I. Executive Summary

Since the mid-1980s, when it suffered a wave of terrorist attacks, France has refined a preemptive criminal justice approach to countering terrorism, which many of its officials regard as a model worthy of emulationelsewhere. France’s approach is characterized by the aggressive prosecution ofalleged terrorist networks operating on French territory. It is founded onclose cooperation between specialized prosecutors and investigating judges andthe 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 in relation to a terrorist undertaking” (associationde malfaiteurs en relation avec une entreprise terroriste, hereafter“association de malfaiteurs”). Established as a separate offense in 1996, itallows the authorities to intervene with the aim of preventing terrorism well before the commission of a crime. No specific terrorist act need be planned, much lessexecuted, to give rise to the offense. Intended to criminalize all preparatoryacts short of direct complicity in a terrorist plot, an association demalfaiteurs charge may be leveled for providing any kind of logistical orfinancial support to, or associating in a sustained fashion with, groupsallegedly formed with the ultimate goal of engaging in terrorist activity.

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

Human Rights Watch is convinced that effective use of the criminal justice system is the best way to counter terrorism. But too much flexibility in thesystem will stretch the rule of law to the breaking point. France’s duty to protect its population from acts of terrorism is matched by its obligations underEuropean and international human rights law to ensure that measures taken to counter terrorism are compatible with coexisting human rights protections, including the rights of those deemed to pose a threat.

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

Once arrested, terrorism suspects may be held in policecustody for four days, and in certain circumstances up to six days, beforebeing brought before a judge to be placed under judicial investigation orreleased 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 be subjected to oppressive questioning, at any timeof the day or night, without a lawyer present. Police are under no obligationto inform suspects of their right to remain silent.

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

Once the suspect is brought before a judge, minimal evidenceof relation to an alleged terrorist network is usually sufficient to remand asuspect into pretrial detention for months or in some cases years. A reformintroduced 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 or lack sufficient information and time to goagainst the wishes of the investigating judge or prosecutor.

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

The use of evidence obtained from third countries where torture and ill-treatment are routine raises particular concerns, including about the nature of cooperation between intelligence services in France and those countries. Some defendants in France who credibly allege they were tortured inthird countries into confessing have successfully had the confessions excluded as 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 material for 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 convictions based on weak orcircumstantial evidence. As long as there is evidence that a number ofindividuals know each other, are in regular contact, and share religious andpolitical convictions, there is considerable room for classifying a wide rangeof acts, by even the most peripheral character, as the “material actions” demonstrating participation in a terrorist undertaking.

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

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

Key Recommendations

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

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

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

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

· Strengthen the role and independence of liberty andcustody judges by ensuring continuous training and continuity in theircase-load;

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

II. Background

The French counterterrorism model has developed over decades of experiences of domestic, binational, and transnational terrorism. Like other Europeancountries, France has a history of internal violence and terrorist acts by extreme left-wing groups (for example, Action Directe) and regional separatistgroups advocating independence or greater autonomy in the Basque country, Brittany, and Corsica.[1]

The brutal eight-year war that led to Algeria’s independence from France in 1962 was distinguished by extraordinary savagery, including widespread violence against civilians and terrorist bombings in Algeria, as well as widespread torture by French forces. It was in the mid-1980s, however, that France experienced a new form of “de-territorialized” terrorism.[2]Over a dozen attacks in Paris in 1986 on department stores, trains, subways,and public buildings claimed 11 lives and injured over 220 people. A previouslyunknown group called the Committee for Solidarity with Near Eastern Political Prisoners took responsibility for the strikes. In 1995 another wave of attacks between July andSeptember—including a bomb at the Saint Michel subway station in Paris—killed 10 and injured over 150 people. French authorities attributed the attacks to the Algerian Armed Islamic Groups (Groupes Islamiques Armees, GIA).

In response to the threat of international terrorism, France adopted a preemptive approach characterized by an emphasis on intelligence-gathering; aggressive prosecution to dismantle terrorist networks in formation; and removals offoreign terrorism suspects and those accused of fomenting radicalization andrecruitment to terrorism.[3]Indeed, by the time the fight against Islamist terrorism had become aninternational priority following the September 11, 2001 attacks in the United States, France already had in place perhaps the most developed counterterrorism machinery in Europe.

France is one of only a few Western nations that haveprosecuted its citizens or residents formerly held in US military detention at Guantanamo Bay. Seven French citizens were repatriated to France in 2004 and 2005, afterspending from two to three years in US military custody. While one was releasedimmediately, six were charged with criminal association in relation to a terrorist undertaking for “integrating terrorist structures” in Afghanistan. These men spent betweenone and one-and-a-half years awaiting trial in France. In December 2007 the 16^th Chamber of the Paris Correctional Court convicted five of the menand sentenced them each to one year in prison. All free at the time of theverdict, they remained at liberty due to time already served in pretrial detention. The sixth man was acquitted.

French Criminal Justice System

The criminal justice system in France is based on theinquisitorial approach, in which the Office of the Public Prosecutor opens ajudicial investigation of a criminal offense but can ask an investigating judge(juge d’instruction) to oversee the investigation with the help ofpolice assigned to him or her for that purpose. The investigating judge issupposed to be an impartial arbiter who seeks to establish the truth, and isentrusted with uncovering both incriminating and exculpatory evidence. He orshe can order arrests and wire taps, issue warrants and orders to appear as awitness or produce documents instead, and require the police to conduct anylawful inspection. Prosecutors, defendants, and any civil parties to a criminal case may ask the investigating judge to order particular inquiries, which the judge mayauthorize or deny.[4]These decisions may be appealed to the higher Investigative Chamber (Chambred’Instruction).

In theory, the investigating judge is an impartial arbiterwho searches for all relevant evidence, including information that could helpthe defense.[5]In practice, investigating judges are often accused of working more to build asolid case against the accused than trying to seek “the truth.”

There are also concerns that there are insufficient checkson their power, to the detriment of the rights of the accused. In 2006 aspecial parliamentary committee investigating the so-called “Outreau Affair,”which saw 13 people falsely accused of pedophilia, went so far as to considerthe suggestion that France should abandon the inquisitorial procedure in favorof the adversarial system used in common law jurisdictions such as the UnitedKingdom and the United States.[6]The committee recommended that investigating judges work on cases in “colleges”of three to avoid miscarriages of justice. A March 2007 law implemented thisrecommendation.[7]

In ordinary criminal cases in France, police may arrest andhold suspects for up to 24 hours, with the possibility of one 24-hourextension, before either releasing them or bringing them before theinvestigating judge (premiere comparution). Detainees have the right to see a lawyer at the outset of detention. The right to see a lawyer while in policecustody was instituted only in 1993. Longer periods of police custody withdelayed and limited access to a lawyer are permitted for a number of serious offenses, including drug-trafficking, organized crime, and terrorism (for the latter, seeChapter V, Police Custody in Terrorism Cases).

When a suspect is brought before an investigating judge, thejudge can either order the person released without charge or place him or herunder formal investigation (known as judicial examination,mettre en examen)if there is “strong and concordant evidence making it probable that [the suspect]may have participated, as perpetrator or accomplice, in the commission of theoffenses he is investigating.”[8]The judge may then recommend to the prosecutor that the detainee be remandedinto pretrial detention (detention provisoire).

A separate judge, known as the liberty and custody judge (jugedes libertes et de la detention), makes the decision. The investigatingjudge prepares the committal proceedings, containing the state’s case againstthe accused, and then transfers it to the prosecutor who will represent thestate’s interests in the case before the appropriate trial chamber.

France operates a system of “free proof” in which an offense“may be proved by any mode of evidence.”[9] The only two restrictions are that the evidence must be obtained in a legal fashion and subject to debate at anadversarial hearing.

Minor felonies (delits)—punishable by up to 10 yearsin prison—are tried by three-judge panels in Correctional Court (Tribunal Correctionnel). Serious felonies (crimes) are tried by a nine-member jury and three judges in the Court of Assize (Cour d’Assise). Rulings by the Correctional Court may be appealed to the regional Court of appeal (Cour d’Appel),and then to the Court of Cassation (Cour de Cassation), the highestjudicial body. Rulings by the Court of Assize may be appealed to anotherchamber of the Court of Assize, with a 12-member jury and three judges, andthen to the Court of Cassation. The Court of Cassation reviews points of lawonly.

III. Counterterrorism Laws and Procedures in France

The Judicial PreemptiveApproach

Over the past 30 years France has relied primarily on the c riminal justice system to combat terrorism. In 1981 the government ofPresident François Mitterrand abolished the State Security Court, a special tribunal that had tried all national security cases since 1963. The court, composed of threecivilian judges and two military officers, had conducted its proceedings in secret with no right of appeal. The year after it was abolished, the French parliament modifiedthe Code of Criminal Procedure to enshrine the principle that in times ofpeace, crimes against the “fundamental interests of the nation” are to be dealtwith in the ordinary criminal justice system.[10]

Although the French preemptive approach is grounded in theordinary justice system, terrorism investigations and prosecutions are subjectto exceptional procedures, and managed by specialized prosecutors and judges.Since the mid-1980s all terrorism cases have been centralized in Paris among specialized prosecutors and investigating judges who work in close cooperationwith national intelligence services.

The basic counterterrorism statute, adopted in 1986,fashioned the centralized judicial system for terrorism-related offenses thattoday defines the French model. Law 86-1020 of September 9, 1986, created aspecialized corps of investigating judges and prosecutors based in Paris—the Central Counterterrorism Department of the Prosecution Service, otherwise known as the “14^thsection”—to handle all terrorism cases. The 1986 law also instituted trials by panels of professional judges for serious terrorism-related felonies in the Court of Assizein Paris, an exception to the rule of trial by jury in these courts.[11]The law extended maximum police custody to 96 hours (four days) in terrorism-related cases.[12]

The centerpiece of the French judicial counterterrorism approach is the broadly defined charge of “criminal association in relation toa terrorist undertaking” (association de malfaiteurs en relation avec uneentreprise terroriste). The charge, introduced by Law 96-647 of July 22,1996, gives the authorities the ability to take preemptive action well beforethe commission of a crime.

The vast majority of terrorism suspects are detained andprosecuted on this charge. According to government statistics, 300 of the 358individuals in prison for terrorism offenses in September 2005—both convicted and those awaiting trial—had been charged with association de malfaiteurs in relation toa terrorist undertaking.[13]

As Christophe Chaboud, the head of the special anti-terrorism unit of the Ministry of Interior stated in mid-October 2005, “Our strategy is one ofpreventive judicial neutralization. The anti-terrorism laws … put in place in1986 and 1996 are our strength. We have created the tools to neutralizeoperational groups before they pass to action.”[14]

The offense is defined as “the participation in any groupformed or association established with a view to the preparation, marked by oneor more material actions, of any of the acts of terrorism provided for underthe previous articles.”[15]In most cases, this charge is a minor felony offense tried in the Correctional Court, and is punishable by up to 10 years in prison. A 2006 law made theoffense a serious felony punishable by up to 20 years in prison when the cr iminal association was formed with the purpose of preparing attacks on lifeand physical integrity, as well as abduction, unlawful detention, and hijackingof planes, vessels, or any other means of transport.[16]The punishment for being the leader of such a criminal association was raisedfrom 20 to 30 years.[17]

The2006 law, which was enacted in response to the July 7, 2005 bombings in London, also increased the maximum period of police custody in terrorism cases to six daysunder certain conditions.[18]

Four other major pieces of legislation adopted since 2001further reinforced counterterrorism measures. These laws broadened policepowers to conduct vehicle and building inspections, imposed data retention anddisclosure obligations on internet and telecommunications services, required disclosure of encryption codes where necessary in relation to a terrorism investigation, shored up security measures at airports and seaports, increased surveillancemeasures generally, and instituted new measures to fight financing of terrorism.[19]

The Criminal Code also lists a series of offenses that areconsidered acts of terrorism “where they are committed intentionally inconnection with an individual or collective undertaking the purpose of which isseriously to disturb the public order through intimidation or terror.”[20]In addition, any criminal offense is subject to a higher sentence whencommitted in connection with a terrorist purpose. For example, an attack onlife, subject to a maximum prison term of 30 years, may give rise to life in p rison if perpetrated in connection to a terrorist act.[21]

A “flexible” approach

Counterterrorism officials and government authorities cite the lack of a terrorist attack in France since the mid-1990s as proof of thesystem’s effectiveness. The key to this success, according to many, has beenthe willingness and ability to adapt criminal laws and procedures to respond tothe particular exigencies of the fight against international terrorism. In this view, it is precisely the flexibility of the French criminal justice system thathas eliminated the need to resort to extrajudicial or administrative measures in the fight against terrorism.[22]

In an interview with Human Rights Watch, Jean-Louis Bruguière,France’s most famous and controversial counterterrorism judge (now retired),compared the French judicial approach favorably to abuses committed by theUnited States at the Guantanamo Bay detention facility, and by the UnitedKingdom, where foreign terrorism suspects were detained indefinitely withoutcharge from 2001 to 2004 until the highest court ruled the measures 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 procedurallaws are more important than the criminal laws at the base, and the proceduredepends on custom so it doesn’t change easily. The civil law system is moreflexible because it functions according to laws voted by parliament and canreact faster.[24]

Flexibility and adaptability may be critical elements in aneffective counterterrorism strategy, but they must not stretch the rule of lawto breaking point. An appropriate criminal justice approach must be based onfundamental procedural guarantees ensuring the right to a fair trial, which are engaged from the outset of a criminal investigation.

Role of the Investigating Judge in Terrorism Cases

The role and power of the specialized counterterrorism investigating judges—referred to by one analyst as “informed, independent and pitilessadversaries of terrorism in all its forms”—cannot be underestimated.[25]

There are currently seven investigating judges specializedin terrorism cases.[26]Bruguière was the best known among them. He was head of the pool of specialized counterterrorism judges when he stepped down in 2007 after 20 years.[27]During his tenure, Bruguière earned a reputation for uncompromising dedicationto his work. Known by nicknames such as “sheriff” and “the admiral,” Bruguièreclaimed in 2004 he had arrested over 500 people in the previous decade.[28]

The significant authority of the investigating judge in theFrench system is magnified with respect to terrorism cases. The logic is that asecurity-cleared, specialized, and experienced judge will, on the basis of allrelevant information, including sensitive intelligence material, be able to connect the dots: discern the existence of a terrorist network, even where thematerial acts demonstrating this existence are limited to common crimes (for example forgery of identity documents) and determine the identities of the members of the network.[29]

Defense lawyerscomplain, however, that the way in which judicial investigations in terrorism cases are conducted seriously undermines the right of each defendant to an effectivedefense.[30]This right is a cornerstone of the right to a fair trial. The InternationalCovenant on Civil and Political Rights (ICCPR) and the European Convention onHuman Rights (ECHR) stipulate the minimum guarantees necessary to ensure the right to a fair t rial to all persons accused of a criminal offense. These include timely and confidential access to counsel, and adequate time and facilities to prepare thedefense. Another key element is respect for the principle of “equality of arms,”which requires that the prosecution and the defense have equal opportunity toprepare and present their cases, including the obligation on the prosecution todisclose all material information.[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 of Sébastien Bono during his defense of Christian Ganczarski is only slightly extreme: only one of his 24 requests for investigative stepswas accepted (an inquiry commission to Saudi Arabia).[32]Ganczarski is a German national alleged to be a significant al Qaeda figure. Hewas arrested in France in June 2003 after being expelled from Saudi Arabia in what his lawyer called a “disguised extradition.” He faces charges before the Paris Court of Assize for involvement in a 2002 suicide attack on a synagogue in Tunisia that left 21 people dead. Among the 23 motions denied was a request by Ganczarski’s lawyerfor an actual copy, and not just a transcript, of the tape of a conversation onthe morning of the synagogue bombing between Ganczarski and Nizar Naouar, thesuicide bomber who carried out 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 two motions for a joint deposition betweendefendants, and the extradition of an individual from Algeria whose alleged confession is pivotal in the case against his client.

Also denied were requests for the return of a 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 his client,who was still in pretrial detention at the time. Without such authorization, defense attorneys are not allowed to give copies of any elements of the case file totheir clients; they can only show, read or summarize the documents. Theinvestigating judge denied the request on the grounds that there was a risk of his client using the information to pressure others involved in the case.[33]The inability to share the case file with the accused has a negative impact 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 parliamentarycommission that conducted an inquiry into the Outreau Affair recommended thatall suspects under judicial investigation, including those in pretrial detention, have an unrestricted right to their case files.[35] The requests described here are not technically motions for investigative steps.

As noted above, lawyers can appeal against any decisions byan investigative judge to the Investigating Chamber. The president of theChamber has the authority to reject the appeal in a reasoned judgment ortransmit the appeal for examination by the full chamber; this decision cannotbe appealed.[36]All of the motions discussed above were rejected by the president of theChamber.

Unmanageable case files

Defense attorneys argue that the length and complexity ofjudicial investigations in terrorism cases considerably obstruct their abilityto mount an effective defense. As discussed in greater detail below, investigationsinto Islamist terrorism are often protracted, complicated inquiries into alleged networks of like-minded individuals, leading often to voluminous case files tracing the phone calls, travels, meetings, as well as opinions, of a large number of people. According to lawyer Dominique Tricaud, this means case files built on “an idea,a movement, and not on the accused. And then the defense becomes impossible.”[37]Henri de Beauregard, a court-appointed attorney for one of the defendants in amajor terrorism trial involving eight defendants, complained at trial that he had been unable to effectively defend his client:

There are 7.5 meters of case file, 78 volumes … 325 kilosof paper. That represents 541 hours of reading time, in other words three and ahalf months. The lawyer’s fee for Mr. Charouali [his client] is 450 euro. Sowhen you do the math, I have the right to 75 cents per hour to guarantee hisdefense. And I didn’t have two to three months to prepare my case like theprosecutor did, but one-and-a-half months. The defense lawyer cannot do hisjob.[38]

In mid-2007 De Beauregard filed a complaint against Francebefore the European Court of Human Rights for violation of article 6(1)—the right to a fair t rial—and article 6(3)—right to necessary time and facilities to prepare thedefense. At this writing the Court has not made a decision on admissibility ofthe complaint.

While the investigation is ongoing, lawyers may consult thecase file at the Palais de Justice (in cramped conditions), or request paper copiesat the expense of the state. But lawyers complained that even if they were toobtain these copies, they wouldn’t have enough room in their offices for the entire case file in the major terrorism investigations. Lawyers are entitled toreceive a copy of the entire file on CD-rom once the investigative phase iscompleted; because electronic copies allow for conducting keyword searches andcross-referencing information with relative ease, access to an electronic copy atan earlier stage would facilitate proper and timely preparation of the defense.

IV. Criminal Association in Relation to a Terrorist Undertaking

The particularity of the law is that it enables us toprosecute individuals involved in terrorist activity without having toestablish a link between that activity and a specific terrorist project. That's the big difference with the situation abroad where you have to have a linkto a specific project. This text allows us to take action well ahead of thethreat and to move against clandestine support networks or logistical supportfor 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 individuals to know what conduct is prohibited, andgiving too much latitude to law enforcement authorities for arbitrary action. Second,decisions to arrest suspects and place them under formal investigation arebased on a low standard of proof and an approach that favors casting a widenet. Third, there is a presumption in favor of pretrial detention, despitedecisions being taken by a separate “liberty and custody judge,” with suspectssubject to lengthy periods of pretrial detention while judicial authorities pursue complex investigations with multiple suspects. Fourth, the prominent use ofintelligence material in judicial investigations, in the context of the closelinks between judges and the intelligence services, raises concerns aboutprocedural fairness and reliance on evidence obtained from third countries where torture and ill-treatment are routine. Finally, some convictions appear to be basedon 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 orassociation established with a view to the preparation, marked by one or morematerial actions, of any of the acts of terrorism provided for under theprevious articles.”[40]The elements of the crime, as developed in jurisprudence, include: the existence of a group of several people united in a collective criminal purpose; each member must have full awareness of this purpose and the fact that it is a criminal undertaking;and this purpose must be demonstrated through one or more material acts. There is no requirement that any of the participants take concrete steps to implementexecution 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 of legality, enshrined in article 7 of theEuropean Convention on Human Rights, requires that criminal laws be sufficientlyclear and well-defined so that people are able to regulate their conduct toavoid infringement and to limit the scope for creative judicial interpretationby 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 Criminal Code article 421-1—establishing specificacts of terrorism such as murder, kidnapping, and unlawful weapons possessionwhen committed with intent to seriously disturb the public order through intimidation or terror—and article 450-1 that provides a general definition of association demalfaiteurs in relation to any crime. Article 421-2-1 establishing associationde 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 in thiscase.[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 “arbitrary interpretation 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 verifiable plan for the execution of such a plan…. [L]ittle or no effortseems to have been made in the context of the legal prosecutions of the casesthat have been drawn to our attention … to establish precisely which terrorist act, let alone which category of terrorist act, was allegedly being prepared … That failureto 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 jurisprudence establishingan expansive interpretation of association de malfaiteurs remain unchangedsince the FIDH report, and Human Rights Watch research suggests that the chargecontinues to be used to arrest, detain, and even convict on the basis of weakevidence.

Counterterrorism prosecutor Philippe Maitre explained thatthe association de malfaiteurs statute criminalizes the preparatory acts thatare the furthest from the actual commission of a terrorist act. Drawing threeconcentric circles on a piece of paper, Maitre identified the central circle asthe terrorist act, the surrounding circle as direct complicity—acts that immediately and directly contribute to the commission of the crime—and the outer circle as any andall acts, no matter how removed in time and space, that have contributed to a terrorist enterprise. Even if these acts themselves are not crimes, “the mere factof having participated in an enterprise is punishable behavior. When it comesto terrorism the consequences are so serious that any behavior that revolvesaround this objective 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 criminal sanction, and speech andassociation that would normally be protected under international human rights law—no matter how offensive—can be used as evidence of criminal intent.

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 of association, expression, religious freedom,and personal life (articles 8 – 11 of the European Convention on Human Rights).These rights are not absolute and may be subject to lawful interference, butthis interference can be arbitrary where overly broad laws give unduediscretion to authorities or lack adequate safeguards in how that discretion isexercised.[46]

Our research indicates that the interpretation of theassociation de malfaiteurs statute and the conduct of terrorism investigations raise concerns about illegitimate interference with these protected rights, in particular freedom of expression and freedom of association. Unlike investigationsinto violent Basque separatism—with ETA as a structured organization withclearly identifiable goals and tactics—most investigations into allegedIslamist terrorist activity in France are based on mapping of networks ofcontacts. This can lead to the arrest and indictment of family members, friends, neighbors, members of the same mosque, coworkers, or those who frequent aparticular restaurant. Similarly, there appears to be too much scope for criminal action to be undertaken against individuals who share extremist views and may even expresssupport for Jihad, for example, but who have not taken any identifiable stepstoward 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 is contact among a group of people. The judge described a case in 2007 involving a group of six or seven young Muslim men who talked about goingto Iraq to fight. “They would get together, and some of them had contact withsomeone who had actually gone to Iraq. And so you ask yourself if this is anetwork. You wonder if the fact of having these contacts [means] maybe thereare other things behind.”[47] The judge sent most ofthem into pretrial detention, while two or three were placed under judicialsupervision. The judge does not know what has happened with the case and nolonger has the dossier.[48]

A former JLD described the kinds of cases he saw: “YoungFrenchmen from the Maghreb, between 20 and 25 years old, who dreamed of findingan Islamic ideal. Small fry, just these young guys with posters of Bin Laden intheir bedrooms. They were accused above all of going to training campssomewhere, nothing in France, which is already problematic. You send people toprison in counterterrorism matters for very weak reasons. There was usuallysome kind of evidence, but of what? You had numbers in cell phones, trips, intense religiousness, consultation of certain websites …”[49]

Low Standard of Proof behind Decision to Arrest

The goal is to have as many ongoing investigations aspossible to allow for coercive measures like wiretaps and above all it allowsfor putting people in pretrial detention right away. There is this excess,[when] there are no elements, when there is evidence that would be insufficientin ordinary criminal law, but once it’s stamped terrorism, it’s enough to jailsomeone.[50]

—Nicolas Salomon, defense attorney

The expansive interpretation of what can constituteparticipation in a criminal association in relation to a terrorist undertaking translates into a relatively low standard of proof for arrest and the decisionto 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 terrorist network. The strategy of casting a widenet (“coup de filet”) or “kicking the anthill” (“coup de pied dans lafourmilière”) is based on the faith among counterterrorism practitioners, according to sociologist and expert on French counterterrorism intelligence services Laurent Bonelli, in the strategy’s “ability to destabilize thenetworks, and to undermine logistics. And it matters little if a good number ofthe accused are found 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, for example on whether to arrest otherindividuals besides the initial targets of the operation.[52]

In some instances, counterterrorism officials have engagedin spectacular raids, referred to as “rafles” in French.[53]On November 9, 1993, 110 people were questioned and 87 taken into custody onsuspicion of involvement in terrorism, in a police action code-named “OperationChrysanthemum.” Only three people were eventually placed under officialinvestigation.

In November 1994, 93 people were arrested in a single day, thefirst of a series of arrests over the next two years of alleged members of a network in support of Islamist combatants in Algeria. On June 25, 1995, 131 peoplewere arrested in five different cities across France, again on suspicion ofinvolvement in terrorism. Ultimately, 138 people were tried in 1998 forassociation with a terrorist group, referred to in France as the “Chalabinetwork.” The highly controversial trial was held in a prison gymnasium on theoutskirts of Paris because of lack of space in the central court house. Fifty-onepeople were acquitted, in some instances after spending three years in pretrial detention, while 87 were found guilty. Four more were acquitted on appeal. Of those convicted, 39 were given sentences of less than two years, while the four prime defendants, including Mohamed Chalabi, the presumed ringleader, received sentences ranging from six to eightyears.

On May 26, 1998, nearly 80 people were arrested in various European countries in a coordinated operation to prevent what was described as a plot to commit a terrorist attack in France during 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 ofassociation de malfaiteurs. Their prison sentences ranged from four months tofour years.

According to one counterterrorism official, the resort tomass arrests during this period reflected the need for intelligence aboutradical Islamist networks: “[W]e were forced to arrest lots of people just toget more information, which we didn’t have. Sometimes a number in a cell phoneregistry was enough [to warrant an arrest]. It was all to learn more about thenetworks, to get their cell phones and computers. We didn’t have to do thatwith the Basques and the Corsicans [because we already knew enough aboutthem].”[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 intelligenceservice Renseignements Generaux (General Intelligence, RG) confirmed this,recalling an investigation he was ordered to conduct, in the absence ofevidence, that led to three people being arrested. They were released a fewdays later: “There are lots of stories like that—lots of people arrested, itmakes big news but then there’s nothing. I know because I’ve seen it. There arepolitical reasons, interests of circumstance. It’s traumatic for the childrenand for the communities.”[56]

While spectacular raids are now less common, there have beenmore recent exceptions. On June 17, 2003, for example, police officers raided the offices of the Iranian People’s Mojahedin (MKO, an armed Iranian oppositiongroup in exile) and arrested 165 people, including Maryam Radjavi, the wife ofthe group’s leader Massoud Radjavi. Only 17 were eventually placed under formalinvestigation for terrorism-related offenses. On a smaller scale, policearrested 14 alleged members of the Liberation Tigers of Tamil Eelam (LTTE, anarmed separatist group in Sri Lanka) in April 2007 and five others in September 2007 on association de malfaiteurs charges. In February 2007, 14 alleged members of the Kurdistan Workers’ Party (PKK) were arrested in one day. After four days in policecustody and two weeks in pretrial detention, all 14 were released onprovisional liberty. They remain under investigation for criminal association in relation to a terrorist undertaking.

Nowadays, the majority of counterterrorism investigationsare prolonged and involve numerous arrests spread out over a significant amountof time. The investigation and prosecution of the so-called Chechen Network isillustrative. Over sixty people were arrested between 2002 and 2005, including sixteen couples, but only 27 people were eventually 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 during the three days shespent in police custody in May 2004. During this time she had no access to or right to consult with a lawyer. A diabetic, Alam was taken to the detention facility’s hospitalthree times before the doctor finally ordered that she remain there.[58]Of the two women prosecuted, one was convicted, while the other was acquittedafter spending one year in pretrial detention with her infant daughter. Eightof the men in these couples were convicted at trial, one was acquitted, and theremaining seven were not prosecuted in this case.

The Ministry of the Interior statistical office told Human Rights Watch it was unable to provide data on the numbers of arrests for associationde malfaiteurs, the number of individuals placed under judicial examination, orthe number of these who were remanded into pretrial detention.[59]A Europol study indicated that 130 suspected Islamists were arrested in France in 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 Sarkozy said in November 2005 that over 367individuals had been arrested on suspicion of terrorism since the beginning of2002; of these, fewer than 100 had been placed under judicial examination andincarcerated.[62]

Presumption in Favor ofDetention

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

—Antoine Garapon, executive director, Institutdes Hauts Etudes sur la Justice[63]

The crime of association [terrorism] is deduced from proximity to the devil: you are a young Muslim, you shared an apartment with some Salafists,unwisely, you exchanged some letters … The level of proof is weak because it’sabout a presumed intention. The fact of having been close to a Salafist … meansyou might have had the intention of committing a terrorist act, [so] we shouldput you in prison.

—William Bourdon, defense attorney[64]

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

They make decisions about remand into pretrial detention after a suspect’s first hearing with the investigating judge. They also decide onprosecution 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 terrorism cases are centralized in Paris means that the seven JLDs covering Paris are called upon to take decisions concerning custody in all of these cases.

Under French law, pretrial detention can be ordered andextended if deprivation of liberty is considered the only way to preserve material evidence, to prevent either witnesses or victims being pressured or to prevent those underjudicial investigation and their accomplices from agreeing on false testimony;to protect the person under judicial examination; to prevent the person fromabsconding; or to put an end to 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 terrorism cases (the InvestigatingChamber can extend pretrial detention by four months beyond the three-year limit in exceptional circumstances).[67]In serious felony cases, for crimes punishable by over 10 years in prison, pretrial detention is initially imposed for one year, renewable by six-month periods to a maximum of four years in terrorism cases (the Investigating Chamber can furtherextend pretrial detention by two four-month periods beyond the four-year limit in exceptional circumstances).[68]When making an initial decision about whether to impose pretrial detention, and every time detention needs to be renewed, the JLD must hold a hearing with the defendant and the public prosecutor. The first hearing to decide on remand intopretrial detention can only take place if the individual is represented by alawyer. However, subsequent hearings to determine extensions of pretrial detention can proceed whether or not the individual’s lawyer is present, though counselmust be duly informed of any upcoming hearings within a reasonable amount oftime. 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, investigating judges can order a detainee’s release underjudicial supervision or unconditionally at any time, whether in response to anappeal for provisional liberty or of his or her own initiative. Judicialsupervision measures can include: house arrest; limiting movement to a particulargeographic area; a prohibition on meeting certain people or going to certainplaces; the wearing of an electronic tracking bracelet (with the suspect’sconsent); lodging a sum of money with the court as a guarantee; and thesurrender of identification papers, 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 arbitrary detention. 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 Magistrates Syndicate.[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 pretrial detention or renewal ofdetention in the course of an ongoing terrorism 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 written referral. We can read the summary of the facts, thelast two or three volumes of 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 fourdays, precisely in order 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 the case file and not only on the mere criteria for pretrial detention … the JLD was created precisely to add a second pair of eyes tothe procedure, including incriminating and exculpatory elements, and not justto perform a simple juridical verification with respect to the criteria for remanding into detention.”[75] One of the JLDs we spokewith did not immediately recall this reform, and then said the authority to delay the hearing had probably never been exercised by any of the JLDs in the year sinceit 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 and the length and complexity of the terrorism investigations, creates a presumption in favor of detention. All three of the judges wespoke with said there were probably higher rates of pretrial detention in terrorism cases, though none could point to official statistics. One JLD suggested that the libertyand custody judges followed requests for pretrial detention from investigatingjudges 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 terrorism cases. “We’re afraidto let people go free and to make a mistake. I don’t give myself the samefreedom of evaluation that I take in other cases. In ordinary criminal cases, I stick to what the investigators have already found. In terrorism cases, I ask myself, what might they still find?” one explained.[78]

The former JLD quoted above describing “small fry, justthese young guys with posters of Bin Laden in their bedrooms” neverthelessacknowledged the same pressure towards presumption in favor of detention: “Werecognized that it [detention] was partly to scare them. But also it was verydifficult to take the risk of 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 administration of justice system, the same personcan serve in all three roles. JLD are appointed and supervised by the president of the Tribunal de 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’s not about pressure, but this esprit de 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 an investigating judge for pretrial detention in a terrorism case:

It was the case of an Algerian living in Japan, married to a Japanese woman, with two Shintoist children. He was arrested at Roissy [Charlesde Gaulle airport, Paris] en route to Algeria because his telephone number wasin some terrorism suspects’ cell phones. He said it was because these peoplehad come through Japan, and he hosted them … They wanted to put him in pretrial detention but I said no. I said he could be placed under judicial supervision at hissister’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 November 2007. During those three years, hewas prohibited from leaving the Lyon region, had to report to the police everyweek, and was unable to work. At this writing, he is in Algeria waiting for a visa to return to Japan and see his family for the first time inthree-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 concluded their time in police custody. But itis the head of the JLD section who allocates a dossier when it comes torenewals and petitions for provisional liberty. There is no rule or guidelineto ensure that the JLD who first remanded someone into detention will decide onrenewals or release.

Intelligence Material and Torture Evidence

Intelligence material, including information coming fromthird countries, is often at the heart of association de malfaiteursinvestigations. Indeed, most if not all investigations are launched on thebasis of intelligence information. Intelligence material in judicialproceedings has a legitimate role in the effective prosecution of terrorism offenses. But the close relationship between specialist investigative judges and the security services raises concerns about whether judges are approaching such material as 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 routine raises particular concerns, including about the nature of cooperation between the security services in France and those countries. Some defendants in France who credibly allege they were tortured inthird countries into confessing have successfully had the confessions excluded as 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 material for use in French prosecutions raise questions about the willingness of Frenchjudges to turn a blind eye to allegations of abuse.

Judicial cooperationwith the security services

Both domestic and international counterterrorism experts emphasize the cooperation between specialized investigative judges and French security services. One counterterrorism official told Human Rights Watch, “That’s the Frenchdistinctiveness: judges and police officers working together every day. There’sa kind of trust there. The passage between intelligence operation and judicialinvestigation is very easy. The judge is an ally, not an adversary, and that isa big help.”[83]

Investigative judges cooperate closely with the Directoratefor Territorial Surveillance (Direction du Surveillance Territoire, DST) and the General Intelligence. Both agencies are part of the Interior Ministry. The DST is both an intelligence-gathering agency and a judicial police force,which means DST agents can be assigned to assist investigating judges in criminal inquiries. In practice this translates into a continuous exchange of information andjoint strategizing between the investigative judges and the security service agents.[84]

The ease with which sensitive intelligence material is put to use in judicial proceedings without compromising intelligence sources and methodsis the pride of French counterterrorism officials and the apparent envy oftheir counterparts in other countries. The United Kingdom Home Office, forexample, has studied the investigating judge system in France with a specific interest in the way intelligence material is introduced as evidence.[85]The specialized investigating judge, with his or her expertise, training, andsecurity clearance, is the designated filter of all intelligence information.Not only can unsourced intelligence reports be entered into the case file (andsubsequently 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 September and early October2005 of individuals allegedly plotting terrorist attacks on the Paris underground metro system, the headquarters of the DST, and/or a Paris airport isillustrative, and appear to be have been based largely, if not entirely, onstatements allegedly made by a man named M’hamed Benyamina while in the custodyof the Algerian secret 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 the airport in Oran, Algeria, on September 9, 2005, as he was preparing to return to France. Benyamina told Amnesty International that Algerian security officers had told him French authorities requested his arrest. A February 2006 article inthe French daily newspaperLe Figaro raising concerns that France had “delivered” a suspected Islamist to Algeria to make him talk under torture, cited twoanonymous police sources acknowledging this French connection, while anothersource close to the case insisted that Algiers had its own reasons for beinginterested in Benyamina.[86]

Benyamina was held in DRS custody for at least five months,during which his family had no information about his whereabouts and he was notunder judicial examination in either France or Algeria, making this a case ofenforced disappearance. Benyamina said he was detained in a small, dirty cellwith no window or electricity, that he saw no one but his interrogators for theentire five months, and was allowed 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 Algerian authorities, he was placed in pretrial detention on charges of membership in an international terrorist organization. The United Nations Working Group on Arbitrary Detention has classifiedBenyamina’s five months in DRS custody as illegal, arbitrary detention.[88]

Benyamina told Amnesty International that he did not want totalk about treatment in DRS detention as long as he remains in Algeria, for fear of reprisals.[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 terrorism suspects in incommunicado detention, with no access to a lawyer, where they are at particular risk of torture andill-treatment.[90]

Emmanuel Nieto and Stéphane Hadoux were arrested in France in early October 2005 on the basis of Benyamina’s statements in DRS custody. Bothclaim they were subjected to physical and psychological abuse during police custody (see Chapter V for a detailed account of Nieto’s experience). According totheir lawyer, Benyamina subsequently exonerated Nieto and Hadoux in officialjudicial statements transferred to the French investigating judge in September 2006. It was on the basis of this exoneration that the lawyer secured their release underjudicial supervision in January 2007, after over one year in pretrial detention.[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 in this case have requested Benyamina’sextradition from Algeria in order to cross-examine him; these requests havebeen denied. And while agents of intelligence services may be required totestify at trial—and can do so in a way that protects their identity—theycannot be obligated to reveal their sources. The UK Home Office study citedabove concluded that while “the inability to probe or question the material underpinning the intelligence reports has never been challenged in France,” in the UK“[d]enying the defence the opportunity to respond to potentially significantparts of the prosecution case would … have article 6 implications,” referring to the article of the European Convention on Human Rights guaranteeing fair trial rights.

Former investigating judge Bruguière explained that the integrationof intelligence information into judicial investigations is key to the fightagainst terrorism, and held up the French approach as an effective model.“There’s no problem with disclosure or admissibility of evidence,” he said.Bruguière stressed, however, as did counterterrorism prosecutor Maitre, that noone would ever be convicted in France on the basis of intelligence informationalone. Rather, Bruguière explained, the information “allows for orienting the investigation toward material elements. The intelligence information must becorroborated by other elements.”[92]This essentially means that the investigating judge will take informationgathered by intelligence-gathering methodology, outside the scope of a criminal investigation and related judicial oversight, and “judicialize” it by ordering investigative steps to find corroborative evidence. As Garapon indicates, the investigatingjudge plays a role of “interface” between intelligence and prosecution becausethe judicial investigation phase allows him to turn “useful intelligenceinformation into a perfectly valid and transparent element of proof.”[93]

In a 2007 report on democratic oversight of security services, the European Commission for Democracy through Law (known as the Venice Commission,a body of the Council of Europe) warned that relying on control over security services by specialized judges as a form of oversight carries risks, including over-identification with security officials and a loss of the independence and externalperspective necessary for proper accountability. The report cites France and Spain as examples of this approach and cautions that “[t]he necessary awareness of thesuspect’s rights may gradually be lost over the years spent in the isolatedworld of security intelligence.”[94]

Up until very recently, France was among a small handful ofWestern democracies without any mechanism in place for parliamentary oversightof its intelligence services. An October 2007 law created a special ad hocparliamentary “delegation” composed of four representatives from each chamberof parliament.[95]The delegation, whose hearings will always be closed to the public and whosework is covered by national security, can formulate recommendations to the prime minister and the president. The delegation officially began its work in February 2008.

Use of torture evidence

One of the greatest concerns arising from the closerelationship between the investigative judges and the security services in France is that information obtained in third countries under torture orprohibited ill-treatment will be used in criminal proceedings in France. The absolute prohibition against torture is firmly embedded in customaryinternational law and international treaties to which France is a party. The International Covenant on Civil and Political Rights, the Convention againstTorture or Other Cruel, Inhuman or Degrading Treatment or Punishment, and the European Convention on Human Rights all affirm this cardinal principle. The ban on torture permits no exceptions or derogations and extends to the use ofinformation 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 France take 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, its use “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 put in the US Supreme Court’s judgment in theRochin case … ‘to afford brutality the cloak of law.’”[96]

Cooperation among intelligence and security services in different states is a critical component of the fight against terrorism. The existence of Alliance Base (a center in Paris for counterterrorism coordination amongWestern intelligence services established jointly by US and French intelligencein 2002) is one illustration of the close cooperation of French intelligenceservices with the majority of their counterparts in Western democracies. The DST and the RG also share information and collaborate with a wide range of services, including those with reputations for torture.[97]

A counterterrorism official who spoke with Human RightsWatch on condition of anonymity explained that French services normally receivea refined product, in the form of a summary or simply a tip-off, from a foreignintelligence service, rather than the raw intelligence. They then evaluate thereliability of the information taking into account the known methods andefficiency of the foreign service involved and attempt to cross-reference theinformation. They will also try to ensure that information coming from atrusted partner, for example the United Kingdom, is not in reality from anuntrustworthy source, for example Uzbekistan. The official stressed thatinformation obtained illegally, including through torture or ill-treatment, isunacceptable because the information is not reliable and it will ultimately beruled inadmissible in court.[98]

In practice, judicial control over this phase isnon-existent. As Bruguière explained, investigating judges receive informationonly from the DST, not directly from third-country sources: “They’re the oneswho do the interfacing [with other intelligence services], and they don’t tellus where they got the information … We don’t know whether the methods used werehuman or technical, or [even whether] the information comes from a thirdcountry …”[99]

Counterterrorism prosecutor Philippe Maitre confirmed this,explaining, “There is no judicial control over the intelligence services. It’s the judicial procedure that verifies the information that begins as intelligence …The origin of 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 determining whether to open an official investigation orauthorize certain investigative steps.

But in fact, an investigating judge can fully “judicialize”intelligence information coming from abroad by instituting an “internationalinquiry commission” (commission rogatoire internationale) to requestofficial information from judicial authorities in a given country. The judgemay travel to the country to participate in, or observe, interrogations.Information gathered under these circumstances, regardless of the conditions ofconfinement and treatment of the detainee before and after the internationalinquiry commission, 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 criminal proceedings in France. Individuals subjected to the prohibitedill-treatment in a third country and then prosecuted in France have the opportunity to contest the use of this evidence, sometimes successfully, asillustrated below. There is very little scope, however, for challenginginformation 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 judges and 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 Algerian who has spent the lastsix years in solitary confinement in a French prison. He was sentenced in March2005 to 10 years in prison, the maximum penalty for criminal association inrelation to a terrorist undertaking. The Appeals Court subsequently confirmedthis sentence and added the obligation to serve two-thirds of this sentencebefore becoming eligible for release. In December 2006 Beghal’s acquired Frenchnationality was rescinded and he was ordered expelled from France upon release from prison.

Beghal was convicted of association de malfaiteurs largelyon the basis of statements he made under torture and prohibited ill-treatmentin the United Arab Emirates in September 2001. All the official court documentsrelating to the case state that Beghal was arrested at Dubai airport on September 7, 2001, because he was using a fake French passport. Beghal was transiting through theUAE from Pakistan on his way to Morocco. He had apparently been identified,though it is not clear by whom, as an al Qaeda operative implicated in plans toattack US interests in France. Beghal has claimed that he was arrested at hishotel, hours after he had arrived in Dubai, by five or six men wearing sunglasses.[101]He was extradited to France on October 1, 2001.

In a written statement, Beghal described harrowing treatmentin 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 without anesthetic andpain to the point of blackout.… Put in the cold in a big “fridge” or a cold room with the promise that I will die of cold. Always the eyes covered … to thepoint where I stopped thinking about the bandage or the existence of light.What kept coming back without ceasing: “Bin Laden gave you a mission.” Then inthe face of my negative answers, a break and – I think after September 11 and its events – they came back with a scenario: “You were charged with attacking the US embassy in Paris,” just like that, without preamble. They didn’t stop hammering me with this story.[102]

After a long flight from Dubai in which he was “suspended likea bat, hand-cuffed to the hooks used by parachutists, in the glacial cold ofhigh altitudes,”[103]Beghal was taken directly to the investigating judge and subjected to aseven-hour interrogation on October 1, 2001.[104] His court-appointedlawyer did not advise him to remain silent, nor did the lawyer demand that thehearing be postponed.

On this occasion, Beghal denied any plot to commit a terrorist attack on US interests in France. He told the investigating judge about the conditions andtreatment during detention in UAE. The forensic examination ordered by theinvestigating judge immediately after the interrogation revealed some traces of the kind of treatment Beghal reported—for example a bruise on his left arm, as well as marks on his left ankle and sole of the foot and a slight swelling of a toeon his left foot—and the doctor noted a “post-traumatic effect of the allegedevents.”[105]

The 10^th Chamber of the Correctional Court nonethelessallowed all of Beghal’s statements made in the UAE as evidence at trial, including his alleged confession that a high-level al Qaeda operative named Abu Zubayhdahhad tasked him with organizing an attack on the US embassy in France.[106]Applying a circular logic, the court held, “Even if Djamel Beghal wouldprogressively retract, and then definitively do so at the court hearing, the statements he made in the United Arab Emirates, it must be acknowledged that theessence of these, manifestly confirmed during his first hearing with the investigating judge [in France], would be in any event confirmed by numerousinvestigations.”[107]These investigations include DST reconstructions of Beghal’s travels; policeoperations in France, Belgium and Spain that confirmed contacts among alleged members of the group; and the statements in custody of various indivduals, including Nizar Trabelsi. Trabelsi is a Tunisian national who was arrested in Belgium on September 13, 2001, and eventually convicted in 2003 of plotting an attack on a NATO airbase in Belgium. There were suggestions that Trabelsi was meant to execute theattack on the US embassy in Paris, a charge he always denied, whereas heconfessed to the Belgian plot.[108]

The Correctional Court ruled that Beghal was a member of a terrorist network because of his contacts with certain individuals identified ashigh-level al Qaeda operatives. The judgment cites DST information aboutBeghal’s movements, which included time spent in paramilitary camps in Afghanistan and contact with alleged al Qaeda recruiters Abu Qatada and Abu Doha in the United 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 in the 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 Abu Qatada in London, as well as some of Beghal’sco-defendants and Nizar Trabelsi. But Beghal denied he had met Abu Zubayhdah in Afghanistan, and said his time in Afghanistan was not connected to al Qaeda.

The Appeals Court upheld Beghal’s conviction in December 2005 even as it determined that the testimony from the UAE could not be held against him.Noting that the only effective proof of a plot against US interests in Paris is the testimony obtained in Dubai “under conditions not compatible with the respect for the rights of defense,” the 10^th Chamber of the Appeals Courtnevertheless concluded that there was ample evidence to indicate Beghal’s “implication… in the most radical Islamist movement, that supported by al Qaeda, whoseobjectives of destabilizing Western regimes supporting the United States andIsrael are proven.”[111]

In February 2008 Beghal’s lawyer concluded, “The French justicesystem has not done itself honor in the way the Beghal affair was conducted,from the moment he was brought here until today. We found ourselves in theobligation to prove his innocence, in a reversal of all the rules of the game,and it was impossible. Everything was understood from the start, we never oncethought he would be acquitted. The judge’s mind was made up from the start.There were dozens of volumes, with nothing interesting in them, but there wasan accumulation of information to make believe that he [Beghal] could commit aterrorist act in the future.”[112]

Said Arif

Said Arif was one of the main figures in the so-calledChechen Network trial. The case involved 27 defendants, most of whom wereaccused of undergoing paramilitary training in camps located in the PankisiGorge in Georgia, with a view to returning to Europe to perpetrate terrorist attacks. The group was dubbed the “Chechen network” because many of them allegedly plannedto go to Chechnya to fight, although none of those on trial actually did so.[113]

Arif, a 43-year-old Algerian national, was detained in Damascus by Syrian intelligence services in July 2003. He was brought to France in June 2004, under an ad hoc procedure in the absence of an extradition treaty between thetwo countries. A French investigating judge traveled to Damascus in May 2004 aspart of an international inquiry commission and provided Syrian authorities with 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 Arif in custody.[115]

Arif has credibly alleged that he was tortured throughoutthe year he spent in Syrian custody:

I was held on premises of the Syrian secret service for one year in inhuman conditions. I was in an individual cell 1 meter by 1.9 meters, witha ceiling of 2 meters, in total darkness. I slept on the dirty floor, withoutaccess to medical care. I couldn’t talk or had no notion of time, and I was hittime and again. During the winter I did not have heating or hot water … thatyear in detention in Damascus, I was tortured with a television cable, and theyhad put me in a tire, which affected my spinal column. Getting slapped was theleast of the abuse I suffered … I was forced to admit facts I didn’t know, ignoring, up until the last day of my detention, that there was an international inquiry commissionand without the assistance of a lawyer .[116]

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

Arif disavowed everything he is alleged to have said whilein Syrian custody. His lawyer, Sébastien Bono, successfully argued that allpieces of evidence emanating from his detention in Syria that were included in the prosecution’s case against Arif should be inadmissible at trial. The court, havingheard testimony from the International Federation of Human Rights, AmnestyInternational and the World Organization against Torture about widespread andsystematic torture in Syria, agreed that it was “likely that the statementsmade by Said Arif in Syria … were made under torture, and that his confessionswere obtained by the same method.”[118]

The court nonetheless convicted Arif in June 2006 of membership in a cr iminal association in relation to a terrorist undertaking, and sentenced himto nine years in prison. The ruling found that Arif was proved to be a member of Abu Doha’s terrorist network, that he had spent time 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 members of a French terrorist cell, and that he was in Barcelona in March 2002 at the time when a meeting took placeamong radical Islamists “to define the new Jihad strategy in Europe.”[119]The senior judge of the 10^th chamber of the Correctional Court thattried the case, Jacqueline Rebeyrotte, also presided over the trial of the so-called Frankfurt group accused of plotting an attack on the Strasbourg Christmas market in 2000. In the 2004 verdict, which convicted 10 men, the judge (and her twofellow judges) referred to Arif as one of several “big fish” and suggested thathis membership in a “radical Islamist movement” was a given.[120]

Statements by Arif’s co-defendants, as well as alleged members of radical Islamist movements or networks, were key to the case. Most of those whoprovided testimony in police custody and in some cases to the investigatingjudge against their co-defendants later retracted these statements, allegingphysical and/or psychological pressure during police custody.[121]Statements made by Laurent Mourad Djoumakh, who was convicted for participationin the Strasbourg Christmas market plot, appear to have been particularlyimportant to the prosecution’s case and the verdict. Djoumakh testified that Arif was a member of Abu Doha’s network, and that Arif traveled to Georgia in 2001 using Djoumakh’s passport.[122]

In May 2007 the Appeals Court upheld the exclusion of thetestimony from Syria yet confirmed the lower court’s conviction and increased Arif’s prison term to 10 years—the maximum sentence—with the obligation to serve at leasttwo-thirds of his sentence. (The Prosecutor’s Office had argued before theAppeals Court that the lower court dismissed Arif’s Syria testimony“improperly” because there was no evidence that Arif had been tortured, and theSyrians had no interest in torturing Arif “since they were not interested inhis case and delivered him to France very quickly after his arrest”[123]).

The success of Arif’s lawyer, Sébastien Bono, in having thetestimony from Syria excluded has come at a price. The President of the AppealsCourt criticized Bono for stating in his written arguments that the Frenchinvestigating judges were complicit in torture, calling this language“slanderous and overstepping the bounds of freedom of speech of the defense.”[124]In November 2007 the Prosecutor’s Office asked the Disciplinary Committee ofthe Paris Bar Association to censure Bono for these accusations. Despite theview of the president of the Bar that Bono’s actions were legitimate defenseefforts, the Prosecutor’s Office opened its own disciplinary action againstBono in January 2008. By law this means the Bar Association’s committee mustconduct an inquiry. Possible sanctions include temporary or permanentdisbarment. The decision may be appealed to the same Appeals Court chamber thatruled 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 DST report dated November 6, 2002, at the outsetof the judicial investigation, stated that Abu Attiya was in charge ofpreparations in Georgia for chemical attacks in Europe.[126]A French investigating judge traveled to Amman as part of an internationalinquiry commission and submitted questions for Abu Attiya to the Jordanianauthorities. To the best of our information, the French judge neither directednor participated in any of the interrogations. There are references to AbuAttiya in the 305-page verdict from June 2006 and the Appeals Court decisionfrom May 2007. Indeed, the higher court lists Abu Attiya’s statements while incustody in Jordan as one of the principal elements of proof of a plot to commita chemical attack in France.[127]

The lawyer for Zine Eddine Khalid, one of the defendants inthe Chechen Network trial, argued before the Appeals Court that Abu Attiya’stestimony should be excluded given the conditions under which it was obtainedand “the absence of details about the sources of the information of the DST.”[128]

Human Rights Watch interviewed Abu Attiya in Jordan in August 2007. He gave his full name as Adnan Muhammad Sadiq Abu Najila. He told ushe was arrested in Azerbaijan in mid-August 2003 and transferred to Jordan in late September 2003. He was held in custody by the Jordanian General IntelligenceDepartment (GID) until December 30, 2007, when he was released, after over fouryears, without charge. The GID has a record of arbitrary arrest and abusivetreatment of prisoners.[129]During interrogations, “they asked me about people who came from Europe. Those people wanted to go to Chechnya but couldn’t; I didn’t have much to do withthem,” Abu Attiya told us. He claims he never confessed to a plot to commitattacks in Europe.

Abu Attiya said he suffered from sleep deprivation while in GID custody and that he was given pills and injections. “The injections mademe nervous and shaky, so I couldn’t concentrate. The pills were very small,they made me nervous and jumpy,” he said. He was not allowed to read his“confession” before he signed it.[130]

When asked by Human Rights Watch about information from AbuAttiya being used in the Chechen Network case, the investigating judge said,“But that was an international inquiry commission to Jordan... I have onlyparticipated 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 ofthe Court that hears these cases, though most are tried in either the 13^th,14^th, or 16^th chamber. All appeals against Correctional Court verdicts are heard by the same three judges presiding over the 10^thchamber of the Paris Appeals Court. Both the Office of the Prosecutor and thedefendant can appeal; in many of the cases reviewed by Human Rights Watch the Appeals Court upheld convictions and often increased prison sentences, and in some casesreversed acquittals and convicted defendants.

The standard of proof in the French criminal justice systemis defined in article 427 of the Code of Criminal Procedure: judges (and juries) decide according to their “innermost conviction” with respect to the innocence or guilt ofthe defendant in a system where all types of evidence are admissible (“freeproof” system). The trial chambers of the Correctional Court must providereasoned judgments explaining their verdicts. Judges and juries at the Assize Court, which tries the most serious felonies, do not have to provide areasoned judgment. The European Court of Human Rights has held that the“innermost conviction” standard is functionally equivalent to the criminal standard of proof “beyond a reasonable doubt” used in common law jurisdictions.[133]

Judge Jean-Claude Kross, the senior judge presiding over the16^th chamber of the Paris Correctional Court, explained that “werule based on the material and legal elements in the case file, including the police investigation” and stressed the importance of adversarial hearings in open court in elucidating the facts of the case.[134] Senior ProsecutorPhilippe Maitre emphasized that any doubt should benefit the accused.[135]

Human Rights Watch was unable to obtain statistics on theratio of convictions to the number of accused in cases involving allegedIslamist terrorism networks. Anecdotal evidence suggests that a majority of the accused in these often complex cases involving numerous defendants is convicted of something, either the main accusation of criminal association in relation to a terrorist undertaking, or minor crimes, such as forgery, decoupled from a terrorist intent. Europolfigures indicate that France had a 5 percent acquittal rate in terrorism trials in 2007: there were 52 convictions and 3 acquittals out of the total of 55 verdicts.These included 31 verdicts involving Islamist groups defendants and 24 casesinvolving separatist defendants. The acquittal rate for 2006 was 0 percent, as21 convictions were handed down in 21 verdicts.[136]

A number of those convicted on association de malfaiteurscharges are given sentences that appear to equate with the time already servedin pretrial detention. This may reflect the often lengthy detention before trial in terrorism cases, but perhaps too an effort to “cover” the period of time already servedto avoid any appearance of unjust detention.[137] And because French lawprovides for automatic reductions in prison sentences, these individuals areeffectively serving even longer sentences than they would have had they begunserving time only after conviction.[138]Hassan el Cheguer and Hakim Mokhfi were both sentenced to four years, with oneyear suspended, for membership in a terrorist network, having spent exactlythree years in pretrial detention. Initially they were charged, along withGhulam Mustafa Rama, with providing support to Richard Reid, the British citizen known as the “shoe bomber” because he attempted to ignite a bomb hidden in hisshoe on a Paris-Miami flight in December 2001. The prosecutors ultimatelyadmitted there was insufficient evidence on this count and instead argued that Ramahad recruited the two younger men into terrorism. El Cheguer and Mokhfi admitted spending three weeks in September 2001 in a training camp in Pakistan-administered Kashmir run by an Islamist organization called Lashkar-e-Toiba. They claimed they had notbeen fully informed and had been surprised and scared to discover its truenature.

Some of these convictions to time already served appear tobe based on evidence establishing little more than contact between certainpeople. A 2005 case involving six defendants prosecuted for membership in 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 period he had already spent in pretrial detention, and Johan Bonte,who was sentenced to one year, after having spent three years in pretrial detention.

The judgment—which documents a large number of phone callsand various meetings between the six defendants in the case, including Benmessahel and Bonte, —establishes without a doubt that these men knew each other (Bonteis Beghal’s brother-in-law).[139]But it does not establish any link to a specific terrorist plot in France, and leaves significant room for doubt that these men formed a network or group witha clear terrorist purpose.

Benmessahel’s wife expressed her frustration with theinvestigation:

I had lots of disks of articles on Islam, on all sorts oftopics, including one on martyrs. All in French, which my husband doesn’t evenspeak that well. I confirmed they were mine. My husband said they were mine,but the police insisted on saying they were his. I had proof that he went to Dusseldorf to buy a car, but no matter what I showed them, they insisted it was to meetwith terrorists. Rachid stepped on an anti-personnel mine in Algeria while he was doing his military service. [The investigating judge] kept saying he’d beeninjured in Afghanistan, and when I gave documentation from Algeria about Rachid’s injury to the lawyer to give to [the judge], he said he wouldn’t take it intoaccount, anything can be bought in Algeria. They said my husband had gone to Afghanistan in 1997-1998, and when I proved he hadn’t, they said he’d gone in 2000. Buthe’d been operated on then, so finally they said he was the person in France tasked with coordinating everything. I had the feeling I was hitting my head againsta brick wall.[140]

Two years after Rachid Benmessahel was released from prison his acquired French nationality was rescinded and he was expelled to Algeria. His wife, a French citizen, and their three children, continue to live on the outskirts of Paris.

Ibrahim Keita and Azdine Sayez were tried along with fourothers for membership in a network providing support for al-Qaeda operativesand recruitment to terrorism. Three of the other defendants were convicted of providing financial and logistical support to the two Tunisian men who killed themilitary leader of the National Islamic United Front for the Salvation of Afghanistan, Commander Ahmed Shah Massoud in September 2001. A fourth was sentenced to two years in prison for organizing paramilitary training camps. Although tried alongside these men, Keita wasaccused of providing support to Willy Brigitte, a French citizen who wasultimately convicted of plotting a terrorist attack in Australia. Keita, a pious Muslim, shared a small spartan room with Brigitte in Paris: Keita slept there during the day, while Brigitte could use it at night while Keita workedas a truck driver. This, and the fact that he participated in what he calledhiking trips organized by the mosque he attended, appear to be the only basisfor the association de malfaiteurs accusation. After spending roughly ayear-and-a-half in pretrial detention, Keita was acquitted by the Correctional Court. The Office of the Prosecutor appealed, however, and the Appeals Court reversed the acquittal and sentenced Keita to two years in prison. With time already served and automatic reductions, Keita did not return to prison.

His co-defendant Sayez appears to have been arrested andplaced under judicial examination for little more than the fact that he owned ahalal pizzeria patronized by many of the other defendants in the case. Keitahimself would stop there to pick up a pizza while he worked making deliveries. Sayez spent roughly eight months in pretrial detention before his acquittal. But likeKeita, Sayez saw this acquittal reversed by the Appeals Court and he was sentencedto two years in prison; unlike Keita, Sayez was rearrested and incarcerated tocomplete his sentence.[141]

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

Kinai, now 64 years old, had been initially arrested on May26, 1998, in France as part of the operation to avert an alleged terrorist plot targeting the soccer World Cup in France that year. Kinai was eventually accused ofbeing a leading figure in a group formed to provide material and logisticalsupport to the GIA in Algeria, and of giving his approval of a plot to murder Paris mosque imam Dalil Boubaker. Kinai spent 11 months in pretrial detention in France before being released under judicial supervision. On December 12, 2000, the Correctional Court acquitted him of all charges. In this trial, 16 out of 24 defendants wereacquitted of the most serious charges related to membership in a terrorist association de malfaiteurs.[142]The prosecution appealed the acquittal, however, and on March 14, 2002, the Paris Appeals Court found Kinai guilty and sentenced him to five years in prison.

Kinai had returned to Germany after the acquittal by thelower court, and he was arrested in Stuttgart on July 1, 2002, pendingextradition to France to serve his prison sentence. After examining the casedocuments, however, the Higher Regional Court in Stuttgart revoked the arrestwarrant on November 22, 2002, and definitively declared Kinai’s extradition to France inadmissible on April 7, 2003, citing lack of legal grounds for the extraditionrequest. With respect to the alleged membership in a criminal association tocommit terrorism, the Court concluded that “it is impossible to determine fromthe documents provided by the French authorities whether the network allegedlyled by the accused even fulfills the criteria of a criminal or terrorist organization … there are no specific allegations that would allow the Court to determinethe organizational structure of this network.” With respect to the alleged plotto murder the imam of the Paris mosque, the Court also found it could notdetermine the existence of any criminal offense.[143]

A Canadian court also took the view that a French conviction for association de malfaiteurs was unfounded. Abdellah Ouzghar, a dual Canadian-Moroccancitizen, was convicted in absentia in April 2001 in France for association demalfaiteurs and passport forgery and sentenced to five years in 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 April 2001 of attempting to smuggle explosives from Canada in order to blow up Los Angeles International Airport. France sought Ouzghar’s extraditionfrom Canada shortly 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 member of an international terrorist group but allowed his extradition on the lesser charges (for example, passport forgery). Ayear later, in January 2008, the Canadian Minister of Justice ignored thejudge’s finding and allowed extradition also on the basis of the terrorism charge. As of May 2008, Ouzghar remained in Canada with appeals pending.[145]

In France, anyone who spends time in pretrial detention and is subsequently released without charge or acquitted of all charges at trial has the right to compensation.[146]Saliha Lebik spent one year in pretrial detention with her infant daughterbefore being acquitted of all charges by the Correctional Court in June 2006.Both Lebik, the wife of one of the principal defendants in the Chechen Networktrial, and her daughter contracted tuberculosis in prison. Her husband Mérouane Benahmed was convicted of terrorism association de malfaiteurs and sentencedto the maximum of ten years in prison. The Appeals Court upheld Lebik’sacquittal in May 2007, paving the way for her to receive compensation. At thiswriting, no decision had yet been rendered on Lebik’s suit for over €220,000 indamages.[147]Those who are convicted but sentenced to a shorter time in prison than already spent awaiting trial, like Johan Bonte (see above) do not have the right to compensation.

V. Police Custodyin Terrorism Cases

French Law and Procedure

French law provides one of the longer periods of police custody—before an individual is taken before a judge and either charged orreleased—in terrorism cases in continental Europe.[148]Under the French Code of Criminal Procedure (CCP), terrorism suspects may beheld for up to six days before being brought before a judge. Standard policecustody in criminal investigations is set at 24 hours with the possibility ofone extension to 48 hours. In cases involving terrorism suspects, police mayrequest judicial authorization to 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 during this period, which is meant toallow only for any necessary travel time.

In practice, a four-day detention period in terrorism investigations is standard; extensions are virtually systematic. The CCP stipulates thatthe judicial authority—which in practice can be the investigating judge or theliberty and custody judge—must see the detainee before authorizing the extension. Anecdotal evidence suggests that judges do regularly visit suspects in theplace of detention before authorizing extensions, for what are usually brief, on-site exchanges.

The power to hold terrorism suspects for up to six days wasintroduced in January 2006 in cases where there is a serious risk of an imminent terrorist attack or if the complexity of the case and the need forinternational cooperation impose the need.[149] According to counterterrorism prosecutor Philippe Maitre, this power has been used so far only once, to allowan extension to five days.[150]

Under the Code of Criminal Procedure, terrorism suspects, like all detainees, have the right to be informed of the reason for the arrest,the right to request a medical examination, and a qualified right to inform someone of their arrest.[151]Detainees do not have the right to a medical examination by a doctor of theirown choosing, and the prosecutor, on advice from the police officer in charge, may deny the right to inform a third party of the detention if such contactis considered prejudicial to the ongoing investigation.[152]This denial appears to be standard in terrorism cases; none of the individualswe spoke with who had been arrested on terrorism charges were able to make anyphone calls during their time in police custody.

During police custody, terrorism suspects have severely curtailedaccess to legal counsel. While most suspects have the right to ask to see alawyer of their choice or court-appointed from the outset of detention, terrorism suspects have access to a lawyer only after 72 hours, or three days, in police custody.[153]If the judge extends police custody by an additional 24 hours before the end ofthe 72^nd hour, first access to a lawyer is pushed back to after the96^th 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 limited to 30 minutes, and counsel doesnot have access to any detailed information about the charges against theirclient. The lawyer must be given access to the case file before the sessionwith the investigating judge, and anecdotal evidence from numerous interviewswith defense attorneys suggests this usually takes place three or four hoursbefore the hearing.

All detainees in police custody in France, regardless of the reasons for their arrest, are questioned without the presence of a lawyer,they are not informed of the right to remain silent, and anything they say maybe 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 rest a detainee must have between interrogations.

The same strict rules seriously limiting access to a lawyerapply whether counsel is privately hired or appointed. The Paris bar association (Barreau de Paris) maintains lists of criminal lawyers who volunteerto be “on duty” to assist those detained on criminal charges for the durationof police custody who do not designate a private lawyer. A different lawyer,either another legal aid attorney or a private lawyer, takes over the case asof the first session with the investigating judge (premiere comparution).In terrorism cases, detainees who are unable to hire a private lawyer areassisted from this point on by one of the 12 “secretaires de laconference,” an elite group of young lawyers elected each year after acompetitive 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 crime cases.[154] While allinterrogations of minors had been recorded since 2002, it was the OutreauAffair that created the momentum for instituting more generalized recording ofinterrogations in order to better protect the rights of detainees as well asprotect the police from false accusations of mistreatment. A specialparliamentary inquiry into the Outreau Affair recommended recording all policeinterrogations, regardless of the nature of the offense.[155]Terrorism, drug trafficking, and organized crime cases were excluded in the end because of the “complexity” of these investigations.[156]

The combination of constraints on the rights of suspects inpolice custody in terrorism cases—severely delayed and limited access tocounsel, no information about the right to remain silent, the likelihood ofbeing unable to notify a third party, and the lack of limits on the duration ofinterrogations—create a situation in which detainees are denied the right to an effective defense at a critical stage and are at risk of prohibited ill-treatment.

Limited Access to Counsel

The right of all persons accused of a crime to the assistance 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 hisown choosing” or be assigned free legal assistance if necessary. The UN HumanRights Committee and the European Court of Human Rights have considered theseprovisions applicable to periods before trial, including the period in 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 enshrined in Article 6 (art. 6) requiresthat the accused has the benefit of the assistance of a lawyer already at theinitial stages of police interrogation. To deny access to a lawyer for thefirst 48 hours of police questioning, in a situation where the rights of the defence may well be irretrievably prejudiced, is - whatever the justification forsuch denial - incompatible with the rights of the accused under Article 6 (art.6).[158]

The UN Basic Principles on the Role of Lawyers requires that

All arrested, detained or imprisoned persons shall beprovided with adequate opportunities, time and facilities to be visited by andto communicate and consult with a lawyer, without delay, interception orcensorship and in full confidentiality.[159]

A 2003 European Commission Green Paper on proceduralsafeguards for suspects and defendants in criminal proceedings reflects thesestandards in confirming that the right to legal representation “arises immediately upon arrest” and that the suspect is entitled to such representation“throughout the questioning and interview stages of the proceedings.”[160]

French tradition and current practice stand in starkcontrast to these international standards. The right to see a lawyer in policecustody was only introduced in 1993, and remains limited even in ordinary criminal cases. The police custody regime in terrorism cases in particular appears to beorganized to be as oppressive as possible with a view to obtaining confessions.“The principle in the French justice system is that there is no defense againstthe police,” according to defense attorney Henri Leclerc. The lawyer’s visitafter 72 hours “is not very effective … [because] the lawyer doesn’t assist hisclient during the interrogations [and] the person is defenseless,” Leclerccontended.[161]

Numerous international human rights authorities have criticized the terms of police custody in France. In 1997 the UN Human RightsCommittee expressed concern about “prolonged detention in police custody” anddelayed access to counsel under France’s counterterrorism legislation, andurged France to bring its laws into conformity with articles 9 and 14 of theICCPR.[162]Then Council of Europe Commissioner for Human Rights Alvaro Gil-Robles in 2005similarly recommended reforming access to counsel in order “to ensure that thefundamental rights of persons in police custody are respected.”[163] Finally, the European Committee for the Prevention of Torture(CPT), an authoritative human rights body of the Council of Europe thatconducts country visits, has repeatedly called on France to allow detaineesaccess to a lawyer from the outset of detention in all of its reports since1996 (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 experience defending terrorism suspects, Nicolas Salomon,said of the 30-minute interview, “It’s pointless. It’s only for ensuring the health of the detainee. We can’t see him at the first hour, so we can’t even verify if injuries were 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 of suspects detained on international terrorism charges 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-related offense)said of one occasion, “I saw a lawyer, but he told me, ‘I’m just here as aformality, I can’t do anything for you.’”[169] On another occasion, hesaid the lawyer urged him to admit knowing other individuals arrested in thecourse of the same investigation if he wanted to get 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 andmet his court-appointed lawyer for the first time for the hearing with the investigating judge: “We had just five minutes in front of the judge’s door. Andthe same lawyer had to represent the woman [defendant] in the case too.”[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 based onstatementsallegedly by a man named M’hamed Benyamina while arbitrarily detained 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 right before 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 was psychologically and physicallyill-treated in custody, did not see a lawyer until just before the hearing with the judge. Their stories are detailed below.

Right to silence and theright to an effective defense

The right to silence to avoid self-incrimination in criminal proceedings is a generally recognized international standard. The European Court ofHuman Rights has interpreted article 6 of the ECHR on the right to a fair t rial as encompassing the right to remain silent, considered to be intimatelylinked to the principle of presumption of innocence. As a result, the 2003European Commission Green Paper on procedural safeguards emphasized thatsuspects be advised of “any right to silence … of the consequences of makingany confession and of the weight to be given in any subsequent proceedings toany answers he makes.”[176]

While the right to remain silent under police questioning isgenerally understood to apply in France because of European Court of HumanRights jurisprudence, it is not explicitly guaranteed in the CCP or the FrenchConstitution.

Notification of the right to silence for those in policecustody was incorporated into the French Code of Criminal Procedure in 2000.But it was removed again in 2003 under intense lobbying from law enforcement.[177]Council of Europe Commissioner for Human Rights Gil-Robles criticized France for the decision in a 2006 report: “I regard France’s retreat on this point as highly deleterious, since concealing legal rights is never a goodthing.”[178] TheNational Bar Association (Conseil National des Barreaux) also supports the right of those in police custody to remain silent.[179]

The Constitutional Court has ruled that delayed access to alawyer is permissible because police custody is subject to judicial supervisionand because this deferment “cannot determine the subsequent course ofproceedings.”[180]Yet police custody constitutes a critical stage in the criminal investigation.Statements made during police custody are summarized in an official statement,which is admitted into the case file whether signed by the suspect 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 incriminating statements madein police custody carry significant weight and influence the “innermost conviction” of the judge.

As one lawyer argued, “Anybody is ready to confess toanything after five days. The only limit is that the police can’t put so muchpressure as to make someone confess too much. Not many people resist. Aconfession 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 with other evidence.”[182]

In contrast to the position in police custody, suspects areinformed of their right to remain silent 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 limited amount of time lawyers have tomeet with clients and to acquaint themselves with the investigation and thecharges against their client places severe restrictions on the lawyer’s abilityto effectively defend his or her client at a critical stage in the proceedings.Lawyers have no access to the case file until a short time, normally three orfour hours, before the first hearing with the investigating judge. As onelawyer explained, “You don’t have time to study anything but your client’sinterrogations. You don’t have the time to look at the interrogations of theother people arrested at the same time.”[184]

Ill-treatment inCustody

Prompt and meaningful access to a lawyer during police custody is a fundamental safeguard against torture and prohibited ill-treatment. Ahalf-hour meeting with a lawyer three days after arrest is an insufficientsafeguard against such treatment. The presence of a lawyer from the very outsetof detention and during all questioning is a far more effective protection.

French law provides for medical examinations of detainees inpolice custody, another safeguard. Under the specific regime for terrorism suspects, detainees may request a medical exam at any time, and judicial officials mayorder it on their own authority.[185]If detention is extended beyond 96 hours, the exam becomes automatic andobligatory.[186]The primary mission of the forensic doctor is to certify that the detainee’sstate of health is compatible with continuing police custody.[187]

Our research suggests that the right to access to a medicalexamination is generally respected and we did not gather evidence of systematicproblems. 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 forconfidentiality.[188]A few of the cases of alleged abuse in French custody discussed below raise serious concerns, however. Emmanuel Nieto, for example, was examined by the medical doctor in hiscell in the presence of police officers.[189] Abdellah Kinai told us,“When the doctor saw what terrible shape I was in, he said he couldn’t doanything for me, he didn’t even examine me.” Kinai said he had never seen anymedical report.[190]The CPT has repeatedly recommended that detainees in police custody have the right to request a second examination by a doctor of their 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 authorities to protect them fromtorture and prohibited ill-treatment. In at least three cases involving abuseof detainees in police custody, the Court has found France in violation ofarticle 3 of the European Convention on Human Rights prohibiting torture orcruel, inhuman or degrading treatment or punishment.[192]In all of these cases, one of which involved a French citizen accused ofparticipating in a terrorist attack in 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 toterrorism, cannot result in limits being placed on the protection to beafforded 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 hadrecently been held in police custody for four days on suspicion of involvementin terrorism. Both complained that they had been interrogated day and night,and this was corroborated by police records. The CPT also verified that the counterterrorist police in charge of the interrogations had given explicitinstructions in one man’s case to withhold a blanket and leave the cell lighton at all times.[194]

Human Rights Watch spoke with, or obtained the testimoniesof, 13 terrorism suspects subjected to relentless, oppressive questioning andin some cases psychological and physical ill-treatment. Interrogations can takeplace at any time of the day or night, and there are no rules about the amountof rest a detainee must have between sessions. We heard of sleep deprivation, disorientation, constant, repetitive questioning, and psychological pressure. Apattern of extended questioning and sleep deprivation was corroborated by thedetails in five police reports examined by Human Rights Watch. These reportsmust 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 worse than 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 atotal of over 45 hours in 13 different sessions. These included a session from 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 trial of alleged members of the Moroccan Islamic Combatant Group (GICM, its French acronym) accused ofparticipation in the planning of the 2003 Casablanca bombings said at trial that he had been subjected to 40 hours of questioning during his four-day police custody.[197] (Forty-five people, including 12 suicide bombers, died in simultaneous attacksin Casablance on May 16, 2003.)

Mohammed Y. was interrogated 17 different times for a totalof 34 hours during his four days in police 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 wassubjected to 12 interrogations for a total of over 25 hours during the three days she spent in police custody in May 2004, including sessions in the middle ofthe night.[200]

Everyone we spoke with recounted extreme psychologicalpressure while in police custody. Some mentioned specific threats. RedouaneAberbri, one of the defendants in the GICM trial along with Bachir Ghoumid, saysthat when the investigating judge visited him before extending his time inpolice custody, he complained about being handcuffed to a chair and the sleepdeprivation. “He didn’t want to take it into consideration. He threatened mesaying that I still had two more days to talk since I hadn’t yet said much, orelse he’d send me as a ‘gift package to the Moroccans who have different waysof doing things.’ What could I say?[201] Human Rights Watch wasunable to get a response from the investigating judge about this allegation.[202]Another recounted how an officer told him, “’You’re lucky we’re in France or I’d put a bullet in your head.’ 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 officers who told him they were from Paris. He said the abuse started during the first interrogation after he was taken to the policestation:

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 described being handcuffed behind the back, grabbed bythe throat and pushed up against the wall, and forced to kneel for long periods. He was forced to kneel with his hands shackled behind his back, with his feet in aparticular position or the officer would come and press down on his legs withhis foot until he signed his formal statement. “One man held one hand behind myback and I signed with the other. A police officer turned the pages. I didn’thave the concentration to read it.”

According to police records, Nieto was examined twice by adoctor, though he could only remember one 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 the handcuffs. “I was so tired, and then it’sthe French system, I wasn’t surprised. When they don’t have the proof they haveto do everything to make you talk … I’m not someone who complains … For usMuslims it’s not this life that matters, it’s what comes after.” The twodoctors’ certificates do not attest to any physical traces of ill-treatment.[205]

Lahouari Mahamedi was arrested early in the morning of April 22, 2003. He spent four days in police custody. He lodged a criminal complaint alleging hewas beaten after the medical examination and that he was denied a secondexamination he requested. He reported this to the investigating judge. Anexamination conducted on April 26, 2003, in Fresnes prison, where he had beenremanded into pretrial detention, revealed several areas of localized swellingfilled 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 shesaw him at one point 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 to investigatethe allegation, and apparently took testimony from some of the officers who interrogated Mahamedi, but as of the end of May 2008, no significant progress hadbeen 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 practice his religionin peace. I’m exiled, without my family, old and sick, I didn’t do anything toanyone.[208]

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

Tlili Lazhar was arrested in Marseilles in October 2002, andconvicted in December 2004 of participation in the plot to bomb the Christmas market in Strasbourg. He was extradited to Italy in connection with an Italian terrorism investigation in November 2006. He told Italian investigators he had been abused in policecustody in France:

When I was arrested in Marseilles, I spent five dayswithout being able 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 hands tiedbehind my back and tied to the chair. During these interrogations the head ofthe police in Paris hit me. The first time, I was hit three or four timesreally hard, and then five or 6 punches in the face, and the beatings camewhenever I didn’t give them the answer they wanted. On that first occasion Ibled from my mouth and I stayed with my face covered in blood until I was takenback to my cell … The second time, I was hit and punched during the interrogation, always by the head of the DST in Paris … The third time I was hit by thesame 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 ongoing arrest measure” and concluded that “[i]f confirmed, the behavior denounced by Tlili … would not only be contrary tohuman rights principles as well as counterproductive in an ethical sense to thefight against terrorism, but would certainly constitute a crime according to the criminal code of any European country.”[210]

In May 2007, the Milan Prosecutor’s Office asked the ItalianJustice Ministry to forward a note to French authorities reporting Lazhar’sallegations of ill-treatment so the French prosecutor’s office could evaluatewhether to open a criminal investigation. In January 2008 the Paris prosecutor’s office informed their Italian counterparts that the statute of limitations (three years in these cases) had expired and no public action was possible.[211]

The CPT has repeatedly recommended that persons taken intocustody in France have access to a lawyer from the outset of detention, thatthe lawyer be present for all police interrogations, and that no time limit be set on lawyer-detainee consultations. Indeed, while the CPT acknowledges that it may benecessary, for as brief a period as possible, to deny a detainee the right to a lawyer of his or her own choosing, the Committee concluded that “it is difficult to conceiveof a convincing argument capable of justifying the total refusal of the right of access to a lawyer for three days.”[212]

A law adopted on October 30, 2007, created an independentmonitoring body for all places of detention in France: the “General Inspectorof Places of Deprivation of Liberty.” This body complies with the requirementsof the Optional Protocol to the Convention Against Torture, which France has signed but not yet ratified.[213]The new monitoring body, which at this writing was not yet operational, willhave the authority to visit, among other places of detention, all facilitiesused for police custody, and conduct private interviews with any detainee.[214]Access may be denied for serious reasons relating to national defense, publicsecurity, or “serious troubles” in the place of detention.[215]

VI. Impact on MuslimCommunities inFrance

The fight against terrorism is also and perhaps above all along-term battle of ideas.

—Nicolas Sarkozy, then interior minister[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 criminal association in relation to a terrorist undertaking[217]

The fight against Islamist or international terrorism has targeted a defined, if large and diverse community—Muslims—in a way that the fightagainst other types of terrorism never have. France is home to anywhere betweenthree and five million Muslims, up to an estimated 10 percent of the overallpopulation and the largest Muslim population in Western Europe. Perhaps half tothree-fifths are French citizens, while the rest are nationals of other countries (though they may have lived in France for decades or even their entire lives).

A 2006 French government white paper on domestic security against terrorism affirmed the government’s commitment “never [t0] compromise thefundamental values of the rule of law” in the fight against terrorism, to reject any conflation of Islam with terrorism, and to pursue a communications policydesigned to “build a wide consensus, integrating first and foremost the fraction of the population the terrorists claim to speak for …”[218]

Excesses in the name of preventing terrorism, even if this fight is framedwithin the criminal justice system, are likely to be counterproductive as theyalienate entire Muslim communities rather than isolate the extremists fromthose 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 and religious-based harassment in police custody,fuel a perception among Muslims that all Muslims are suspect in the eyes ofFrench authorities. Interrogations of terrorism suspects in police custodyoften include questions about religious beliefs and practices.[219]Women who wear a religious headdress are invariably asked why; men are askedtheir views on women’s equality.

Abusive and discriminatory measures can actually serve toradicalize individuals already vulnerable, for whatever personal,socioeconomic, or political reasons, to extremist views. One counterterrorism official 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 a garage. [After the arrest] he lost his job,he lost his girlfriend. He was diminished in his mother’s eyes because hebrought shame on the family when the police came to arrest him. If he wasn’t aterrorist before, that experience radicalized him. If before he went to Bosnia to 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 former detainees and their spouses talked alsoabout the effects on children.

Salima Benmessahel, the wife of a man who spent three yearsin pretrial detention before being sentenced to exactly three years in prison on what she views as trumped-up terrorism charges, told us, “I can see how these guys convicted of terrorism who didn’t do anything get out of prison and want to go blow themselves up. Theygo in normal and come out enraged.” She told of the time her five-year-old sonwanted to keep all the car windows rolled up despite the heat of the daybecause he was worried that if the police heard them listening to the Koran ontape “they’d send us to prison too.” Two years after Benmessahel’s husband wasreleased from prison in March 2005, French authorities rescinded his acquiredFrench citizenship and expelled him in April 2007 to Algeria.[221]

During the first of Abdul N.’s four arrests on suspicion ofterrorism, he spent four months in pretrial detention and was then acquitted attrial. The second time he spent six and a half months awaiting trial and was then convicted of dealing in stolen merchandise without any connection to a terrorism offense. The third time he was placed under judicial supervision until the charges weredropped. The last time he was arrested was June 2006. On that occasion, hiswife was also arrested and spent one day in police custody with hertwo-month-old baby. Abdul N. spent nine-and-a-half months in pretrial detention before being released under judicial supervision. He is currently awaiting trial. “Every time they arrest me, they say, ‘we know you’re not a bad guy, but you know lots ofpeople.’”

Abdul N. says he wants to leave France, for his own sake andthat of 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 would have gone, why put on such a spectacle? Theyviolate our principles but it’s accepted in order to defend the rights of some. They’re not going to avoid problems by harassing people, that’s going to stir uprancor and hatred—that’s whatI’m afraid of.”[223]

Abusive security measures that disproportionately affectMuslims are likely to undermine confidence in law enforcement and security forces among the very communities whose cooperation is critical in the fight against terrorism. Successful policing, and preventing and prosecuting terrorism, require public cooperationand in particular tip-offs about suspicious activity. Neighbors, acquaintances,and family members are far less likely to report concerns if they lackconfidence that authorities will act justly.

Detailed Recommendations

To the Government of France

The president, the minister of justice, and other seniorgovernment officials should publicly and unequivocally affirm that torture andcruel, inhuman, or degrading treatment is unacceptable, both in France and elsewhere, and that information obtained under torture and prohibited ill-treatment mustnot be used at any stage of judicial investigations and proceedings in France.

To the Ministry of Justice

Association de Malfaiteurs

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

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

The Right to a Fair Trial

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

Prevent unjustified arrests

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

Guarantee the right to an effective defense

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

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

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

○ Be questioned by the police only in the presence ofa lawyer;

○ Be notified of their right to remain silent.

· During the judicial investigation phase:

○ Abolish centralization of all terrorism cases in Paris and increase the pool of prosecutors and investigating judges with experience of handling terrorism cases in tribunals around the country. Ensure that investigatingjudges working on terrorism cases 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 file areavailable to defense attorneys during the investigation phase. These copiesshould 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 pretrial detention

Strengthen the role and independence of the liberty and custody judges (JLDs) by:

Adopting guidelines to prohibit and sanction pressure from prosecutors and investigating judges on liberty and custody judges;
Ensuring that decisions with respect to remand and renewal of pretrial detention are fully motivated, taking into account the particulars of the individual and the criteria in French law;
Ensuring that JLDs are assigned permanently the dossier for an individual defendant so that they review every decision with respect to renewal of detention and appeals for provisional liberty;
Ensuring continuing training of JLDs to guarantee they are fully aware of their responsibilities and prerogatives, including the obligation to study the merits of the case and their ability to delay the first hearing to better study the case file;
Revisiting proposals to separate clearly the corps of prosecutors and judges, including JLDs, by instituting a distinct legal training.

Require the presence of a lawyer in the hearing for renewal of detention. Such hearings should not proceed without the benefit of counsel except in cases where the accused has chosen to represent him or herself.

Torture and Ill-treatment

The Ministry of Justice should take the lead in proposinglegislative reforms to bring France fully into line with its internationalobligations under the Convention Against Torture:

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 Criminal Procedure should be reformed to:

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

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

· Prioritize spontaneous, unannounced visits toplaces of police detention, including those where terrorism suspects are beingheld, to inspect conditions and speak with detainees in private abouttreatment;

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

Acknowledgements

Judith Sunderland, researcher with the Europe and CentralAsia Division of Human Rights Watch, wrote this report based on researchconducted in France between July 2007 and February 2008. The report was editedby Ben Ward, associate director in the Europe and Central Asia 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, director of the Terrorism and Counterterrorism Program, and Veronika Szente Goldston, advocacy director in the Europe and Central Asia Division. DelphineDogot, intern in the Paris office of Human Rights Watch, provided invaluableresearch assistance. Production assistance was provided by Iwona Zielinska,associate in the Europe and Central Asia Division; Andrea Holley, publicationsdirector; 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 gave generously of their limited time to discusstheir clients’ cases and provide insight on questions of law. We appreciate thewillingness of judges and government officials to speak with us in the courseof this research. Finally, we acknowledge the individuals arrested inconnection with terrorism charges and their family members who agreed to speakwith us and share their experiences.

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

[1]ActionDirecte was a left-wing group active in the late 1970s and 1980s that usedviolence to further its political goals.

[2] Antoine Garapon, “Is There a French Advantage in theFight Against Terrorism,” Analisis del Real Instituto (ARI), Issue 110/2005,September 1, 2005, El Cano Royal Institute,http://www.realinstitutoelcano.org/analisis.807.asp (accessed October 10,2006). The term “de-territorialized” refers to terrorism that is not linked toa country-specific cause, such as Algerian independence, but is rather anexpression of transnational goals.

[3]For adetailed analysis of France’s use of national security removals, see HumanRights Watch,France – In the Name of Prevention: Insufficient Safeguards inNational Security Removals, vol. 19 no. 3(D), June 2007,http://hrw.org/reports/2007/france0607/.

[4] Article 82-1 of the Code of Criminal Procedure (CCP)provides a non-exhaustive list of investigative steps.

[5]CCP, art.81.

[6]NationalAssembly, "Rapport No. 3125 de la commission d’enquete chargee derechercher les causes des dysfonctionnements de la justice dans l’affaire dited’Outreau et de formuler des propositions pour eviter leur renouvellement,”June 6, 2006, pp. 337-343, http://www.assemblee-nationale.fr/12/pdf/rap-enq/r3125.pdf(accessed April 9, 2008).

[7]Law2007-291 of 5 March 2007 tending to strengthen the balance in criminal procedure, article 1.

[8]CCP, art.80-1.

[9] Ibid., art.427.

[10]Ibid.,art. 702 (as amended by Law No. 82-621 of July 21, 1982). The officialEnglish-language translation of the Code of Criminal Procedure is available atwww.legifrance.gouv.fr.

[11]The Constitutional Court ruled that replacing a popular jury by professional judges in terrorism-related cases was a legitimate means of avoiding pressure and threats. Decision No. 86-213DC, September 3, 1986.

[12]The96-hour period of police custody is also applicable to drug trafficking andorganized crime suspects.

[13]The term“association de malfaiteurs” can be used with respect to numerous crimes. In this report, we use it to refer exclusively to the offense of belonging to a criminal association in relation to a terrorist undertaking. This statistic is from the Ministry of Justice, as reported in Piotr Smolar, “Les prisons francaises comptent 358 detenuspour activisme,” Le Monde (Paris), September 9, 2005.

[14] Jacky Durant and Patricia Tourancheau, “Lamenace terroriste contre la France est elevee,”Liberation (Paris), October 18, 2006.

[15]Criminal Code (CC), art. 421-2-1.

[16]The lawstipulates the higher penalty for membership in a group whose purpose is toprepare attacks on persons as listed in article 421-1 (willful attacks on life,willful attacks on the physical integrity of persons, abduction and unlawfuldetention and also the hijacking of planes, vessels or any other means oftransport); attacks with explosives or fire in places and at times where suchattacks are likely to cause the death of one or more persons; or theintroduction into the atmosphere, the ground, waters, foodstuffs or ingredientsof any substance liable to cause the death of one or more persons. Law No.2006-64 of 23 January 2006 concerning the fight against terrorism and adopting different measures for security and border controls. As of February 2008, noone had yet been charged with association de malfaiteurs as a serious felony offense. See National Assembly, Law Commission Information Report on theimplementation of Law No. 2006-64 of 23 January 2006, February 5, 2008.

[17] Law No. 2006-64 of January 23, 2006.

[18] Ibid.

[19] Law No. 2001-1062 of 15 November 2001 concerningeveryday security; Law No. 2003-239 of 18 March 2003 for internal security; Law No. 2004-204 of 9 March 2004 adapting justice to the evolution of criminality; and Law No. 2006-64 of 23 January 2006 concerning the fight against terrorism and adopting different measures for security and border controls.

[20] CC, art. 421-1. These acts include attacks on life,physical integrity, abductions, hijackings, and theft and stockpiling ofexplosives. The article was incorporated into the CC in 1996 and was modifiedin 1998 and again in 2001.

[21] CC, art. 421-3.

[22]AntoineGarapon, “Is There a French Advantage in the Fight Against Terrorism?” ARI.

[23]HumanRights Watch,U.K.: Law Lords Rule Indefinite Detention Breaches HumanRights, December 16, 2004, http://hrw.org/english/docs/2004/12/16/uk9890.htm.

[24]HumanRights Watch interview with Jean-Louis Bruguière, former investigating judge,Paris, February 26, 2008.

[25]^JeremyShapiro and Bénédicte Suzan, “The French Experience of Counter-Terrorism,”Survival, vol. 45, no.1, Spring 2003, p. 78.

[26]There areeight positions in the division of specialized counterterrorism investigating judges; at the time of writing, however, there were only seven active judges.Human Rights Watch interview with Philippe Maitre, counterterrorism prosecutor, Paris, February 27, 2008. The judges tend to further specialize in differenttypes of terrorism (for example, international or Islamist, nationalist orseparatist).

[27]In earlyMarch 2008, the European Commission designated Bruguière to undertake a reviewof implementation of a cooperation agreement between the European Union and the United States in the fight against financing of terrorism. “EU Review of the United States’ ‘Terrorist Finance Tracking Programme,’” European Commission press release,March 7, 2008,http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/400&format=HTML&aged=o&language=en&guilanguage=en(accessed March 12, 2008).

[28]CraigWhitlock, “French Push Limits in Fight on Terrorism,”Washington Post,November 2, 2004.

[29]Shapiroand Suzan, “The French experience of counterterrorism.”

[30]HumanRights Watch interviews with Sébastien Bono, Paris, June 21, 2007, and February28, 2007; Henri De Beauregard, Paris, July 6, 2007; Fatouma Metmati, December 13, 2007; Bernard Dartevelle, Paris, June 21, 2007; Nicolas Salomon, Paris, July 5, 2007; Sophie Sarre, Paris, July 6, 2007; Antoine Comte, Paris, May 10, 2007;Dominique Tricaud, Paris, December 10, 2007.

[31]InternationalCovenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316(1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by France on November 4, 1980, art. 14; European Convention for the Protection of Human Rightsand Fundamental Freedoms (ECHR), 213 U.N.T.S. 222, entered into force September 3, 1953, as amended by Protocols Nos 3, 5, 8, and 11 which entered into force on September 21, 1970, December 20, 1971, January 1, 1990, and November 1, 1998, respectively, art. 6.See also European Court of Human Rights judgments:Dombo Beheer B.V. v. theNetherlands, judgment of 27 October 1993, Series A no. 274, p. 19, § 33;Ankerl v. Switzerland, judgment of 23 October 1996, Reports1996-V, pp. 1567-68, § 38;Ruiz Mateos v. Spain, judgment of 24 June1993, Series A no. 262, p. 25, § 63;Nideröst-Huber v. Switzerland,judgment of 18 February 1997, Reports 1997-I, p. 108, § 24; andBeer v.Austria, no. 30428/96, § 17, 6.2.2001.

[32] Human Rights Watch interview with Sébastien Bono,defense attorney, Paris, February 28, 2008.

[33]Thisprocedure is laid out in article 114 of the Code of Criminal Procedure.

[34]HumanRights Watch interview, defense attorney who requested anonymity, Paris, February 28, 2008.

[35]NationalAssembly, Rapport No. 3125, June 6, 2006, p. 397.

[36] CCP, art. 186-1.

[37]HumanRights Watch interview with Dominique Tricaud, defense attorney, Paris, December 10, 2007.

[38] “Extraits d’un proces antiterroriste des presumes membres de la ‘cellule francaise’ du ‘GICM’ (‘Groupe islamique combattant marocain’) et presumessoutiens financier et logistique aux attentats de Casablanca,” http://paris.indymedia.org/IMG/pdf/doc-46372.pdf (accessed January 28, 2008). Translation by Human RightsWatch.

[39] Jon Boyle, “France trumpets anti-terror laws,” Reuters, August 25, 2006.

[40]CC, art.421-2-1.

[41] European Court of Human Rights,Kokkinakis v.Greece, Judgment of May 25, 1993, Series A, no. 260-A, available at www.echr.coe.int,para. 52.

[42] European Commission for Human Rights,Karatas andSari v. France, no. 38396/97, Partial decision on admissibility, 21 October1998.

[43]^The caseinvolved two Turkish nationals, Dursun Karatas and Zerrin Sari, who were convicted in absentia in France in 1997 of association de malfaiteurs for membership in a Marxist-Leninist Turkish group the court defined as terrorist. It is interestingto note that the Court of Appeal in Antwerp, Belgium, acquitted Karatas and Sari of membership in a terrorist cell on February 7, 2008. See Thomas Renard, “Presence ofTurkish Terrorists in Belgium Leads to Dispute with Ankara,”Terrorism Focus, vol. 5, issue 13, April 1, 2008, http://www.jamestown.org/terrorism/news/article.php?articleid=237070 (accessed May 8, 2008).

[44] Federation Internationale des Droits de l'Homme(FIDH), “France: paving the way for arbitrary justice,” no. 271-2, March 1999,http://www.fidh.org/IMG/pdf/271fran.pdf (accessed October 10, 2005), pp. 9-10.

[45]HumanRights Watch interview with Philippe Maitre, February 27, 2008.

[46]SeeECtHR,Klass and Others v. Germany, judgment of 6 September, 1978, Series A28;Rotaru v. Romania, judgment of 4 May 2000, Reports of Judgmentsand Decisions 2000-V;Larissus and Others v. Greece, judgment of 24February 1998, Reports of Judgments and Decisions 1998-I; and MetropolitanChurch of Bessarabia, judgment of 13 December, 2001, Reports of Judgments andDecisions 2001-XII. All judgments are available at www.echr.coe.int.

[47]HumanRights Watch interview with JLD #3, Paris, February 27, 2008.

[48]Ibid.

[49]HumanRights Watch interview with JLD #1, Paris, February 1, 2008.

[50]HumanRights Watch interview with Nicolas Salomon, defense attorney, Paris, July 5, 2007.

[51]LaurentBonelli, “An ‘anonymous and faceless’ Enemy. Intelligence, exception andsuspicion after September 11, 2001,”Cultures and Conflicts, no. 58(2005), pp. 101-129. Bonelli is a researcher at the University of Paris-X (Nanterre) and a member of the French team of the European Commission programme “TheChanging Landscape of European Security.”

[52]HumanRights Watch interview with Jean-Louis Bruguière, February 26, 2008.

[53]The sameterm is used to describe the round-ups of Jews during the Second World War inoccupied France.

[54]HumanRights Watch interview with counterterrorism official who requested anonymity, Paris, December 12, 2007.

[55] Ibid.

[56] Human Rights Watch interview with RenseignementsGeneraux official who requested anonymity, Paris, June 30, 2006.

[57]Of the 27individuals brought to trial, 24 were convicted of association de malfaiteurs,while three were acquitted of this charge.

[58] Human Rights Watch interview with Rachida Alam, Paris, January 29, 2008.

[59] Human Rights Watch telephone inquiry to the Centresd’Etudes Statistiques sur la Securite (Center for Statistical Studies on Security), Paris, February 15, 2008.

[60] EUROPOL, “Terrorist Activity in the European Union,Situation and Trends Report, October 2004-October 2005,” May 2, 2006, p. 23.

[61] EUROPOL, EU Terrorism Situation and Trend Report2007, March 2007, http://www.europol.europa.edu/publications/EU_Terrorism_Situation_and_Trend_Report_TE-SAT/TESAT2007.pdf (accessed February 21, 2008), p. 16; andEUROPOL, EU Terrorism Situation and Trend Report 2008, April 2008,http://www.europol.europa.edu/publications/ EU_Terrorism_Situation_and_Trend_Report_TE-SAT/TESAT2008.pdf(accessed April 9, 2008), p. 11.

[62] Nicolas Sarkozy, then-minister of the interior, speech to day-long conference, “Prevailing against Terrorism” (Les Francais face au terrorisme), November 17, 2005, http://www.interieur.gouv.fr/misill/sections/a_l_interieur/le_ministre/interventions/archives-sarkozy-2005-2007/17-11-2005-seminaire-terrorisme/view (accessed January 30, 2006).

[63]AntoineGarapon, “Les dispositifs antiterroristes de la France et des Etats-Unis,”Revue Esprit (Paris), August/September 2006, p. 137.

[64]HumanRights Watch interview with William Bourdon, defense attorney, Paris, October 5, 2005.

[65]Law2000-516 of 15 June 2000, art. 48.

[66]CCP, art.144.

[67]Ibid.,art. 706-24-3, in conjunction with art. 145-1.

[68]Ibid.,art. 145-2.

[69] Ibid., art. 138.

[70] Ibid., art. 148.

[71] National Assembly, Report No. 3125, June 6, 2006, p.223.

[72]HumanRights Watch interview with Emmanuelle Perreux, president, Syndicat de laMagistrature, Paris, January 31, 2008.

[73]HumanRights Watch interview with JLD #2, Paris, February 26, 2008.

[74]Law no.2007-291 of 5 March 2007, article 10 modifying article 145 of the Code of Criminal Procedure.

[75]NationalAssembly Law Commission, Report No. 3499 on the bill concerning training andresponsibility of judges, by Representative Philippe Houillon, December 6, 2006, http://www.assemblee-nationale.fr/12/pdf/rapports/r3499.pdf. (accessed March 10,2008), p. 221.

[76]HumanRights Watch telephone interview with JLD #3, Paris, March 28, 2008. Thedefense has the right to request a delay as well, and the JLD stressed thatthis occurs often, perhaps even one-fourth of the time, and that the JLD mustgrant the delay in these cases.

[77] Human Rights Watch interview with JLD #2, Paris, February 26, 2008.

[78] Human Rights Watch interview with JLD #3, Paris, February 27, 2008.

[79]HumanRights Watch interview with JLD #1, Paris, February 1, 2008.

[80]HumanRights Watch interview with JLD #3, Paris, February 27, 2008.

[81] Human Rights Watch interview with JLD #1, Paris, February 1, 2008.

[82] Human Rights Watch telephone interview with Hamouni’slawyer, Mahmoud Hebia, Lyon, March 31, 2008. Hamouni told Human Rights Watchthat an immigration official in Japan informed Hamouni by phone that he wouldnot receive a visa unless found innocent in a French court of law. HumanRights Watch telephone interview with Hamouni, Algiers, June 11, 2008.

[83]HumanRights Watch interview with counterterrorism official who requested anonymity, Paris, December 12, 2007.

[84]Thepotential for conflict between these two roles was highlighted in September 2006 when a judge suspended the trial of six former Guantanamo Bay detainees after it cameto light that DST agents had interrogated the men at Guantanamo. The defenseargued that the interrogations were illegal because the agents had acted intheir capacity as judicial police, collecting information later used to justifythe judicial investigation against the men, but without disclosing the material to the defense as required. The judge ultimately accepted the prosecution’s argument thatthe DST agents had acted in their capacity as intelligence officers and there had been no breach of the rules of procedure with respect to disclosure ofevidence.

[85] See United Kingdom Home Office, “Terrorist investigations and the French examining magistrate’s system,” July 2007, http://www.security.homeoffice.gov.uk/news-publications/publication-search/counter-terrorism-bill-2007/examining-magistrates.pdf?view=Binary(accessed August 5, 2007).

[86]JeanChichizola, “France-Algerie: Paris soupconnee d’avoir livre un islamiste aAlger,”Le Figaro (Paris), February 13, 2006.

[87]AmnestyInternational, “Algeria: Torture in the ‘War on Terror,’ A Memorandum to theAlgerian President,” April 2006,http://www.amnesty.org/en/library/asset/MDE28/008/2006/en/MDE280082006en.html(accessed January 10, 2008).

[88]UNWorking Group on Arbitrary Detention, Opinion No.38/2006 (Algeria), adopted Nov ember 21, 2006, A/HRC/7/4/Add. 1., January 16, 2008.

[89]AmnestyInternational, “Memorandum to the Algerian President.”

[90]AmnestyInternational, “Unrestrained Powers: Torture by Algeria’s Military Security,” AI Index: MDE 28/004/2006, July 10, 2006,http://web.amnesty.org/library/index/ENGMDE280042006 (accessed September 1, 2006).

[91]HumanRights Watch interview with defense attorney who requested anonymity, Paris, February 28, 2008.

[92] Human Rights Watch interviews with Jean-LouisBruguière, Paris, February 26, 2008; and Philippe Maitre, February 27, 2008.

[93] Garapon, “Les dispositifs antiterroristes de la France et des Etats-Unis,”Revue Esprit,p. 137.

[94] European Commission for Democracy through Law (VeniceCommission), “Report on the Democratic Oversight of the Security Services,” CDL-AD(2007)016, Strasbourg, June 11, 2007, para. 213.

[95] Law 2007-1443 of 9 October 2007 creating aparliamentary delegation on intelligence, art. 1.

[96] European Court of Human Rights,Jalloh v. Germany[GC],no. 54810/00, judgment of 11 July 2006, ECHR 2006-IX, available atwww.echr.coe.int, para. 105.

[97]HumanRights Watch interview with two counterterrorism officials who requestedanonymity, Paris, December 12, 2007; Human Rights Watch interview with RG officer who requested anonymity, Paris, June 30, 2006.

[98]HumanRights Watch interview with two counterterrorism officials who requestedanonymity, December 12, 2007.

[99]HumanRights Watch interview with Jean-Louis Bruguière, February 26, 2008.

[100] HumanRights Watch interview with Philippe Maitre, February 27, 2008.

[101]HumanRights Watch interview with Sakina Beghal and Djamel Beghal’s defense attorney(who requested anonymity), Paris, February 26, 2008.

[102] Written statement from Djamel Beghal, March 27, 2007,on file with Human Rights Watch.

[103] Ibid.

[104]Courtrecords indicate that Beghal was extradited to France on October 1, 2001, andthat his first hearing with the judge took place on October 1, 2001.

[105]Tribunal de Grande Instance de Paris, 10eme Chambre, Jugement du 15 mars 2005, No.D’affaire : 0125339022, Ministere Public c/Daoudi, Beghal, Bounour etautres (Beghal judgment), p. 142. The doctor concluded that the marks onBeghal’s foot “suggest mechanical injuries due to old and repetitive pressure.”On file with Human Rights Watch.

[106]AbuZubaydah, whose name in French court documents is written as Abou Zubeida, isbeing held at the US military detention center at Guantanamo Bay. He is accused of being a high-level al Qaeda recruiter.

[107]Beghaljudgment, p. 29.

[108]“TerrorVerdict for Soccer Pro,” CBS/AP, September 30, 2003,http://www.cbsnews.com/stories/2003/09/30/attack/main575815.shtml(accessed May 26, 2008).

[109] Abu Doha, an Algerian national, is currently in prison in the UK fighting extradition to the US on charges that he masterminded the failed attackon Los Angeles international airport in 1999. Abu Qatada is a Jordaniannational currently under virtual house arrest in the UK after an appeals courtruled that his deportation to Jordan would breach the UK’s obligations under the European Convention on Human Rights. For more information abouthis case, see “UK: Appeals Court Blocks National Security Deportations,” HumanRights Watch news release, April 9, 2008,http://hrw.org/english/docs/2008/04/08/uk18478.htm; “UK: Abu Qatada RulingThreatens Absolute Ban on Torture,” Human Rights Watch news release, March 1,2007, http://hrw.org/english/docs/2007/03/01/uk15437.htm; and “UK/Jordan:Torture Risk Makes Deportations Illegal: Agreement Bad Model for Region,” HumanRights Watch news release, August 16, 2005, http://hrw.org/english/docs/2005/08/16/jordan11628.htm.

[110]Beghaljudgment, p. 149.

[111]Courd’Appel de Paris, 10eme chambre, section A, Arret du 14 decembre 2005, Dossier No. 05/02518, p. 17. On file with Human Rights Watch.

[112]HumanRights Watch interview with defense lawyer who requested anonymity, Paris, February 26, 2008.

[113]Tribunal de Grande Instance de Paris, 14eme Chambre, Jugement du 14 juin 2006, No.D’affaire : 0231239035, Ministere Public c/Marbah, Lebik, Benhamed etautres (Chechen network judgment), p. 89. On file with Human Rights Watch.

[114] Document 3685, evidence submitted at trial, cited in Bono’s written conclusions, p. 71. On file with Human Rights Watch.

[115] Chechen Network judgment, p. 66.

[116] Proces-Verbal d’Interrogatoire, September 13, 2004, T ribunal de Grande Instance de Paris, Ref.Gen: 02.312.3903/5, Ref. Cab. : 1449. On file with Human RightsWatch. Translation by Human Rights Watch.

[117] Human Rights Watch,World Report 2008, chapteron Syria, http://hrw.org/englishwr2k8/docs/2008/01/31/syria17619.htm. See alsoUS Department of State, Bureau of Democracy, Human Rights, and Labor, “CountryReports on Human Rights Practices – 2007: Syria,” March 11, 2008,http://www.state.gov/g/drl/rls/hrrpt/2007/100606.htm (accessed May 19, 2008).

[118] Chechen Network judgment, p. 65.

[119]Ibid., p.189.

[120] As cited in Bono’s written conclusions, p. 26. Thejudgment also referred to Mérouane Benahmed, another defendant in the ChechenNetwork trial, in the same terms. Benahmed was convicted of association demalfaiteurs and sentenced to 10 years in prison.

[121]MaamarOuazane, for example, claimed at trial that he was psychologically abused during police custody and pretrial detention. He told the court that the investigating judge hadtold him that he would be released from pretrial detention if he confirmed hisstatements and then fled France “in order to avoid any cross-examination,”otherwise he would “rot in prison.” Ouazane’s lawyer told the court that he wasnot at liberty to comment on his client’s declarations but “underline[d] thathis client had been released quickly.” From Cour d’Appel de Paris, Arret du 22 mai 2007, Dossier No. 06/05712, p. 46 and p. 77. On file with Human RightsWatch. Ouazane, who had been placed in pretrial detention in January 2005, wasreleased by order of the investigating judge in November 2005. He waseventually convicted and sentenced to two years’ imprisonment and a five-yearban on entering French territory; the Appeals Court increased his sentence tofour years in prison and a permanent ban on entering French territory. When asked by Human Rights Watch about Ouazane, the investigating judge said, “I willnot answer that question, everything was done within a legal framework with hislawyer.” Human Rights Watch telephone interview with investigating judge, April 15, 2008.

[122] Chechen network judgment, p. 70.

[123] Appeals Court judgment of 22 May 2007, p. 73.

[124] Ibid., p. 89.

[125] Human Rights Watch email correspondence withSébastian Bono, Paris, March 19, 2008.

[126]“Menaceterroriste emanant d’un groupe de moudjahidin ayant combattu en Tchetchenie,suspectible de constituer l’infracton d’associaiton de malfaiteurs ayant pourobject de preparere des actes de terrorisme," DST report from Louis Caprioli, deputy director of the DST, November 6, 2002, p. 12. On file with Human Rights Watch.French court documents refer to him as Abou Attiya.

[127]AppealsCourt judgment of 22 May 2007, p. 100.

[128]Ibid., p.81. The Appeals Court sentenced Khalid to six years in prison and a permanentban from French territory. The lower court had sentenced Khalid to five yearsin prison.

[129]See HumanRights Watch,Suspicious Sweeps: the General Intelligence Department andJordan’s Rule of Law Problem, vol. 18, no. 6(E), September 2006,http://www.hrw.org/reports/2006/jordan0906/jordan0906web.pdf; and Human RightsWatch,Double Jeopardy: CIA Renditions to Jordan, ISBN: 1-56432-300-5,April 2008, http://hrw.org/reports/2008/jordan0408.

[130]HumanRights Watch interview with Adnan Muhammed Sadiq Abu Najila, Swaqa, Jordan, August 21, 2007.

[131] Human Rights Watch interview with formerinvestigating judge, February 26, 2008.

[132]HumanRights Watch telephone interview with former investigating judge, April 15, 2008.

[133]EuropeanCourt of Human Rights,Barbera, Messegue and Jabardo v. Spain, judgment of 6 December 1988, Series A no 146, available at www.echr.coe.int, para. 77.

[134]HumanRights Watch email correspondence with Judge Jean-Claude Kross, Paris, February 21, 2008.

[135] Human Rights Watch interview with Philippe Maitre,February 27, 2008.

[136]Europol,TE-SAT reports 2007 and 2008, p. 16 and p. 14, respectively. The overallacquittal rate in all types of terrorism cases throughout the EU was 15 percentin 2006 and 26 percent in 2007.

[137] Human Rights Watch interview with William Bourdon,defense attorney, Paris, October 5, 2005.

[138]Article721 of the CCP guarantees that all those sentenced to a prison termautomatically benefit from a remission of sentence of three months for thefirst year and two months for every year after that. This means that anindividual sentenced to three years in prison would automatically benefit froma seven-month reduction and be required to serve only two years and fivemonths. The CCP also provides for earned remission of sentence for goodbehavior (art. 721-1).

[139]Beghaljudgment, pp. 63-79, pp.96-147.

[140] HumanRights Watch interview with Salima Benmessahel, Paris, January 29, 2008.

[141] HumanRights Watch interviews with Sébastien Bono, defense attorney, Paris, July 3, 2007, and February 28, 2008.

[142]Of thesesixteen, nine were acquitted of all charges, like Kinai, while seven were convicted of minor c rimes. Kinai’s first name is spelled Abdallah in all French court documents.

[143]Stuttgart Higher Regional Court ruling of April 7, 2003, quoted in Abdellah Kinai’s complaint to the European Court of Human Rights against France for violations of articles 5, 6, 7 and 8, filed in August 2003. Four years later, onSeptember 11, 2007, the Court rejected the complaint as inadmissible. Original in German, translation by Human Rights Watch.

[144]French lawallows for a retrial in cases where the conviction was handed down in absentia.

[145]HumanRights Watch telephone interview with John Norris, Ouzghar’s lawyer, Toronto, May 2, 2008. The case raises interesting issues of jurisdiction because all ofOuzghar’s alleged criminal acts took place in Canada. As his lawyer said, “Atthe time, Ouzghar is in Montreal. A guy comes from Turkey and ends up withOuzghar’s passport. The alteration of the passport took place in Belgium, and the man who tried to use Ouzghar’s passport was stopped in Taiwan on his way to Canada. There’s absolutely no connection to France.”

[146]CCP, art.149.

[147]“Demandfor reparation on behalf of Saliha Lebik and Sarah Behahmed,” December 4, 2007. On file with Human Rights Watch. Human Rights Watch email correspondence withIsabelle Coutant-Peyre, lawyer for Saliha Lebik, Paris, May 27, 2008.

[148]Policecustody in terrorism cases in select European countries: Spain and Italy—5 days; Denmark and Norway—3 days: Germany—48 hours. Pre-charge detention in terrorism cases in the United Kingdom, which operates a common law system, is 28 days, and at this writing the government had introduced draft legislation to allow for 42-day pre-charge detentionin some cases. For an analysis of our concerns, see Human Rights Watch,UK: Counter the Threat or Counterproductive? Commentary on ProposedCounterterrorism Measures, no. 1, October 2007,http://www.hrw.org/backgrounder/eca/uk1007/uk1007web.pdf.

[149]CCP, art.706-88 (as amended by Law No. 2006-64 of 23 January 2006, art. 17).

[150]HumanRights Watch interview with Philippe Maitre, February 27, 2008. At this writing, no terrorism suspect had yet been held for the full six days.

[151]CCP, art.63.

[152] Ibid., art. 63-2.

[153] CCP, art. 63-4.

[154] Law 2007-291 of March 5, 2007, arts. 14 and 15. Thesearticles entered into effect in June 2008.

[155]NationalAssembly, Rapport No. 3125, June 6, 2006, p. 311.

[156]See theparliamentary debates of December 19, 2006, at http://www.assembleenationale.org/12/cri/2006-2007/20070100.asp.

[157] The Human Rights Committee held that the provision ofthe UK’s Terrorism Act 2000 allowing suspects to be detained for 48 hourswithout access to a lawyer was of “suspect compatibility” with articles 9 and14 of the ICCPR. CCPR/CO/73/UK, para. 19 (2001); the European Court of HumanRights similarly held that article 6 of the ECHR applies even in the preliminary stages of a police investigation. In theImbroscia v. Switzerland judgment, theCourt stated that “[c]ertainly the primary purpose of Article 6 as far as criminal matters are concerned is to ensure a fair trial by a ‘tribunal’ competent to determineany criminal charge,but it does not follow that the Article (Art.6) has noapplication to pre-trial proceedings,” and that the requirements of article6(3), including the right to legal assistance, “may … be relevant before a caseis sent to trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them.”Imbrosciav. Switzerland, Judgment of November 24, 1993, Series A, No. 275, availableat www.echr.coe.int, para. 36.

[158]EuropeanCourt of Human Rights,Murray v. United Kingdom, Judgment of 8 February1996, Reports of Judgments and Decisions 1996-I, available at www.echr.coe.int,para. 66.

[159] Basic Principles on the Role of Lawyers, adopted atthe Eighth United Nations Congress on the Prevention of Crime and the Treatmentof Offenders, Havana, 27 August to 7 September 1990, U.N. Doc.A/CONF.144/28/Rev.1 at 118 (1990), number 8.

[160]EuropeanCommission, Green Paper from the Commission, Procedural Safeguards for Suspectsand Defendants in Criminal Proceedings throughout the European Union, COM(2003)75, February 19, 2003, http://eur-lex.europa.eu/LexUriServ/LexUriserv.do?uri=COM:2003:0075:FIN:EN:PDF (accessed February 15, 2008), para. 4.3(a).

[161]HumanRights Watch interview with Henri Leclerc, defense attorney, Paris, October 5, 2005.

[162] Human Rights Committee, Concluding Observations ofthe Human Rights Committee: France, 04/08/97, CCPR/C/79/Add.80, 4 August 1997,para. 23.

[163]Report byMr. Álvaro Gil-Robles, Council of Europe Commissioner for Human Rights, on theEffective Respect for Human Rights in France following his visit from 5 to 21September 2005, CommDH (2006)2, February 15, 2006, para. 54.

[164]EuropeanCommittee for the Prevention of Torture and Inhuman or Degrading Treatment orPunishment (CPT), reports on visits conducted in 1996, 2000, 2003, and 2006.All CPT reports on France are available athttp://www.cpt.coe.int/en/states/fra.htm.

[165]HumanRights Watch interview with Fatouma Metmati, defense attorney, Paris, December 13, 2007.

[166]HumanRights Watch interview with Nicolas Salomon, defense attorney, Paris, July 5, 2007.

[167]SeeConseil National des Barreaux, “La garde a vue dans tous ses etats,” Les Cahiersdu Conseil National des Barreaux, May 2005, pp. 121-123.

[168]The vastmajority of Basque and Corsican terrorism suspects, by contrast, appear to beassisted by private lawyers from the first contact in garde a vue.

[169] Human Rights Watch interview with Abdul N.(pseudonym), Paris, February 25, 2008.

[170]Ibid.

[171]Ibid.

[172]HumanRights Watch interview with Rachida Alam, Paris, January 29, 2008.

[173]Benyamina’scase is discussed in Chapter IV.

[174] Human Rights Watch interview with Emmanuel Nieto, Paris, February 28, 2008.

[175]Ibid.

[176]EuropeanCommission, Green Paper, para. 4.3(b).

[177]Law2000-516 of June 15, 2000, established that detainees were “immediately informed … [of] the right to not answer any questions”; Law 2002-307 of March 4, 2002,modified the language to ensure that detainees were told they had the “choiceto make statements, to answer questions posed to them or to keep silent.” Law2003-495 of March 18, 2003, deleted the provision entirely.

[178]Report byMr. Álvaro Gil-Robles, Effective Respect for Human Rights in France, February 15, 2006, para. 44.

[179] Conseil National des Barreaux, “La garde a vue danstous ses etats,” Les Cahiers du Conseil National des Barreaux, pp. 122-23.

[180] Constitutional Court Decision No. 2004-492 DC, March2, 2004, http://www.conseil-constitutionnel/fr/decision/2004/2004492/2004492dc.htm(accessed May 27, 2008), para. 33.

[181]HumanRights Watch email correspondence with Judge Jean-Claude Kross, Paris, February 21, 2008.

[182]HumanRights Watch interview with Dominique Tricaud, defense attorney, Paris, December 10, 2007.

[183] Human Rights Watch interview with Henri De Beauregard, defense attorney, Paris, July 6, 2007.

[184] Ibid.

[185] CCP, art. 63-3.

[186] Ibid., art. 706-88, as modified by Law No. 2006-64 of23 January 2006, art. 17.

[187]CCParticle 63-3 states that the medical certificate “must specifically state thefitness of the person to be held further in custody.” A 2004 conference on therole of forensic doctors concluded that the “principal mission of the doctor isto certify or not the fitness for continuing custody.” Conference de consensus:Intervention du medecin aupres des personnes en garde a vue. 2 et 3 decembre, Paris, “Texte des recommandations (version longe),” p. 13. Conference organized by theAgence nationale d’accreditation et d’evaluation en sante, Collegiale desmedecins legistes hospitaliers et hospitalo-universitaires, and the Societe deMedecine Legale et de Criminologie de France.

[188] See CPT reports on visits conducted in 1996, para.25; 2000, para. 36; and 2006, para. 16. All CPT reports on France are available at http://www.cpt.coe.int/en/states/fra.htm.

[189] Human Rights Watch interview with Emmanuel Nieto,February 28, 2008.

[190]Written statement from Abdellah Kinai, March 3, 2008, on file with Human Rights Watch.

[191]CPTreports on visits conducted in 1996, para. 41; 2000, para. 35.

[192]EuropeanCourt of Human Rights,Tomasi v. France, Judgment of 27 August 1992, Series A no. 241-A;Selmouni v. France [GC[, no. 25803/94, ECHR 1999-V; andRivas v.France, no. 59584/00 of 1 April 2004. The Court has found France in violation of article 2 of the Convention, guaranteeing the right to life, atleast once for death in custody and at least once for death at the time ofarrest resulting in part from physical abuse. SeeTais v. France, No. 39922/03 of 1 June 2006, andSaoud v. France, no. 9375/02 of 9 October 2007.In these two cases, having found a violation of article 2, the Court did notconsider separately whether there had been a violation of article 3. Availableat www.echr.coe.int.

[193] European Court of Human Rights,Tomasi v. France,judgment of August 27, 1992, Series A no. 241-A, available at www.echr.coe.int,para. 115.

[194] CPT, Rapport au Gouvernement de la Republiquefrancaise relatif a la visite en France effectuee par le Comite europeen pour la prevention de la torture et des peines ou traitements inhumains ou degradantsdu 14 au 26 mai 2000, CPT/Inf (2001) 10, July 19, 2001,http://www.cpt.coe/documents/fra/2001-10-inf-fra.pdf (accessed March 27, 2008),para. 16.

[195] Human Rights Watch interview with Abdul N., February25, 2008.

[196]HumanRights Watch interview with Nieto’s defense lawyer who requested anonymity, Paris, February 28, 2008.

[197]“Extraitsd’un proces antiterroriste des presumes membres de la ‘cellule francaise’ du‘GICM.’”

[198] Human Rights Watch interview with Fatouma Metmati,defense attorney for Mohammed Y. (pseudonym), Paris, December 13, 2007.

[199]“Demandfor Reparations on behalf of Saliha Lebik and Sarah Benahmed,” December 4, 2007. On file with Human Rights Watch. Lebik was separated from her six-month-old babyfor the duration of her time in police custody.

[200]Policedocument releasing Rachida Alam from custody at 2 a.m. on May 13, 2004, viewedby Human Rights Watch.

[201]Written statement to the Comite citoyen d’action civique (Citizens Committee for Civic Action), published in “Une Justice d’Exception pour Les Musulmans?” May 2006. On file withHuman rights Watch.

[202]HumanRights Watch submitted this allegation in writing in late May 2008 to theinvestigating judge asking for his response by June 6, 2008. The letter wasmailed on May 29, 2008, by US Postal Service registered mail; emailed to twoseparate email addresses on the same day; and faxed on June 2, 2008. At thetime of publication, the judge had not responded.

[203] Human Rights Watch interview with Emmanuel Nieto,February 28, 2008.

[204] Human Rights Watch interview with Nieto’s defenselawyer, who requested anonymity, February 28, 2008.

[205]Ibid.

[206] Written testimony of Virginie Geneix, dated March 16,2006, Bordereau de pieces communiquees no. 1 submitted to the court March 31,2006 as on file with Human Rights Watch.

[207]HumanRights Watch email correspondence with Sébastien Bono, Paris, May 26, 2008.

[208]Written statement of Abdellah Kinai, on file with Human Rights Watch.

[209]Orderremanding Tlili Lazhar into pretrial detention (Ordinanza di Applicazione dellaMisura della Custodia Cautelare in Carcere), June 4, 2007, signed byinvestigating judge Guido Salvini, Milan Tribunal. Lazhar was held in policecustody in France for four days. The five days he refers to include the extra 20 hours granted police for transferring detainees to the appropriate investigating judge.

[210]Ibid.

[211]Letterdated January 17, 2008, signed by François Cordier, deputy prosecutor,Prosecutor’s Office of the Tribunal de Grande Instance of Paris. On file with Human Rights Watch.

[212]Rapportau gouvernement de la Republique francaise relatif a la visite en Franceeffectuee par le Comite europeen pour la prevention de la torture et des peinesou traitements inhumains ou degradants du 14 au 26 mai 2000, para 32.Unofficial translation by Human Rights Watch

[213]At thetime of publication, a bill had been laid before parliament to ratify theOptional Protocol.

[214]Law No.2007-1545 of 30 October 2007 creating an Inspector General of Places of Deprivation of Liberty.

[215]Ibid.,art. 8.

[216] Speech to day-long conference, “Prevailing againstTerrorism” November 17, 2005.

[217]HumanRights Watch interview with Bilal M. (pseudonym), Paris, February 25, 2008.

[218]DominiqueDe Villepin, Prevailing against Terrorism: White Paper on Domestic Security against Terrorism, La Documentation Francaise, 2006, p. 115,http://www.ambafrance-dk.org/IMG/pdf/livre_blanc_english.pdf (accessed March18, 2008). Then-Prime Minister De Villepin commissioned this inter-agencyassessment of the terrorist threat and France’s counterterrorism policy.

[219]HumanRights Watch interviews with Salima Benmessahel, January 29; Rachida Alam, Paris, January 29; Abdul N., February 25; Bilal M., February 25; and Emmanuel Nieto,February 28, 2008.

[220]HumanRights Watch interview with counterterrorism official who requested anonymity, Paris, December 12, 2007.

[221] Human Rights Watch interview with Salima Benmessahel,January 29, 2008.

[222]HumanRights Watch interview with Abdul N., February 25, 2008.

[223] HumanRights Watch interview with Doudou F. (pseudonym), Paris, December 11, 2007.

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