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Executive Summary Since the mids, when it suffered a wave of terrorist attacks, France has refined a preemptive criminal justice approach to countering terrorism, which many of its officials regard as a model worthy of emulation elsewhere. France's approach is characterized by the aggressive prosecution of alleged terrorist networks operating on French territory.
It is founded on close cooperation between specialized prosecutors and investigating judges and the police and intelligence services, coupled with limitations on the procedural guarantees that apply to ordinary crimes. Central to this preemptive approach is the broadly defined offense of "criminal association in relation to a terrorist undertaking" association de malfaiteurs en relation avec une entreprise terroriste, hereafter "association de malfaiteurs".
Established as a separate offense init allows the authorities to intervene with the aim of preventing terrorism well before the commission of a crime. No specific terrorist act need be planned, much less executed, to give rise to the offense. Intended to criminalize all preparatory acts short of direct complicity in a terrorist plot, an association de malfaiteurs charge may be leveled for providing any kind of logistical or financial support to, or associating in a sustained fashion with, groups allegedly formed with the ultimate goal of engaging in terrorist activity.
French counterterrorism officials argue that the flexibility of the French criminal justice system allows the authorities to adjust legal responses to address effectively the threat of international terrorism.
Even some analysts who recognize that this has led to a trade-off in rights contend that the government's ability and willingness to adapt the system has averted the need to resort to extrajudicial or administrative measures in the fight against terrorism, such as those pursued by the United States and United Kingdom governments, which they argue have far worse consequences for rights protection.
Human Rights Watch is convinced that effective use of the criminal justice system is the best way to counter terrorism.
But too much flexibility in the system will stretch the rule of law to the breaking point. France's duty to protect its population from acts of terrorism is matched by its obligations under European and international human rights law to ensure that measures taken to counter terrorism are compatible with coexisting human rights protections, including the rights of those deemed to pose a threat.
In practice, French counterterrorism laws and procedures undermine the right of those facing charges of terrorism to a fair trial. The broad definition and expansive interpretation of association de malfaiteurs translate into a low standard of proof for decisions to arrest suspects or to place them under investigation by a judge.
Indeed, casting a wide net to ensnare large numbers of people who might have some connection with an alleged terrorist network has been one of the characteristics of investigations into association de malfaiteurs. Once arrested, terrorism suspects may be held in police custody for four days, and in certain circumstances up to six days, before being brought before a judge to be placed under judicial investigation or released without charge.
Suspects are allowed to see a lawyer for the first time only after three days in custody four days in some casesand then only for 30 minutes.
The lawyer does not have access to the case file, or information about the exact charges against his or her client, leaving little scope for providing legal advice.
Suspects may be subjected to oppressive questioning, at any time of the day or night, without a lawyer present.
Police are under no obligation to inform suspects of their right to remain silent. Testimonies from people held in police custody on suspicion of involvement in terrorism suggest that sleep deprivation, disorientation, constant, repetitive questioning, and psychological pressure during police custody are common.
There are credible allegations of physical abuse of terrorism suspects in French police custody.
Limited access to a lawyer during police custody makes suspects vulnerable to ill-treatment in detention.S&P Global Market Intelligence is a leading provider of multi-asset class data and research, delivered through innovative platforms, and coupled with insightful analysis. (a) Except as authorized by law, possession of not more than grams of cannabis, or not more than eight grams of concentrated cannabis, or both, shall be punished or adjudicated as follows.
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