By Patrick O'Connor QC,
In the last 30 months, France has suffered about 240 deaths and 860 injuries from terrorist atrocities. A number of criminal trials are pending, arising out of these incidents. Most prominently, Salah Abdesalem faces trial for multiple murder and related offences concerning the November, 2015, Paris attacks. There are many others. The most emotive cases test the fundamental legal values of a society. What will we learn about the French criminal justice system? Might we see the conviction of a muslim Dreyfus?
The French Foreign Ministry web-site states: “Terrorism cases in France are investigated under judicial supervision and prosecuted and tried in regular courts. Specialist anti-terrorist prosecution services have been set up and the anti-terrorist branch of the Paris prosecutor’s office has nationwide competence. Judges in terrorism trials are not specialists, though the jury is made up of professional judges, the evidentiary system is modified and the penalties are harsher.”
A 2008 Human Rights Watch report, “Preempting Justice, Counter Terrorism Laws and Procedures in France” painted a grimmer picture. Since 1986, specialist investigating judges and prosecutors have handled these cases, and there has been no trial by jury. A very broadly defined charge of “criminal association in relation to a terrorist undertaking” (association de malfaiteurs en relation avec une entreprise terroriste), is used predominantly. This gives the authorities the ability to take preemptive action well before the commission of a substantive crime. As Christophe Chaboud, the head of the special anti-terrorism unit of the Ministry of Interior stated in mid-October 2005, “Our strategy is one of preventive judicial neutralization.”
The Report quotes Jean-Louis Bruguière, France’s most famous and controversial counterterrorism judge (now retired) as praising the flexibility of the French system by contrast with the common- law. Unfortunately one of his more extreme experiments was an embarrassing failure. In September, 1998, as examining judge, he decided that 138 defendants should be tried jointly in the ‘Chalabi’ trial in a gymnasium on ‘association de malfaiteurs’ charges, connected with alleged Algerian Islamic terrorism. The Defendants and their lawyers refused to participate. 51 were acquitted. The ‘inflexible’ common law courts have long ago disapproved of trying for example, even four accused on 19 counts: and 14 accused on 10 counts: see Novac (1976) 65 Cr App R 107 and Thorne (1977) 66 Cr App R 6.
HRW report that almost all Defence requests for pre- trial investigative steps to be taken are refused. Restrictions are imposed upon the defence lawyers providing a copy of the case papers to their clients. A defence lawyer in the Charouali trial, involving alleged links with Moroccan extremism, complained to HRW that he was paid €450 in total for a case involving 78 volumes of papers, requiring by his estimate 541 hours of work.
HRW made four recommendations: a more careful definition of the ‘criminal association’ offence: better custody safeguards for the suspect, including following up complaints of mistreatment: and ensuring the exclusion of evidential product of torture.
As the expert Professor Jackie Hodgson noted in her blog of 18.11.11., a challenge by defence lawyers to a new ‘garde a vue’ regime for suspects in police custody, was rejected by the ‘Conseil constitutionel.’
“In particular, they criticised the absence of any right to consult the dossier before an interview or confrontation, or to take copies of the evidence; the possibility to interview the suspect before the lawyer arrives; the limit of 30 minutes for the lawyer-client consultation; and the restriction of legal assistance to interviews and confrontations, to the exclusion of other acts of investigation such as searches. The power of the police to prevent the lawyer asking questions and to terminate an interview and ask for a replacement lawyer is also objected to, alongside the power to delay the suspect's access to a lawyer.”
This ruling arguably flies in the face of the ECtHR Grand Chamber decision in Salduz v Turkey, 27.11.08., Appl. No. 36391/ 02, to the effect that Articles 6.1 and 6.3 protections are closely engaged by lack of police custody and interrogation safeguards.
More broadly, the Professor and FIDH have said of the regime for questioning terrorism suspects, that there is no tape recording of interviews: there is no attempt to produce a verbatim record of the questions and answers, e..g. ‘10 page summaries of 5 or 6 hours of interviews’: suspects are not told of their right of silence, or cautioned: access to legal advice is delayed and confined to a very short visit: police interviews are unregulated and supervision by the Examining Magistrate is normally conducted by telephone, or another remote way: questioning techniques are used which would be unacceptable to an English court, and which are apt precisely to produce unreliable confessions: even threats and bullying tactics by police officers in front of Prof Hodgson during her research for her book: passages of long and complex multiple questions are asked, with the suspect being invited to comment at the end: in interviews by a Juge d’instruction, interventions by defence lawyers are given short shrift: there have been concrete and high profile exposed miscarriages of justice in France arising out of this interrogation regime: e.g. the Outreau, Pierrot and Dils cases: interrogations in terrorism cases are especially problematic: ‘it is impossible to evaluate the production or the credibility of the evidence produced.’: the procureur often keeps control of the case at the GAV stage to enable more extended police questioning, so that more pressure can be put on the suspect.
As for the pre-trial and trial procedures, they are dominated by the content of the ‘requisitoire’ which is distilled by the procureur, from the ‘dossier’, under supervision of the JI. The Defence have almost no role pre-trial in the assembly of that document or otherwise. Defence lawyers are inhibited in practice from investigating and gathering evidence for the trial. Defence lawyers are severely underfunded and simply cannot adequately prepare for trial: e.g. £70 for a two month trial. Information from intelligence services is accepted too readily by the Juges pre-trial and at trial: and often appears in the final judgement. Defence lawyers play an almost entirely passive role at trial. The Defence cannot summons witnesses and are in the hands of the Judge as to the calling of witnesses. Even where the credibility of witnesses is critical to a central dispute at trial, the Judge is liable to refuse to call the witness for questioning. Live evidence is the exception rather than the rule.
There is a high threshold at trial for the defence to challenge the contents of the dossier or requisitoire. ‘Confession evidence is of central importance, and once made during the GAV, admissions are almost impossible to displace during the judidical enquiry.’ The whole inquisitorial system ‘does not rest upon equality between the parties’: and the formal commitment to such equality is not effective in practice. There is no jury. There is a lack of independence between ‘the functions of prosecution, investigation and of judgement.’ There is concern about the attitudes and case hardening of the few specialist JIs who handle all these cases, which is sufficient to undermine the presumption of innocence: and about the close relationship between the procureur and the JI, which is an outstanding characteristic of terrorism investigations. The Judgment of the trial court rarely contains transparent reasoning, and often reproduces large parts of the ‘requisitoire’.
A more specific instance of defective process is provided by the case of Marbah and 26 others, in which the judgment of the Court of First Instance in Paris was delivered on of 16.6.06. They faced a range of charges, including ‘association des malfaiteurs’. The prosecution relied heavily upon alleged confessions to the police and the juges d’instruction. The Defence explanations for the ‘confessions’ included allegations of violence by police officers, and pressure or ‘arrangements’ with the juges d’instruction. Not only were no police officers or juges d’instruction called, but there were clear rulings refusing defence requests for them to attend for questioning.
The Court found that the Defence explanations were ‘unproven’. This accurately reflects the approach of the Paris Court. As in all these cases, there was no record anywhere of exactly what was said by these suspects under interrogation. There was no tape recording, or other verbatim record. A short summary of the relevant exchanges with the police or the JI will have been prepared: which will have been processed into the dossier: which will have been re-processed into the ‘requisitoire’: which has then been read to the trial court.
The judgment does not record the circumstances under which these statements were made: to whom: at what time of day: after how long a detention: and how much questioning: whether suggestions were forcefully put or whether they were spontaneous etc. This effectively means that the Paris Court and the Commission were acting upon ‘confessions’ which may well have been obtained by acts of violence or threats and inducements.
Perhaps, on what is publicly known about his case, Abdesalem will be an unlikely Dreyfus figure. However, there may regrettably be many more suitable candidates.