France has been a target of international terrorism due to the situation in the Middle East in the 1980s, then in relation to the Islamic Armed Group (Groupe Islamique Armée, GIA) in Algeria in the 1990s, and, since 2001, in relation to international jihadist movements inspired or connected to Al Qaida (assassinations and kidnappings of French residents in Saudi-Arabia, Mauritia, Mali, Algeria and Afghanistan in 2007, 2008, and 2009).
Accordingly, the French legislator reacted to each terrorist wave with the enactment of new laws. Thus the four major counter-terror laws are the ones of 1986 (Law no. 86-1020 of 9 September), of 1996 (Law no. 96-647 of 22 July), of 2001 (Law no. 2001-1062 of 15 November), and of 2006 (Law no. 2006-64 of 23 January).
Following the terror attacks of 1986 a first anti-terror law was adopted (Law no. 86-1020 of 9 September), which did not create any new crimes, but put certain crimes committed in a terrorist context under a special regime, to which certain special procedural rules applied. Moreover, the combat of terrorism was centralised in Paris. Thus, the judiciary, the prosecution, and, since 2006, also execution of sentences are concentrated in Paris for terrorist affairs. Along with this centralisation goes an enhanced specialisation of the competent judges and prosecutors. Although this specialisation provides enhanced knowledge and expertise for terrorist affairs, at the same time it leads to a dangerous concentration of very far-reaching powers in the hands of a few. Another characteristic element of this Law was that terrorism was not defined, but instead, a list of certain offences was created which, in combination with an additional subjective element, were subjected to different procedural and sentencing rules. These special rules include prolonged police custody (garde à vue) of up to four days and house searches without needing the consent of the owner. Similarly to the UK’s policy, the French legislator also removed lay judges from courts dealing with terrorist offences, and attributed the competence of trying terrorist cases to a special Assize Court.
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France has been a target of international terrorism due to the situation in the Middle East in the 1980s, then in relation to the Islamic Armed Group (Groupe Islamique Armée, GIA) in Algeria in the 1990s, and, since 2001, in relation to international jihadist movements inspired or connected to Al Qaida (assassinations and kidnappings of French residents in Saudi-Arabia, Mauritia, Mali, Algeria and Afghanistan in 2007, 2008, and 2009).
Accordingly, the French legislator reacted to each terrorist wave with the enactment of new laws. Thus the four major counter-terror laws are the ones of 1986 (Law no. 86-1020 of 9 September), of 1996 (Law no. 96-647 of 22 July), of 2001 (Law no. 2001-1062 of 15 November), and of 2006 (Law no. 2006-64 of 23 January).
Following the terror attacks of 1986 a first anti-terror law was adopted (Law no. 86-1020 of 9 September), which did not create any new crimes, but put certain crimes committed in a terrorist context under a special regime, to which certain special procedural rules applied. Moreover, the combat of terrorism was centralised in Paris. Thus, the judiciary, the prosecution, and, since 2006, also execution of sentences are concentrated in Paris for terrorist affairs. Along with this centralisation goes an enhanced specialisation of the competent judges and prosecutors. Although this specialisation provides enhanced knowledge and expertise for terrorist affairs, at the same time it leads to a dangerous concentration of very far-reaching powers in the hands of a few. Another characteristic element of this Law was that terrorism was not defined, but instead, a list of certain offences was created which, in combination with an additional subjective element, were subjected to different procedural and sentencing rules. These special rules include prolonged police custody (garde à vue) of up to four days and house searches without needing the consent of the owner. Similarly to the UK’s policy, the French legislator also removed lay judges from courts dealing with terrorist offences, and attributed the competence of trying terrorist cases to a special Assize Court.
The next important counter-terrorist measures were adopted in the 1990s:
By Law n°90-589 of 6 July 1990, a guarantee fund for terrorism victims was created (Fonds de garantie des victimes des actes de terrorisme et d'autres infractions). Its further modalities were subsequently regulated by ministerial decree.
In 1993 two laws were adopted which postponed a detained terrorist suspect’s right to see his lawyer substantially during garde à vue (Law No. 93-2 of 4 January 19931 which was further modified by Law 93-1013 of 24 August 1993).2 The Bill of the modifying Law of 24 August 1993 originally provided that, while under the normal regulations a person in police custody could see his lawyer after 20 hours of detention, this right could not be exercised at all if the custody was subject to the particular prolongation rules that applied to cases of terrorism and drug-related offences. The constitutionality of this provision was examined by the Conseil Constitutionnel, which ruled in its decision of 11 August 19933 that the right to see his lawyer during the garde à vue could be modified according to the different areas it concerned, but that it could not be abolished entirely. Therefore, the bills were changed, no longer abolishing the right to see a defence lawyer as such, but postponing it to the 72nd hour. The constitutionality of the new provision has been confirmed by the Conseil Constitutionnel in two decisions.4 Moreover, two waves of (mainly Algerian) Islamic terrorism in 1993-4 and 1995-6 led to legislative and policy changes in France. The plan vigipirate, a tool of the government to enhance security and vigilance in sensitive areas like railway stations and airports, was implemented, and further legislative changes took place (e.g. introduction of video surveillance on public places, introduction of new offences including participation to a terrorist association, and night searches, cf. Law no. 96-647 of 22 July), in addition to mass detentions and prolonged detentions on remand, in some cases amounting to a violation of Article 5(3), ECHR. In addition to these developments, in 1996 and 1998 two decrees were adopted regulating solitary confinement at a prisoner’s request or as a precautionary or security measure (Decree no. 96-287 of 2 April 1996, concerning the disciplinary regime of detainees, and Decree no. 98-1099 of 8 December 1998 amending the Code of Criminal Procedure). It was problematic that under these decrees, prisoners had no judicial remedies to challenge the decision of their solitary confinement. However, in 2003 the Conseil d’État clarified that prisoners were in fact entitled to appeal against this decision (Conseil d’Ètat 30 July 2003 Remli.). The Strasbourg Court held that the solitary confinement of Ramirez Sanchez (Judgment of 27 January 2005 (application no. 59450/00)), which had lasted over eight years, did not constitute a breach of Art. 3 ECHR, as he had been only ‘relatively’, not absolutely, socially isolated.
A third turning point was, as in most other countries, the year of 2001: after September 11, several new laws were adopted, with the aim of increasing internal security. The immediate response to September 11, the Law of 15 November 2001, was adopted without the special anti-terror provisions being subjected to the scrutiny of the Conseil Constitutionnel. The law focuses on the prevention of terrorism by eradicating the financial means of it. Therefore, related offences such as weapon trade and drug trafficking were particularly targeted, the possibilities to confiscate money were extended, and the powers of institutions in charge of monitoring financial transactions were also strengthened (cf. also the Monetary and Financial Code and the Insurance Code). The extension of police powers introduced by the 2001 Law included the introduction of police powers to search vehicles in relation of terrorism investigations (Art. 78-2-2 of the Code of Criminal Procedure), and the new possibility to carry out night searches also during the preliminary police inquiry. Airport security was extended (Art. 25, 26 of the Law), new offences and confiscation possibilities related to terrorist financing were introduced (Art. 421-1-6, 421-1-7, 421-2-2 , 422-6 and 422-7 of the Criminal Code). In addition, the number of offences for which genetic information of the offender shall be registered in a national automated database for DNA profiles, previously restricted to sexual offences, was largely extended to many different sorts of crimes, including theft, extortion, destruction, and acts of terrorism.5
Other specific features of French anti-terror legislation after September 11 include the introduction of private security officers, who were conferred with far-reaching search and control powers in certain areas; new powers to search vehicles and to photograph their occupants; legal provisions allowing for police infiltration, and many others. Moreover, new offences have been introduced, including an offence that implies a reversed burden of proof (Cf. Art. 421-2-3 of the French Criminal Code).
Further, the Law no. 2006-64, of 23 January, pertaining to the fight against terrorism and containing various provisions concerning security and border controls needs brief mention. It was designed in direct response to the London bombings of 2005, and its drafting was overshadowed by suburban riots in Paris. The riots were occasioned by the deaths of two French youths of Malian and Tunisian descent who were electrocuted when they fled the police in the Parisian suburb of Clichy-sous-Bois. The deaths of the teenagers led to an outcry among young immigrants from the poorer regions in many cities of France, who reacted with vandalism. The torching of cars was followed by mass detentions which led to a declaration of a state of emergency on 8 November 2005 for the metropolitan territory. It was thus in this atmosphere of civil unrest that the Law no. 2006-64 was drafted. The rationale was to follow the UK strategy and therefore homogenize anti-terrorism strategy between the UK and France. The Law strengthened the powers for the authorities to control the movement of persons (in particular to ‘risky’ countries like Pakistan, for instance), to monitor exchanges of electronic and telecommunication (e.g. automated control of vehicles by photographing their occupants). It further expanded video surveillance, the duration of police custody has been again prolonged and can now last for up to six days (instead of the previous four days). In addition, the moment when the arrested person has the right to meet with his or her lawyer has been further delayed, to the 96th, or, in the given case, to the 120th hour.6 Furthermore, sentences were increased (e.g. the punishment was doubled (from ten to twenty years) for the crime of participation in a terrorist entity (Article 421-2-1 of the Criminal Code) if this group aimed at preparing certain acts listed under the new Art. 421-6 of the Criminal Code. In addition, the execution of sentences has been centralised in Paris.7
Furthermore, the creation of two new databases (called “Edvige” and “Cristina”) has fuelled public discussion on privacy issues. ‘Edvige’ serves the collection of data of criminals and criminal suspects, ‘Cristina’ the collection of data to combat terrorism. Both databases were introduced by governmental decree. Edvige is based on Decree of 27 June 2008 concerning the creation of an automated treatment of personal data named EDVIGE, Exploitation documentaire et valorisation de l’information générale, whereas CRISTINA (Centralisation du renseignement intérieur pour la sécurité du territoire et les intérêts nationaux), is run by the state’s counter-terrorism agency and classified top secret, and, for this reason, created by an unpublished Decree in June 2008.8 This database specifically aims at the prevention of terrorism. There have been legal complaints against both data bases, but both were rejected by the State Council (State Council Decision N° 321413 of 29 October 2008 and N° 320196 of 16 April 2010).
1 Loi n°93-2 du 4 janvier 1993 portant réforme de la procédure pénale (Art. 231 J. O. of 5 January 1993, in force since 1 March 1993).
2 Loi no 93-1013 du 24 août 1993 modifiant la loi no 93-2 du 4 janvier 1993 portant réforme de la procédure pénale, JORF of 25 August 1993, 11997
3 JORF of 15 August 1993.
4 Decision n° 93-334 DC of 20 January 1994, at para. 16 to 19, and Decision n° 2004-492 of 2 March 2004, at para. 28 to 34.
5 Art. 56 of the Law, introducing a new Art. 706-54 to the Code of Criminal Procedure.
6 See new Art. 706-88
7 See new Art. 706-22-1 of the French Code of Criminal Procedure (Art. 14 of the Law).
8 Only the related Decree no. 2008-631 of 27 June 2008, modifying the Decree no. 91-1051 of 14 October is published in the JORF (Décret n° 2008-631 du 27 juin 2008 portant modification du décret n° 91-1051 du 14 octobre 1991 relatif aux fichiers gérés par les services des renseignements généraux et du décret n° 2007-914 du 15 mai 2007 pris pour l’application du I de l’article 30 de la loi n° 78-17 du 6 janvier 1978, JORF n°0152 of 1 July 2008).
Prepared in December 2010
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