alliance Base (a center in Parisfor counterterrorism coordination among Western intelligence services established jointly by US and Frenchintelligence in 2002) is one illustration of the close cooperation of Frenchintelligence services with the majority of their counterpartsin Western democracies. The DST andthe RG also share information and collaborate with a wide range of services, includingthose with reputations for torture.[97]

A counterterrorism official who spoke with Human Rights Watch oncondition of anonymity explained that French servicesnormally receive a refined product, in the form of a summary or simply atip-off, from a foreign intelligence service,rather than the raw intelligence. They then evaluate the reliability of theinformation taking into account the known methods and efficiency of the foreignservice involved and attempt tocross-reference the information. They will also try to ensure that informationcoming from a trusted partner, for example the United Kingdom, is not inreality from an untrustworthy source, for example Uzbekistan. The officialstressed that information obtained illegally, includingthrough torture or ill-treatment, is unacceptable because the information isnot reliable and it will ultimately be ruled inadmissible in court.[98]

In practice,judicial control over this phase is non-existent. As Bruguière explained,investigating judges receive information only from the DST, not directly fromthird-country sources: "They're the ones who do the interfacing [with otherintelligence services], and theydon't tell us where they got the information … We don't know whether themethods used were human or technical, or [even whether] the information comesfrom a third country …"[99]

Counterterrorismprosecutor Philippe Maitre confirmed this, explaining, "There is no judicialcontrol over the intelligence services.It's the judicial procedure that verifiesthe information that begins as intelligence … The originof the intelligence is not important, and we don't always know it."[100]Under these circumstances, it is difficult to see how the investigating judgecan exercise any control over the legitimacy of the methods used and the veracity of the information obtained when determiningwhether to open an official investigation or authorizecertain investigative steps.

But in fact, an investigating judge can fully "judicialize"intelligence information coming from abroad by instituting an "internationalinquiry commission" (commission rogatoireinternationale) to request official information from judicial authorities in a given country. The judge may travel tothe country to participate in, or observe, interrogations. Information gatheredunder these circumstances, regardless of the conditions of confinement andtreatment of the detainee before and after the international inquirycommission, enjoys considerable legitimacy.

The cases below illustrate the way in which evidenceobtained under torture or prohibited ill-treatment in third countries has been used in criminalproceedings in France.Individuals subjected to the prohibited ill-treatment in a third country andthen prosecuted in Francehave the opportunity to contest the use of this evidence, sometimessuccessfully, as illustrated below. There is very little scope, however, forchallenging information that may have been unlawfully obtained if the victim is not one of the defendants.

Several of the cases also illustrate the concerns arising from direct contact between investigative judgesand countries with poor records ontorture. In particular, the cases raise questions about the willingness ofinvestigative judges to turn a blind eye to allegations of abuse.

Djamel Beghal

Djamel Beghal is a 43-year-old Algerianwho has spent the last six years in solitary confinement in a French prison. He was sentenced in March 2005 to 10 years inprison, the maximum penalty for criminal association in relation to a terrorist undertaking. The Appeals Court subsequently confirmed thissentence and added the obligation to serve two-thirds of this sentence beforebecoming eligible for release. In December2006 Beghal's acquired French nationality was rescinded and he was orderedexpelled from Franceupon release from prison.

Beghal was convictedof association de malfaiteurs largely on the basis of statements he made undertorture and prohibited ill-treatment in the United Arab Emirates in September 2001. All the official court documentsrelating to the case state that Beghal was arrested at Dubai airport on September7, 2001, because he was using a fake French passport. Beghal was transitingthrough the UAE from Pakistanon his way to Morocco.He had apparently been identified, though it is not clear by whom, as an alQaeda operative implicated in plans to attack US interests in France. Beghal has claimed that hewas arrested at his hotel, hours after he had arrivedin Dubai, byfive or six men wearing sunglasses.[101]He was extradited to Franceon October 1, 2001.

In a writtenstatement, Beghal describedharrowing treatment in UAE custody, which included:

"Falaqa"with my feet in bowls of ice to clot my blood and hit on the soles of my feetdouble the intensity of the pain. And this … many days … Pulling out of the toenails … Injections of products provoking much pain, vomiting … Sleep deprivation until loss of speech. Deafening noises.Wisdom teeth drilled withoutanesthetic and pain to the point of blackout.… Put in the cold in a big "fridge" or a cold room with the promise that I willdie of cold. Always the eyes covered … to the point where I stopped thinkingabout the bandage or the existence of light. What kept coming back withoutceasing: "Bin Laden gave you a mission." Then in the face of my negativeanswers, a break and – I think after September11 and its events – they came back with a scenario:"You were charged with attacking the USembassyin Paris,"just like that, without preamble. They didn't stop hammeringme with this story.[102]

After a long flight from Dubai in which he was "suspended like a bat,hand-cuffed to the hooks used by parachutists,in the glacial cold of high altitudes,"[103]Beghal was taken directly to the investigating judge and subjected to aseven-hour interrogation on October 1, 2001.[104]His court-appointed lawyer did not advise him to remain silent, nor did thelawyer demand that the hearing bepostponed.

On this occasion, Beghal denied any plot to commit a terrorist attack on US interests in France. He told the investigatingjudge about the conditions and treatment duringdetention in UAE. The forensic examination ordered by the investigating judgeimmediately after the interrogationrevealed some traces of the kind oftreatment Beghal reported-for example a bruise on his leftarm, as well as marks on his leftankle and sole of the foot and a slight swelling of a toe on his left foot-and the doctor noted a "post-traumaticeffect of the alleged events."[105]

The 10th Chamber of the Correctional Court nonetheless allowedall of Beghal's statements made in the UAE as evidence at trial, includinghis alleged confession that a high-level al Qaeda operative named Abu Zubayhdahhad tasked him with organizing an attack on the USembassyin France.[106]Applying a circular logic, the court held, "Even if Djamel Beghal wouldprogressively retract, and thendefinitively do so at the court hearing,the statements he made in the United Arab Emirates, it must be acknowledgedthat the essence of these, manifestly confirmed duringhis first hearing with theinvestigating judge [in France], would be in any event confirmed by numerousinvestigations."[107]These investigations include DSTreconstructions of Beghal's travels; police operations in France, Belgiumand Spainthat confirmed contacts among alleged membersof the group; and the statements in custody of variousindivduals, including NizarTrabelsi. Trabelsi is a Tunisiannational who was arrested in Belgiumon September 13, 2001, andeventually convicted in 2003 ofplotting an attack on a NATO air base in Belgium. There were suggestionsthat Trabelsi was meant to execute the attack on the USembassyin Paris,a charge he always denied, whereas he confessed to the Belgian plot.[108]

The Correctional Court ruled that Beghal was a member of a terroristnetwork because of his contacts with certain individuals identified ashigh-level al Qaeda operatives. The judgment cites DST information aboutBeghal's movements, which includedtime spent in paramilitary camps in Afghanistanand contact with alleged al Qaeda recruiters Abu Qatada and Abu Doha in theUnited Kingdom, all of which Beghal admitted to both in the UAE and in France.[109]The French court held that Beghal would have engaged in a terrorist mission in France had he not been arrested inthe UAE.[110]

Beghal did in fact confirm, in his first session with theinvestigating judge, that he knew certain individuals identified as members of radical Islamist movements, notably AbuQatada in London,as well as some of Beghal's co-defendants and Nizar Trabelsi. But Beghal deniedhe had met Abu Zubayhdah in Afghanistan, and said his time in Afghanistanwas not connected to al Qaeda.

The Appeals Court upheld Beghal's conviction in December2005 even as it determined that the testimony from the UAE could not be heldagainst him. Noting that the only effective proof of a plot against USinterests in Paris is the testimonyobtained in Dubai "under conditions not compatible with the respect for the rights of defense," the 10th Chamber ofthe Appeals Court nevertheless concludedthat there was ample evidence to indicate Beghal's "implication … in the mostradical Islamist movement, that supported by al Qaeda, whose objectives ofdestabilizing Western regimes supporting the United States and Israel areproven."[111]

In February 2008 Beghal's lawyer concluded,"The French justice system has not done itself honor in the way the Beghalaffair was conducted, from the moment he was brought here until today. We foundourselves in the obligation to prove his innocence, in a reversal of all therules of the game, and it was impossible. Everything was understood from thestart, we never once thought he would be acquitted. The judge's mind was madeup from the start. There were dozens of volumes, with nothing interesting inthem, but there was an accumulation of information to make believe that he[Beghal] could commit a terroristact in the future."[112]

Said Arif

Said Arif was oneof the main figures in the so-called Chechen Network trial.The case involved 27 defendants, most of whom were accused of undergoingparamilitary training in camps located in the Pankisi Gorge in Georgia, with a view to returning to Europe to perpetrate terroristattacks. The group was dubbed the "Chechen network" because many of themallegedly planned to go to Chechnyato fight, although none of those on trialactually did so.[113]

Arif, a43-year-old Algerian national, wasdetained in Damascusby Syrian intelligence services in July 2003. He was brought to Francein June 2004, under an ad hoc procedure in the absence of an extradition treatybetween the two countries. A Frenchinvestigating judge traveled to Damascusin May 2004 as part of an international inquiry commission and provided Syrian authoritieswith a list of questions to ask Arif.These questions were accompanied by "answers" in parentheses.[114]The French judge did not participate in or attend personally theinterrogations, and to our knowledge did not see Arifin custody.[115]

Arif has crediblyalleged that he was tortured throughout the year he spent in Syrian custody:

I was held on premises of the Syriansecret servicefor one year in inhuman conditions. I was in an individual cell 1 meter by 1.9meters, with a ceiling of 2 meters, in total darkness. I slept on the dirtyfloor, without access to medical care. I couldn't talk or had no notion oftime, and I was hit time and again. Duringthe winter I did not have heating or hot water … that year in detention in Damascus, I was torturedwith a television cable, and they had put me in a tire, which affected myspinal column. Getting slapped was the least of the abuse I suffered … I wasforced to admit facts I didn't know, ignoring,up until the last day of my detention, that there was an international inquirycommission and without the assistance of a lawyer .[116]

Torture is a serious,well-documented problem in Syria, especiallyduring interrogations.[117]

Arif disavowedeverything he is alleged to have said while in Syriancustody. His lawyer, Sébastien Bono, successfully argued that all pieces ofevidence emanating from his detention in Syriathat were included in theprosecution's case against Arifshould be inadmissible at trial. Thecourt, having heard testimony from the International Federation of HumanRights, Amnesty International and the World Organization against Torture aboutwidespread and systematic torture in Syria,agreed that it was "likely that the statements made by Said Arif in Syria… were made under torture, and that his confessions were obtained by the samemethod."[118]

The court nonetheless convictedArif in June 2006 of membership in a criminalassociation in relation to a terroristundertaking, and sentenced him to nine years in prison.The ruling found that Arif wasproved to be a member of Abu Doha'sterrorist network, that he had spenttime in Afghanistan in contact with"leaders of the radical Islamist movement," that he spent time in the PankisiGorge in Georgia where he was in constant touch with membersof a French terrorist cell, and thathe was in Barcelona in March 2002 at the time when a meeting took place amongradical Islamists "to define the new Jihad strategy in Europe."[119]The senior judge of the 10th chamber of the Correctional Court that tried the case, Jacqueline Rebeyrotte, also presidedover the trial of the so-called Frankfurt group accused of plotting an attack on theStrasbourg Christmas market in 2000.In the 2004 verdict, which convicted10 men, the judge (and her two fellow judges) referred to Arif as one of several "big fish" and suggested thathis membership in a "radicalIslamist movement" was a given.[120]

Statements by Arif'sco-defendants, as well as alleged membersof radical Islamist movements or networks, were key to the case. Most of thosewho provided testimony in police custody and in some cases to the investigatingjudge against their co-defendants later retractedthese statements, alleging physical and/or psychological pressure during police custody.[121]Statements made by Laurent Mourad Djoumakh,who was convicted for participationin the Strasbourg Christmas marketplot, appear to have been particularly important to the prosecution's case andthe verdict. Djoumakh testified thatArif was a memberof Abu Doha's network, and that Ariftraveled to Georgiain 2001 using Djoumakh's passport.[122]

In May 2007 the Appeals Court upheld the exclusion of thetestimony from Syria yet confirmedthe lower court's conviction andincreased Arif's prison term to 10 years-the maximum sentence-with theobligation to serve at least two-thirds of his sentence. (The Prosecutor'sOffice had argued before the Appeals Court that the lower court dismissed Arif's Syriatestimony "improperly" because there was no evidence that Arif had been tortured, and the Syrians had no interest in torturingArif "since they were not interestedin his case and delivered him to France very quickly after his arrest"[123]).

The success of Arif'slawyer, Sébastien Bono, in having the testimony from Syriaexcluded has come at a price. The President of the Appeals Court criticized Bono for stating in his written arguments that the French investigatingjudges were complicit in torture, calling this language "slanderous andoverstepping the bounds of freedom of speech of the defense."[124]In November 2007 the Prosecutor'sOffice asked the Disciplinary Committee of the ParisBar Association to censure Bono for these accusations. Despite the view of the president of the Bar that Bono's actions werelegitimate defense efforts, the Prosecutor's Office opened its own disciplinaryaction against Bono in January 2008. By law this means the Bar Association'scommittee must conduct an inquiry. Possible sanctions includetemporary or permanent disbarment. The decision may be appealed to the same Appeals Courtchamber that ruled on the Chechen Network case.[125]

Abu Attiya

A portion of the information in the Chechen Network casefile appears to have come from a Jordanian man known as Abu Attiya (who was nota defendant in the trial). A DSTreport dated November 6, 2002, atthe outset of the judicial investigation, stated that Abu Attiya was in chargeof preparations in Georgiafor chemical attacks in Europe.[126]A French investigating judge traveled to Ammanas part of an international inquiry commission and submitted questions for AbuAttiya to the Jordanian authorities.To the best of our information, the French judge neither directed nor participatedin any of the interrogations. There are references to Abu Attiya in the305-page verdict from June 2006 and the Appeals Court decision from May 2007.Indeed, the higher court lists Abu Attiya's statements while in custody in Jordan as one of the principalelements of proof of a plot to commit a chemical attack in France.[127]

The lawyer for Zine Eddine Khalid, one of the defendants inthe Chechen Network trial, arguedbefore the Appeals Court that Abu Attiya's testimony should be excluded given the conditions under which it wasobtained and "the absence of details about the sources of the information ofthe DST."[128]

Human Rights Watch interviewed Abu Attiya in Jordanin August 2007. He gave his full name asAdnan Muhammad Sadiq Abu Najila. He told us he was arrested in Azerbaijan in mid-August 2003 and transferred toJordanin late September 2003. He was heldin custody by the Jordanian General Intelligence Department (GID) until December 30, 2007, when he was released, after overfour years, without charge. The GID has a record of arbitrary arrest andabusive treatment of prisoners.[129] Duringinterrogations, "they asked me about people who came from Europe.Those people wanted to go to Chechnyabut couldn't; I didn't have much to do with them," Abu Attiya told us. He claimshe never confessed to a plot to commit attacks in Europe.

Abu Attiya said hesuffered from sleep deprivationwhile in GID custody and that he was given pills and injections. "Theinjections made me nervous and shaky, so I couldn't concentrate. The pills werevery small, they made me nervous and jumpy," he said. He was not allowed toread his "confession" before he signed it.[130]

When asked by Human Rights Watchabout information from Abu Attiya being used in the Chechen Network case, theinvestigating judge said, "But that was an international inquiry commission to Jordan...I have only participated in non-violent inquiry commissions."[131]When told that Abu Attiya has alleged ill-treatment in Jordanian custody, thejudge said, "I don't know anything about that."[132]

Convictions Based on Weak Evidence

Terrorism association de malfaiteurs cases are tried by three-judge panels in the Correctional Court in Paris.There is no specific chamber of the Court that hears these cases, though mostare tried in either the 13th,14th, or 16th chamber. All appeals against Correctional Courtverdicts are heard by the same three judges presiding over the 10thchamber of the Paris Appeals Court.Both the Office of the Prosecutor and the defendant can appeal; in many of thecases reviewed by Human Rights Watch the Appeals Court upheld convictions and often increased prisonsentences, and in some cases reversed acquittals and convicteddefendants.

The standard ofproof in the French criminal justicesystem is defined in article 427 of the Code of CriminalProcedure: judges (and juries)decide according to their "innermost conviction"with respect to the innocence or guilt of the defendant in a system where alltypes of evidence are admissible ("free proof" system). The trial chambers of the Correctional Court must provide reasonedjudgments explaining their verdicts. Judges and juriesat the Assize Court,which tries the most serious felonies, do not have to provide a reasonedjudgment. The European Court of Human Rights has held that the "innermost conviction" standard is functionally equivalent to thecriminal standard of proof "beyond areasonable doubt" used in common law jurisdictions.[133]

Judge Jean-ClaudeKross, the senior judge presiding over the 16th chamber of the Paris Correctional Court, explained that "we rule basedon the material and legal elementsin the case file, including thepolice investigation" and stressed the importance of adversarial hearingsin open court in elucidating the facts of the case.[134] Senior Prosecutor Philippe Maitreemphasized that any doubt should benefit the accused.[135]

Human Rights Watchwas unable to obtain statistics on the ratio of convictionsto the number of accused in cases involving alleged Islamist terrorism networks. Anecdotal evidence suggests that amajority of the accused in theseoften complex cases involving numerous defendants is convictedof something, either the main accusation of criminalassociation in relation to a terroristundertaking, or minor crimes, suchas forgery, decoupled from a terroristintent. Europol figures indicate that France had a 5 percent acquittalrate in terrorism trials in 2007: there were 52 convictions and 3 acquittals out of the total of 55verdicts. These included 31 verdictsinvolving Islamist groups defendants and 24 cases involving separatistdefendants. The acquittal rate for 2006 was 0 percent, as 21 convictions were handed down in 21 verdicts.[136]

A number of thoseconvicted on association demalfaiteurs charges are given sentences that appear to equate with the timealready served in pretrialdetention. This may reflect the often lengthy detention before trial in terrorismcases, but perhaps too an effort to "cover" the periodof time already served to avoid any appearance of unjust detention.[137] And because French law provides forautomatic reductions in prisonsentences, these individuals are effectively serving even longer sentences thanthey would have had they begun serving time only after conviction.[138] Hassan el Cheguer and Hakim Mokhfi were both sentenced to four years, with oneyear suspended, for membership in aterrorist network, having spentexactly three years in pretrialdetention. Initially they were charged, along with Ghulam Mustafa Rama, withproviding support to Richard Reid, the Britishcitizen known as the "shoe bomber" because he attempted to ignite a bomb hiddenin his shoe on a Paris-Miami flightin December 2001. The prosecutorsultimately admitted there was insufficient evidence on this count and insteadargued that Rama had recruited the two younger men into terrorism. El Cheguer and Mokhfiadmitted spending three weeks in September2001 in a training camp in Pakistan-administeredKashmir run by an Islamist organization calledLashkar-e-Toiba. They claimed they had not been fully informed and had beensurprised and scared to discover itstrue nature.

Some of these convictions to time already served appear to be basedon evidence establishing little more than contact between certain people. A2005 case involving six defendants prosecuted for membershipin a network plotting an attack on US interests in France illustrates the concern. Themain figure in the case was Djamel Beghal (discussed above). Two of the otherdefendants were Rachid Benmessahel, who was sentenced to exactly three years inprison, the periodhe had already spent in pretrialdetention, and Johan Bonte, who was sentenced to one year, after having spentthree years in pretrial detention.

The judgment-whichdocuments a large number of phone calls and variousmeetings between the six defendants in the case, includingBenmessahel and Bonte, -establishes without a doubt that these men knew eachother (Bonte is Beghal's brother-in-law).[139] But it does not establish any link to aspecific terrorist plot in France,and leaves significant room for doubt that these men formed a network or groupwith a clear terrorist purpose.

Benmessahel's wife expressed her frustration withthe investigation:

I had lots ofdisks of articles on Islam, on all sorts of topics, includingone on martyrs. All in French, which my husband doesn't even speak that well. Iconfirmed they were mine. My husband said they were mine, but the policeinsisted on saying they were his. I had proof that he went to Dusseldorf to buy a car, but no matter what Ishowed them, they insisted it was to meet with terrorists.Rachid stepped on an anti-personnel mine in Algeriawhile he was doing his military service.[The investigating judge] kept saying he'd been injured in Afghanistan,and when I gave documentation from Algeria about Rachid's injury tothe lawyer to give to [the judge], he said he wouldn't take it into account,anything can be bought in Algeria. They said myhusband had gone to Afghanistan in1997-1998, and when I proved he hadn't, they said he'd gone in 2000. But he'dbeen operated on then, so finally they said he was the person in Francetasked with coordinating everything. I had the feeling I was hitting my headagainst a brick wall.[140]

Two years afterRachid Benmessahel was released fromprison his acquired Frenchnationality was rescinded and he was expelled to Algeria.His wife, a French citizen, and their three children, continue to live on theoutskirts of Paris.

Ibrahim Keita andAzdine Sayez were tried along withfour others for membership in anetwork providing support for al-Qaeda operatives and recruitment to terrorism. Three of the other defendants were convicted of providing financial and logistical supportto the two Tunisian men who killedthe military leader of the National Islamic United Front for the Salvation ofAfghanistan, Commander Ahmed ShahMassoud in September 2001. A fourthwas sentenced to two years in prisonfor organizing paramilitary training camps. Although triedalongside these men, Keita was accused of providing support to Willy Brigitte, a French citizen who was ultimately convicted of plotting a terroristattack in Australia.Keita, a pious Muslim, shared a small spartan room with Brigittein Paris:Keita slept there during the day,while Brigitte could use it at nightwhile Keita worked as a truck driver.This, and the fact that he participated in what he called hiking trips organized by the mosque he attended, appear tobe the only basis for the association de malfaiteurs accusation. After spendingroughly a year-and-a-half in pretrialdetention, Keita was acquitted by the Correctional Court. The Office of the Prosecutor appealed,however, and the Appeals Courtreversed the acquittal and sentenced Keita to two years in prison. With time already served and automaticreductions, Keita did not return to prison.

His co-defendantSayez appears to have been arrested and placed under judicial examination forlittle more than the fact that he owned a halal pizzeria patronized by many of theother defendants in the case. Keita himself would stop there to pick up a pizzawhile he worked making deliveries.Sayez spent roughly eight months in pretrialdetention before his acquittal. But like Keita, Sayez saw this acquittalreversed by the Appeals Courtand he was sentenced to two years in prison;unlike Keita, Sayez was rearrested and incarcerated to complete his sentence.[141]

Foreign jurisdictions have cast doubt on the evidential basisof some association de malfaiteurs convictions.In 2002, a German court refused to extradite Abdellah Kinai, an Algerian with refugee status in Germany, to France to complete a five-year prison sentence.

Kinai, now 64 yearsold, had been initially arrested on May 26, 1998, in Franceas part of the operation to avert an alleged terroristplot targeting the soccer World Cup in France that year. Kinai waseventually accused of being a leading figure in a group formed to provide material and logistical support to the GIA in Algeria,and of giving his approval of a plot to murder Parismosque imam Dalil Boubaker. Kinai spent 11 months in pretrialdetention in Francebefore being released under judicial supervision. On December12, 2000, the Correctional Courtacquitted him of all charges. In this trial,16 out of 24 defendants were acquitted of the most seriouscharges related to membership in aterrorist association demalfaiteurs.[142] The prosecution appealed the acquittal,however, and on March 14, 2002, the ParisAppeals Court found Kinai guilty and sentenced him to five years in prison.

Kinai had returnedto Germany after theacquittal by the lower court, and he was arrested in Stuttgarton July 1, 2002, pending extradition to France to serve his prison sentence. After examining the case documents,however, the Higher Regional Courtin Stuttgart revoked the arrest warrant on November 22, 2002, and definitively declared Kinai'sextradition to Franceinadmissible on April 7, 2003,citing lack of legal grounds for the extradition request. With respect to thealleged membership in a criminal association to commit terrorism, the Court concludedthat "it is impossible to determine from the documents provided by the Frenchauthorities whether the networkallegedly led by the accused even fulfills the criteria of a criminalor terrorist organization … thereare no specific allegations that would allow the Court to determine theorganizational structure of this network." With respect to the alleged plot tomurder the imam of the Paris mosque, the Court alsofound it could not determine the existence of any criminaloffense.[143]

A Canadian courtalso took the view that a French convictionfor association de malfaiteurs was unfounded. Abdellah Ouzghar, a dualCanadian-Moroccan citizen, was convictedin absentia in April 2001 in Francefor association de malfaiteurs and passport forgery and sentenced to five yearsin prison.[144] Twenty-three others were convicted at the same time of belonging to theso-called Montreal Group. The group was allegedly linked to Ahmed Ressam, convicted in the United States in April2001 of attempting to smuggle explosives from Canadain order to blow up Los AngelesInternationalAirport.France sought Ouzghar'sextradition from Canadashortly after the 9/11 attacks in the US, leading to his arrest inOctober 2001 and lengthy extradition proceedings. In January 2007 a Torontojudge dismissed the claim that Ouzghar was a memberof an international terrorist groupbut allowed his extradition on the lesser charges (for example, passportforgery). A year later, in January 2008, the Canadian Ministerof Justice ignored the judge's finding and allowed extradition also on thebasis of the terrorism charge. As ofMay 2008, Ouzghar remained in Canadawith appeals pending.[145]

In France,anyone who spends time in pretrialdetention and is subsequently released without charge or acquitted of allcharges at trial has the right to compensation.[146] Saliha Lebik spent one year in pretrial detention with her infant daughter before beingacquitted of all charges by the Correctional Court in June 2006. Both Lebik, the wife of one ofthe principal defendants in theChechen Network trial, and herdaughter contracted tuberculosis inprison. Her husband Mérouane Benahmed was convictedof terrorism association demalfaiteurs and sentenced to the maximum of ten years in prison. The Appeals Court upheld Lebik's acquittal in May 2007, pavingthe way for her to receive compensation. At this writing,no decision had yet been rendered on Lebik's suit for over €220,000 in damages.[147] Those who are convictedbut sentenced to a shorter time in prisonthan already spent awaiting trial,like Johan Bonte (see above) do not have the rightto compensation.

V. Police Custody inTerrorism Cases

French Law and Procedure

French law provides one of the longer periods of police custody-before an individual istaken before a judge and either charged or released-in terrorism cases in continental Europe.[148]Under the French Code of CriminalProcedure (CCP), terrorism suspectsmay be held for up to six days before being brought before a judge. Standardpolice custody in criminalinvestigations is set at 24 hours with the possibility of one extension to 48hours. In cases involving terrorismsuspects, police may request judicial authorizationto extend detention to 96 hours, or four days, and to 144 hours, or six days,in certain circumstances.

Police have an additional 20 hours from the official end ofpolice custody to produce the detainee before an investigating judge. Police arenot allowed to interrogate the detainee duringthis period, which is meant to allowonly for any necessary travel time.

In practice, afour-day detention period in terrorism investigations is standard; extensions arevirtually systematic. The CCP stipulates that the judicial authority-which in practicecan be the investigating judge or the liberty and custody judge-must see thedetainee before authorizing theextension. Anecdotal evidence suggests that judges do regularly visit suspectsin the place of detention before authorizingextensions, for what are usually brief,on-site exchanges.

The power to hold terrorismsuspects for up to six days was introduced in January 2006 in cases where thereis a serious riskof an imminent terrorist attack orif the complexity of the case and the need for international cooperation imposethe need.[149]According to counterterrorism prosecutor Philippe Maitre, this power has beenused so far only once, to allow an extension to five days.[150]

Under the Code of CriminalProcedure, terrorism suspects, likeall detainees, have the right to beinformed of the reason for the arrest, the rightto request a medical examination, and a qualified rightto inform someone of their arrest.[151]Detainees do not have the right to amedical examination by a doctor of their own choosing, and the prosecutor, onadvice from the police officer in charge, may deny the right to inform a third party of the detention ifsuch contact is considered prejudicial to the ongoinginvestigation.[152]This denial appears to be standard in terrorismcases; none of the individuals we spoke with who had been arrested on terrorism charges were able to make any phone calls during their time in police custody. 

During policecustody, terrorism suspects haveseverely curtailed access to legal counsel. While most suspects have the right to ask to see a lawyer of their choice orcourt-appointed from the outset of detention, terrorismsuspects have access to a lawyer only after 72 hours, or three days, in policecustody.[153]If the judge extends police custody by an additional 24 hours before the end ofthe 72nd hour, first access to a lawyer is pushed back to after the96th hour, or after four days in custody. The detainee in this casewould be able to see a lawyer for the second time 24 hours later, or after fivedays in police custody. Each visit is limitedto 30 minutes, and counsel does not have access to any detailed informationabout the charges against their client. The lawyer must be given access to thecase file before the session with the investigating judge, and anecdotalevidence from numerous interviews with defense attorneys suggests this usuallytakes place three or four hours before the hearing.

All detainees in police custody in France, regardless of the reasonsfor their arrest, are questioned without the presence of a lawyer, they are notinformed of the right to remainsilent, and anything they say may be used against them at trial. While the final police report must list thelength of all interrogations, there are no rules establishing time limits on these interrogations or the amount of resta detainee must have between interrogations.

The same strictrules seriously limiting access to a lawyer apply whether counsel isprivately hired or appointed. The Parisbar association (Barreau de Paris) maintains lists of criminallawyers who volunteer to be "on duty" to assist those detained on criminal charges for the duration of police custodywho do not designate a privatelawyer. A different lawyer, either another legal aid attorney or a private lawyer, takes over the case as of the firstsession with the investigating judge (premierecomparution). In terrorismcases, detainees who are unable to hire a privatelawyer are assisted from this point on by one of the 12 "secretaires de la conference," an elite groupof young lawyers elected each year after a competitive process.

A 2007 law instituting obligatory video- and audio taping ofall police interrogations, as well as audio and video recordings of the first hearing with the investigating judge, in serious felony investigations explicitly excluded terrorism,drug trafficking, and organized crimecases.[154]While all interrogations of minors had been recorded since 2002, it was theOutreau Affair that created the momentum for instituting more generalizedrecording of interrogations in order to better protect the rights of detainees as well as protect the policefrom false accusations of mistreatment. A special parliamentary inquiry intothe Outreau Affair recommended recording all police interrogations, regardlessof the nature of the offense.[155]Terrorism, drug trafficking, andorganized crime cases were excluded in the end because of the "complexity" ofthese investigations.[156]

The combination of constraints on the rightsof suspects in police custody in terrorismcases-severely delayed and limitedaccess to counsel, no information about the rightto remain silent, the likelihood of being unable to notify a third party, andthe lack of limits on the durationof interrogations-create a situation in which detainees are denied the right to an effective defense at a critical stage and are at riskof prohibited ill-treatment.

Limited Access to Counsel

The right of allpersons accused of a crime to theassistance of a lawyer is a fundamental procedural guarantee. Article 14 of theICCPR and article 6 of the ECHR stipulate that everyone charged with a criminal offense has the right"to defend himself in person or through legal assistance of his own choosing"or be assigned free legal assistance if necessary. The UN Human RightsCommittee and the European Court of Human Rights have considered theseprovisions applicable to periodsbefore trial, including the periodin police custody.[157]The European Court of Human Rights found the United Kingdom in violation ofarticle 6 of the Convention because it denied a detainee access to a lawyer forthe first 48 hours of police questioning. The Court held,

[T]he concept of fairness enshrinedin Article 6 (art. 6) requires that the accused has the benefit of theassistance of a lawyer already at the initial stages of police interrogation. Todeny access to a lawyer for the first 48 hours of police questioning, in asituation where the rights of thedefence may well be irretrievablyprejudiced, is - whatever the justification for such denial - incompatible withthe rights of the accused underArticle 6 (art. 6).[158]

The UN Basic Principleson the Role of Lawyers requires that

All arrested, detained or imprisonedpersons shall be provided with adequate opportunities, time and facilities tobe visited by and to communicate and consult with a lawyer, without delay,interception or censorship and in full confidentiality.[159]

A 2003 European Commission Green Paper on proceduralsafeguards for suspects and defendants in criminalproceedings reflects these standards in confirming that the right to legal representation "arises immediatelyupon arrest" and that the suspect is entitled to such representation"throughout the questioning and interview stages of the proceedings."[160]

French tradition and current practicestand in stark contrast to these international standards. The right to see a lawyer in police custody was onlyintroduced in 1993, and remains limitedeven in ordinary criminal cases. Thepolice custody regime in terrorismcases in particular appears to be organized to be as oppressive as possiblewith a view to obtaining confessions. "The principlein the French justice system is that there is no defense against the police,"according to defense attorney HenriLeclerc. The lawyer's visit after 72 hours "is not very effective … [because] thelawyer doesn't assist his client duringthe interrogations [and] the person is defenseless," Leclerc contended.[161]

Numerous international human rightsauthorities have criticized the terms of police custody in France.In 1997 the UN Human Rights Committee expressed concern about "prolongeddetention in police custody" and delayed access to counsel under France's counterterrorism legislation, and urged France to bringits laws into conformity with articles 9 and 14 of the ICCPR.[162]Then Council of Europe Commissioner for Human Rights Alvaro Gil-Robles in 2005similarly recommended reformingaccess to counsel in order "to ensure that the fundamental rights of persons in police custody are respected."[163] Finally, the European Committee forthe Prevention of Torture (CPT), an authoritativehuman rights body of the Council ofEurope that conducts country visits, has repeatedly called on France to allowdetainees access to a lawyer from the outset of detention in all of its reportssince 1996 (see also below, section "Ill-treatment in Custody").[164]

Defense attorneys spoke of their frustration with thesystem. Fatouma Metmati, who defended two accused in the Chechen Network case,complained that the delayed access reflected "a distrust of lawyers, how elsecan you justify it?"[165]Another lawyer with experiencedefending terrorism suspects,Nicolas Salomon, said of the 30-minute interview, "It's pointless. It's onlyfor ensuring the health of thedetainee. We can't see him at the first hour, so we can't even verify if injurieswere done at arrest or duringgarde à vue."[166]The National Bar Association has long advocated access to counsel from the veryoutset of detention in all cases, and the "active presence" of the lawyer during all interrogations.[167]

The majority ofsuspects detained on international terrorismcharges are assisted, at least initially, by court-appointed lawyers.[168]Several people told Human Rights Watch that the lawyer they saw was of littleor no assistance. Abdul N., who has been arrested four times on terrorism charges since 1998 (to date he has not been convicted of any terrorism-relatedoffense) said of one occasion, "I saw a lawyer, but he told me, 'I'm just hereas a formality, I can't do anything for you.'"[169]On another occasion, he said the lawyer urged him to admit knowing otherindividuals arrested in the course of the same investigation if he wanted toget out of police custody.[170]

Several individuals said they didn't see a lawyer at all during their time in police custody. In 2006 Abdul N.was held in police custody for four days and met his court-appointed lawyer forthe first time for the hearing withthe investigating judge: "We had just five minutes in front of the judge'sdoor. And the same lawyer had to represent the woman [defendant] in the casetoo."[171]

Rachida Alam, who was arrested along with her husband in theinvestigation of the so-called Chechen Network, spent four days in policecustody without ever seeing a lawyer, and was then released without charge.[172]

Emmanuel Nieto was arrested in early October 2005 on suspicionof plotting attacks in Paris. The arrest was basedonstatements allegedly by a mannamed M'hamed Benyamina while arbitrarilydetained in Algeria.[173]Nieto told Human Rights Watch that he said no when he was asked if he wanted tosee a lawyer. "They made me sign a piece of paper, but then I changed my mindand I said I wanted one but they grabbed the paper away from me and said it wastoo late."[174]He didn't see a lawyer until rightbefore his first hearing with theinvestigating judge, after four brutal days in police custody. Thecourt-appointed lawyer told him it would be best for him to cut a deal.[175] Abdellah Kinai, who also claims he waspsychologically and physically ill-treated in custody, did not see a lawyeruntil just before the hearing withthe judge. Their stories aredetailed below.

Right to silence and theright to an effective defense

The right tosilence to avoid self-incriminationin criminal proceedings is agenerally recognized international standard. The European Court of Human Rightshas interpreted article 6 of the ECHR on the rightto a fair trial as encompassing the right to remain silent, considered to be intimatelylinked to the principle ofpresumption of innocence. As a result, the 2003 European Commission Green Paperon procedural safeguards emphasized that suspects be advised of "any right to silence … of the consequences of making anyconfession and of the weight to be given in any subsequent proceedings to anyanswers he makes."[176]

While the rightto remain silent under police questioning is generally understood to apply in Francebecause of European Court of Human Rights jurisprudence,it is not explicitly guaranteed in the CCP or the French Constitution.

Notification of the rightto silence for those in police custody was incorporated into the French Code ofCriminal Procedure in 2000. But itwas removed again in 2003 under intense lobbying from law enforcement.[177]Council of Europe Commissioner for Human Rights Gil-Robles criticized Francefor the decision in a 2006 report: "I regard France'sretreat on this point as highly deleterious,since concealing legal rights isnever a good thing."[178] The National Bar Association(Conseil National des Barreaux) also supports the rightof those in police custody to remain silent.[179]

The Constitutional Court has ruled that delayed access to a lawyer ispermissible because police custody is subject to judicial supervision andbecause this deferment "cannot determine the subsequent course of proceedings."[180]Yet police custody constitutes a criticalstage in the criminal investigation.Statements made during policecustody are summarized in anofficial statement, which is admitted into the case file whether signed by thesuspect or not. These statements are often used against defendants at trial.

Confessions are not the "queen of all evidence," as a trial judge explained to Human Rights Watch, and convictions may not rest solely on avowals.[181]Defense lawyers can and do challenge the confessions made by their clients inpolice custody. There is no doubt, however, that incriminatingstatements made in police custody carry significant weight and influence the "innermostconviction" of the judge.

As one lawyer argued, "Anybody is ready to confess toanything after five days. The only limitis that the police can't put so much pressure as to make someone confess toomuch. Not many people resist. A confession that hasn't been retracted-that's almost enough to convict, you just need a bit more. A retracted confession-not enough for a conviction, but it's taken into account along withother evidence."[182]

In contrast to the position in police custody, suspects areinformed of their right to remainsilent in the first hearing with theinvestigating judge. Lawyers we spoke with generally stressed that they advisedtheir clients at this stage to remain silent. But as one lawyer pointed out,the investigating judge will then ask the suspect to confirm what he or shesaid in police custody and "this is dangerous because someone can say yeswithout thinking about it."[183]

More generally, the limitedamount of time lawyers have to meet with clients and to acquaint themselveswith the investigation and the charges against their client places severe restrictions on the lawyer's ability to effectivelydefend his or her client at a criticalstage in the proceedings. Lawyers have no access to the case file until a shorttime, normally three or four hours, before the first hearingwith the investigating judge. As one lawyer explained, "You don't have time tostudy anything but your client's interrogations. You don't have the time tolook at the interrogations of the other people arrested at the same time."[184]

Ill-treatment inCustody

Prompt and meaningful access to a lawyer during police custody is a fundamental safeguardagainst torture and prohibited ill-treatment. A half-hour meeting with a lawyerthree days after arrest is an insufficient safeguard against such treatment.The presence of a lawyer from the very outset of detention and during all questioning is a far more effectiveprotection.

French law provides for medical examinations of detainees inpolice custody, another safeguard. Under the specific regime for terrorism suspects, detainees may request a medical examat any time, and judicial officials may order it on their own authority.[185]If detention is extended beyond 96 hours, the exam becomes automatic andobligatory.[186]The primary mission of the forensicdoctor is to certify that the detainee's state of health is compatible withcontinuing police custody.[187]

Our research suggests that the rightto access to a medical examination is generally respected and we did not gatherevidence of systematic problems. The CPT has commended France for progress in ensuring this right,while noting in successive reports continuing problems such as superficialexaminations, failure to record injuries,and lack of respect for confidentiality.[188]A few of the cases of alleged abuse in French custody discussed below raise serious concerns, however. Emmanuel Nieto, forexample, was examined by the medical doctor in his cell in the presence ofpolice officers.[189]Abdellah Kinai told us, "When the doctor saw what terribleshape I was in, he said he couldn't do anything for me, he didn't even examineme." Kinai said he had never seen any medical report.[190]The CPT has repeatedly recommended that detainees in police custody have the right to request a second examination by a doctor oftheir own choosing.[191]

The European Court of Human Rights has consistentlyunderlined the vulnerability of individuals in police custody to abuse at thehand of state officials, and the duty of authoritiesto protect them from torture and prohibited ill-treatment. In at least threecases involving abuse of detainees in police custody, the Court has foundFrance in violation of article 3 of the European Convention on Human Rightsprohibiting torture or cruel, inhuman or degrading treatment or punishment.[192]In all of these cases, one of which involved a French citizen accused ofparticipating in a terrorist attackin Corsica, the Court has stressed theabsolute nature of the prohibition under article 3 so that,

The requirements of the investigation and the undeniabledifficulties inherent in the fight against crime,particularly with regard to terrorism,cannot result in limits being placedon the protection to be afforded in respect of the physical integrity of individuals.[193]

In a report based on a visit in May 2000, the CPT criticized conditions of detention in police custody.The CPT interviewed two men who had recently been held in police custody forfour days on suspicion of involvement in terrorism.Both complained that they had been interrogated day and night, and this wascorroborated by police records. The CPT also verifiedthat the counterterrorist police in charge of the interrogations hadgiven explicit instructions in one man's case to withhold a blanket and leavethe cell light on at all times.[194]

Human Rights Watch spoke with, or obtained the testimoniesof, 13 terrorism suspects subjectedto relentless, oppressive questioning and in some cases psychological andphysical ill-treatment. Interrogations can take place at any time of the day ornight, and there are no rules about the amount of rest a detainee must havebetween sessions. We heard of sleep deprivation,disorientation, constant, repetitivequestioning, and psychological pressure. A pattern of extended questioning andsleep deprivation was corroboratedby the details in five police reports examined by Human Rights Watch. Thesereports must list the beginning and end of every interrogation.

Abdel N., who has been held in police custody four times onsuspicion of terrorism, said, "It's worsethan prison. We're mistreated thewhole time. You don't know if it's day or night. They do it on purpose to breakyou down. By the third day you'll say no matter what."[195]

Over a four-day period,Emmanuel Nieto was questioned for a total of over 45 hours in 13 differentsessions. These included a sessionfrom 11:30 p.m. to 4:20 a.m. his second night in custody, and from 11 p.m. to2:15 a.m. and 3:30 a.m. to 5 a.m. his third night.[196]While in police custody, the longest amount of rest Nieto had between sessionswas five hours; the shortest was an hour and fifteen minutes, in the middle ofthe night. Bachir Ghoumid, one of the defendants in a trialof alleged members of the MoroccanIslamic Combatant Group (GICM, its French acronym) accused of participation inthe planning of the 2003 Casablanca bombings said at trialthat he had been subjected to 40 hours of questioning duringhis four-day police custody.[197] (Forty-five people, including12 suicide bombers, died in simultaneous attacks in Casablance on May 16,2003.)

Mohammed Y. was interrogated 17 different times for a totalof 34 hours during his four days inpolice custody.[198]Saliha Lebik endured 13 interrogations for a total of 30 hours during her four days in police custody in December 2002.[199]Rachida Alam was subjected to 12 interrogations for a total of over 25 hours during the three days she spent in police custody inMay 2004, including sessions in themiddle of the night.[200]

Everyone we spoke with recounted extreme psychologicalpressure while in police custody. Some mentioned specific threats. RedouaneAberbri, one of the defendants inthe GICM trial along with BachirGhoumid, says that when the investigating judge visited him before extendinghis time in police custody, he complained about being handcuffed to a chair andthe sleep deprivation. "He didn'twant to take it into consideration. He threatened me saying that I still hadtwo more days to talk since I hadn't yet said much, or else he'd send me as a'gift package to the Moroccans who have different ways of doing things.' Whatcould I say?[201]Human Rights Watch was unable to get a response from the investigating judgeabout this allegation.[202]Another recounted how an officertold him, "'You're lucky we're in France or I'd put a bullet in yourhead.' You could feel the hatred against Muslims."[203]

We also learned of four disturbing accounts of physicalviolence and ill-treatment.

Emmanuel Nieto spent four days in police custody in Orleans being interrogated by officerswho told him they were from Paris. He said the abusestarted during the firstinterrogation after he was taken to the police station:

There were four or five of them in the room, one really bigguy who was there to make an impression on me, to scare me. Then there werejust two. One of them sat at the typing machine and laughed while the other onewalked around me and hit me on the head or in the stomach if I didn't answer.He pulled on my ears, hit me in the head. He made me sit on the floor like adog and he sat over me looking down and hit me on the top of my head. The wholetime was like that. Once I took a big blow to the ear, my ear rang.

Nieto describedbeing handcuffed behind the back, grabbed by the throat and pushed up againstthe wall, and forced to kneel for long periods.He was forced to kneel with his hands shackled behind his back, with his feetin a particular position or the officerwould come and press down on his legs with his foot until he signed his formalstatement. "One man held one hand behind my back and I signed with the other. Apolice officer turned the pages. Ididn't have the concentration to read it."

According to police records, Nieto was examined twice by adoctor, though he could only rememberone visit.[204]He told us the examination took place in his cell in the presence of police officers. He only complained to the doctor about thehandcuffs. "I was so tired, and then it's the French system, I wasn't surprised. When they don't have the proof they have todo everything to make you talk … I'm not someone who complains … For us Muslimsit's not this life that matters, it's what comes after." The two doctors'certificates do not attest to any physical tracesof ill-treatment.[205]

Lahouari Mahamediwas arrested early in the morning of April22, 2003. He spent four days in police custody. He lodged a criminal complaint alleging he was beaten after themedical examination and that he was denied a second examination he requested.He reported this to the investigating judge. An examination conducted on April 26, 2003, in Fresnes prison,where he had been remanded into pretrialdetention, revealed several areas of localized swelling filled with blood(hematomas) and a bruise (contusion) on his temple. His wife, Virginie Geneix,who was held in police custody for four days as well, said she saw him at onepoint in his cell, with blood on his head.[206]

Mahamedi's lawyer lodged a complaint against four DST officers and one cell guard on April 5, 2006. An investigating judge was assigned toinvestigate the allegation, and apparently took testimony from some of the officers who interrogated Mahamedi, but as of theend of May 2008, no significant progress had been made in the investigation.[207]

Abdellah Kinai, 54 years old at the time of his arrest, sayshe was repeatedly beaten in police custody following his arrest in May 1998:

There were six of them hitting me, while the others heldme, their captain hit me in the eyes with my big watch, saying do you use thisto make bombs? Confess! Confess! Confess! They made me sleep on the cementfloor, and hit me with their feet and fists, I was exhausted, hadn't slept,hadn't eaten, and hadn't washed, no stop to the interrogations. And then theyasked me to sign declarations I hadn't made, with threats …

I could barely see, my eyes were swollen from all the hits… I asked to see a doctor at the beginning, they refused, then a doctor came,when he saw my state he said, "I can't do anything for you," and he left. I was transferred to La Santé prison after 5 days in a lamentable state, the prison doctor was at my bedside for three days …

I'm just an old Muslim who wants to practicehis religion in peace. I'm exiled, without my family, old and sick, I didn't doanything to anyone.[208]

Kinai claims the forensic doctor did not examine him, that henever saw a medical certificate, and that his court-appointed lawyerrecommended against bringing suitfor ill-treatment because it could prejudice his case.

Tlili Lazhar was arrested in Marseillesin October 2002, and convicted inDecember 2004 of participation inthe plot to bomb the Christmasmarket in Strasbourg.He was extradited to Italyin connection with an Italian terrorisminvestigation in November 2006. Hetold Italian investigators he had been abused in police custody in France:

When I was arrested in Marseilles, I spent five days without beingable to talk to my lawyer … In those first four days I was hit during the interrogations. In particular, during the interrogations conducted by the DST in Paris.These interrogations always took place with me sitting on a chair with my handstied behind my back and tied to the chair. Duringthese interrogations the head of the police in Parishit me. The first time, I was hit three or four times really hard, and thenfive or 6 punches in the face, and the beatings came whenever I didn't givethem the answer they wanted. On that first occasion I bled from my mouth and Istayed with my face covered in blood until I was taken back to my cell … Thesecond time, I was hit and punched duringthe interrogation, always by the head of the DST in Paris… The third time I was hit by the same person while he interrogated me …[209]

The Italian investigating judge Guido Salvini noted that "theseinterrogations were interrupted to allow a doctor to certify that the detainee'shealth was compatible with the ongoingarrest measure" and concluded that "[i]fconfirmed, the behavior denounced by Tlili … would not only be contrary tohuman rights principlesas well as counterproductive in anethical sense to the fight against terrorism,but would certainly constitute a crimeaccording to the criminal code ofany European country."[210]

In May 2007, the Milan Prosecutor's Office asked the ItalianJustice Ministry to forward a noteto French authorities reportingLazhar's allegations of ill-treatment so the French prosecutor's office could evaluate whether to open a criminal investigation. In January 2008 the Parisprosecutor's office informed theirItalian counterparts that thestatute of limitations (three yearsin these cases) had expired and no public action was possible.[211]

The CPT has repeatedly recommended that persons taken intocustody in Francehave access to a lawyer from the outset of detention, that the lawyer bepresent for all police interrogations, and that no time limitbe set on lawyer-detainee consultations. Indeed, while the CPT acknowledgesthat it may be necessary, for as briefa period as possible, to deny adetainee the right to a lawyer ofhis or her own choosing, the Committee concludedthat "it is difficult to conceive of a convincing argument capable ofjustifying the total refusal of the rightof access to a lawyer for three days."[212]

A law adopted on October 30, 2007, created an independentmonitoring body for all places ofdetention in France:the "General Inspector of Places of Deprivationof Liberty." This body complies with the requirements of the Optional Protocolto the Convention Against Torture, which France has signed but not yetratified.[213]The new monitoring body, which atthis writing was not yet operational,will have the authority to visit,among other places of detention, all facilities used for police custody, andconduct private interviews with anydetainee.[214]Access may be denied for seriousreasons relating to national defense, public security,or "serious troubles" in the placeof detention.[215]

VI. Impact on Muslim Communities inFrance

The fight against terrorismis also and perhaps above all a long-term battle of ideas.

-Nicolas Sarkozy, then interiorminister[216]

It's normal that they want to protect their country, butit's the way they do it! You have to avoid injustice. And then there are theassumptions, like being a Muslim means being a militant.

-Bilal M., man who served a six-month prison sentence for criminalassociation in relation to a terroristundertaking[217]

The fight against Islamist or international terrorism has targeted a defined, if large and diversecommunity-Muslims-in a way that the fight against other types of terrorism never have. Franceis home to anywhere between three and five million Muslims, up to an estimated10 percent of the overall population and the largest Muslim population in Western Europe. Perhaps half to three-fifths are Frenchcitizens, while the rest are nationals of other countries(though they may have lived in Francefor decades or even their entirelives).

A 2006 French government white paper on domestic security against terrorismaffirmed the government's commitment "never [t0] compromise the fundamentalvalues of the rule of law" in the fight against terrorism,to reject any conflation of Islam with terrorism,and to pursue a communications policy designed to "build a wide consensus,integrating first and foremost the fractionof the population the terroristsclaim to speak for …"[218]

Excesses in the name of preventing terrorism,even if this fight is framed within the criminaljustice system, are likely to be counterproductiveas they alienate entire Muslim communities rather than isolate the extremistsfrom those broader communities.

The broad scope for arrest and remand to pretrial detention under the charge of criminal association in relation to a terrorist undertaking, as well as ill-treatment andreligious-based harassment in police custody, fuel a perception among Muslimsthat all Muslims are suspect in the eyes of French authorities.Interrogations of terrorism suspectsin police custody often includequestions about religious beliefs and practices.[219]Women who wear a religious headdress are invariablyasked why; men are asked their views on women's equality.

Abusive and discriminatorymeasures can actually serve to radicalize individuals already vulnerable, forwhatever personal, socioeconomic, or political reasons, to extremist views. Onecounterterrorismofficial acknowledged this risk,recalling,

There was one guy who was arrested because he was insomeone's address book. I had the opportunity to talk with him during his four days in police custody. He worked in agarage. [After the arrest] he lost his job, he lost his girlfriend. He was diminished in his mother's eyes because he brought shameon the family when the police came to arrest him. If he wasn't a terrorist before, that experienceradicalized him. If before he went to Bosniato act the big guy, now he'll be willing to go to Iraq. And it will be our fault.[220]

Several lawyers also told Human Rights Watch they had seenclients become more and more alienated and vulnerable to radicalism after timein pretrial detention, while formerdetainees and their spouses talked also about the effects on children.

Salima Benmessahel, the wife of a man who spent three yearsin pretrial detention before beingsentenced to exactly three years in prisonon what she views as trumped-up terrorismcharges, told us, "I can see how these guys convictedof terrorism who didn't do anythingget out of prison and want to goblow themselves up. They go in normal and come out enraged." She told of thetime her five-year-old son wanted to keep all the car windows rolled up despitethe heat of the day because he was worriedthat if the police heard them listening to the Koran on tape "they'd send us toprison too." Two years afterBenmessahel's husband was released from prisonin March 2005, French authoritiesrescinded his acquired French citizenship and expelled him in April 2007 to Algeria.[221]

During the firstof Abdul N.'s four arrests on suspicion of terrorism,he spent four months in pretrialdetention and was then acquitted at trial.The second time he spent six and a half months awaiting trialand was then convicted of dealing instolen merchandise without any connection to a terrorismoffense. The third time he was placed under judicial supervision until thecharges were dropped. The last time he was arrested was June 2006. On thatoccasion, his wife was also arrested and spent one day in police custody withher two-month-old baby. Abdul N. spent nine-and-a-half months in pretrial detention before being released under judicialsupervision. He is currently awaiting trial."Every time they arrest me, they say, 'we know you're not a bad guy, but youknow lots of people.'"

Abdul N. says he wants to leave France, for his own sake and thatof his six children. "My children are paying the price.My oldest son, he's sick of France.He doesn't want to go to school anymore. He's really disoriented,he lived through all the arrests."[222]

One man who was arrested and held for twenty-four hoursbefore being released without charge said, "It's not so much the police custody… it's the manipulation in the name of the fight against terrorism. They could have just called me in, I wouldhave gone, why put on such a spectacle? They violate our principles but it's accepted in order to defend the rights of some. They're not going to avoid problemsby harassing people, that's going to stir up rancor and hatred-that's what I'm afraid of."[223]

Abusive securitymeasures that disproportionately affect Muslims are likely to undermineconfidence in law enforcement and securityforces among the very communities whose cooperation is criticalin the fight against terrorism.Successful policing, and preventing and prosecuting terrorism,require public cooperation and in particular tip-offs about suspiciousactivity. Neighbors, acquaintances, and family membersare far less likely to report concerns if they lack confidence that authorities will act justly.

Detailed Recommendations

To the Government of France

The president,the minister of justice, and othersenior government officials should publicly and unequivocally affirm thattorture and cruel, inhuman, or degrading treatment is unacceptable, both in France and elsewhere, and that informationobtained under torture and prohibited ill-treatment must not be used at anystage 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 legalprecision under international human rightslaw. 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 toensure the full range of fair trialstandards under the European Convention on Human Rights. In particular, thesereforms 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 rightto an effective defense

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

○See a lawyer from the outset of detention andthroughout the period of detention;

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

○Be questioned by the police only in the presenceof a lawyer;

○Be notified of their rightto remain silent.

·During the judicial investigation phase:

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

○Ensure that the Investigative Chamber exerciseeffective supervision over the work of the investigating judge. All appealsagainst decisions by the investigating judge refusing to take an investigativestep 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 asmanifestly unfounded;

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

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

Prevent unjustified lengthy pretrialdetention

• 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 ofJustice should take the lead in proposing legislative reforms to bring Francefully into line with its international obligations under the Convention AgainstTorture:

Guarantee that torture evidence is not introduced intolegal 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 inpolice custody

The Code of CriminalProcedure 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 Deprivationof Liberty(Controleur General des lieux de privationde liberte)

·Prioritize spontaneous, unannounced visits toplaces of police detention, includingthose where terrorism suspects arebeing held, to inspect conditions and speak with detainees in private about treatment;

·Publicize any instance of denial of access onthe basis of security concerns witha view to limiting these instances;

·Advocate for the legislative and policy reformsnecessary to improve safeguards against prohibited ill-treatment in policecustody.

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 countering 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 practices, 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.

Acknowledgements

Judith Sunderland,researcher with the Europe and Central Asia Division of Human Rights Watch,wrote this report based on research conducted in France between July 2007 andFebruary 2008. The report was edited by Ben Ward,associate director in the Europe and CentralAsia Division. Aisling Reidy, senior legal advisor, provided legal review, and Ian Gorvin, senior program officer,provided program review. The report was also reviewed by Joanne Mariner, directorof the Terrorism and Counterterrorism Program, and Veronika Szente Goldston, advocacy director in the Europeand Central Asia Division. Delphine Dogot, intern in the Parisoffice of Human Rights Watch, providedinvaluable research assistance. Production assistance was provided by IwonaZielinska, associate in the Europe and CentralAsia Division; Andrea Holley,publications director; and Fitzroy Hepkins,mail manager.

Human Rights Watch gratefully acknowledges the assistanceprovided by the Collectif contre l'Islamophobie, the Ligue des Droits del'Homme, and the Syndicat de la Magistrature. Antoine Garapon, executivedirector of the Institut des Hauts Etudes sur la Justice, provided invaluableadvice. Many defense lawyers gavegenerously of their limited time todiscuss their clients' cases and provide insight on questions of law. Weappreciate the willingness of judges and government officials to speak with usin the course of this research. Finally, we acknowledge the individualsarrested in connection with terrorismcharges and their family members whoagreed to speak with us and share their experiences.

Human Rights Watch is grateful for the generous financialsupport of the Third Millennium Foundation.