France high court rules terror suspects have right to lawyer

[JURIST] The French Court of Cassation [official website, in French] ruled [judgment text, in French; press release, in French] Tuesday that all persons in custody of French law enforcement, including terrorism suspects, are entitled to consult with lawyers from the outset of criminal proceedings. Sitting en banc, the court ruled that France’s current rules regarding custody contravene the Article 6 right to a fair trial of the European Convention on Human Rights  [text, PDF]. Law enforcement officials must now comport with three new principles when dealing with people in custody: the right to a lawyer from the outset of criminal proceeding except for a compelling reason, the obligation to inform the person in custody of their right to remain silent and the right to assistance of counsel in interrogations. This decision expands on a July 30 decision [text, in French] issued by France’s Constitutional Court  [official website, in French] according to which all persons in custody are entitled to a lawyer from the outset except for people suspected of engaging in terrorism, drug trafficking or organized crime. In the past, French police were interrogating terrorism suspects  [WP report] for as long as 72 hours without a lawyer and threatening them to elicit information and gain their cooperation. France’s Minister of Justice Michele Alliot-Marie [official profile, in French] reacted  [statement, in French] to the court’s decision, saying “the government will of course take into account these decisions and the complete text of the bill by amendment.”

France sends soldiers to Niger to hunt for hostages

The BBC reports that France has sent dozens of soldiers to Niger’s capital Niamey to hunt for seven hostages kidnapped by suspected Islamist militants. The troops are using reconnaissance planes to search the Sahara Desert for the captives who were seized last week from their homes at Arlit. The hostages — including five French citizens — were last seen heading toward the neighboring countries of Mali and Algeria with about 30 captors before being seemingly swallowed by the vast desert. The French government believes they were probably abducted by gunmen from al-Qaeda in the Islamic Maghreb (AQIM). Five of the hostages are French. The other two are from Madagascar and Togo. A defense official in Mali said the neighboring country would allow overflights by the searchers.

France “declares war” against al-Qaida

France has declared war on al-Qaida, and matched its fighting words with a first attack on a base camp of the terror network’s North African branch, after the terror network killed a French aid worker it took hostage in April.

The declaration and attack marked a shift in strategy for France, usually discrete about its behind-the-scenes battle against terrorism.

“We are at war with al-Qaida,” Prime Minister Francois Fillon said Tuesday, a day after President Nicolas Sarkozy announced the death of 78-year-old hostage Michel Germaneau.

The humanitarian worker had been abducted April 20 or 22 in Niger by al-Qaida in the Islamic Maghreb, and was later taken to Mali, officials said.

The killers will “not go unpunished,” Sarkozy said in unusually strong language, given France’s habit of employing quiet cooperation with its regional allies — Mauritania, Mali, Niger and Algeria — in which the al-Qaida franchise was spawned amid an Islamist insurgency.

The Salafist Group for Call and Combat formally merged with al-Qaida in 2006 and spread through the Sahel region — parts of Mauritania, Mali and Niger.

Officials suggest France will activate accords with these countries to stop the terrorists in their tracks.

“It’s a universal threat that concerns the entire world … not just France or the West,” Defense Minister Herve Morin said Tuesday on France-2 television. “We will support local authorities so these assassins and (their) commanders are tracked, judged and taken before justice and punished. And, yes, we will help them.”

Algeria, Mauritania, Mali and Niger in April opened a joint military headquarters deep in the desert to respond to threats from traffickers and the al-Qaida offshoot. U.S. Special Forces have helped the four nations train troops in recent years.

France joined Mauritania strike on Al Qaeda

France said Friday it had given technical and logistical support to a Mauritanian military operation against al Qaeda’s North African wing after receiving no sign that a French citizen held by the group was still alive.

“The terrorist group targeted by the Mauritanian army is the one that executed a British hostage a year ago and has refused to give proof of life or engage in negotiations to release our compatriot Michel Germaneau,” the Defense Ministry said.

“(We) confirm that the French army gave technical and logistical support to a Mauritanian operation to prevent an attack by AQIM against Mauritania,” it said in a statement, using the acronym for al Qaeda’s North African section.

It did not say whether the hostage had been located or where Wednesday’s military operation took place. But it said Mauritania’s action had “neutralised” the group.

Malian officials said Thursday that the military swoop involving unidentified aircraft took place in northern Mali where a French national was believed to have been held.

Spain’s El Pais daily quoted diplomatic sources Thursday as saying French special forces had staged a dawn attack aimed at freeing Germaneau, killing six militants but finding no sign of the hostage or of the base where he was believed to be held. El Pais said French forces located the base with U.S. help.

Al Qaeda in the Islamic Maghreb (AQIM) set a July 27 deadline next week for killing Germaneau, 78 — who was seized on April 22 in northern Niger — unless its demands for a prisoner swap were met.

AQIM gave France 15 days from July 12 to arrange an exchange and said French President Nicolas Sarkozy would be responsible for the life of Germaneau, a retired engineer who had worked in the Algerian oil sector.

He is the latest in a string of Western hostages who have fallen prey to a new tactic to secure funding used by armed groups in the region, often claiming allegiance to al Qaeda.

More here.

HRW: France, Germany and UK should stop using foreign intelligence obtained under torture in the fight against terrorism

France, Germany, and the United Kingdom use foreign intelligence obtained under torture in the fight against terrorism, Human Rights Watch said in a report released today.
 
The 62-page report, “No Questions Asked: Intelligence Cooperation with Countries that Torture,” analyzes the ongoing cooperation by the governments of France, Germany, and the United Kingdom with foreign intelligence services in countries that routinely use torture. The three governments use the resulting foreign torture information for intelligence and policing purposes.

The intelligence services in France, Germany, and the UK do not have detailed instructions on how to assess and follow-up on information coming from countries that torture, Human Rights Watch said. Parliamentary oversight in each country is also inadequate.
 
Intelligence services in all three countries claim it is impossible to know the sources and methods used to acquire shared information. But officials in the UK and Germany have made public statements indicating that they believe it is sometimes acceptable to use foreign intelligence even if it is obtained under torture. Such statements send the wrong message to abusive governments, Human Rights Watch said.
 
Information tainted by torture has also been used in criminal and other proceedings in France and Germany, Human Rights Watch said, despite both international and domestic rules banning the use of torture evidence in any proceedings.
 
The report cites the case of Djamel Beghal, whose statements made under ill-treatment in the United Arab Emirates were used against him in a French court, where he was on trial for plotting a terrorist attack. In another example, the alleged confession of a man known as Abu Attiya under ill-treatment in Jordan was used against terrorism suspects on trial in France. German courts have allowed as evidence the summaries of interrogations of three high-profile terrorism suspects in incommunicado US detention, as well as evidence collected as result of statements made by Aleem Nasir, a Pakistan-born German citizen suspected of terrorist ties, while in the custody of the notorious Pakistani intelligence services.
 
Human Rights Watch said that in practice, overseas torture material can end up being used in court because the burden falls on defendants to prove it was obtained under torture, a nearly impossible task.

“The rules meant to exclude torture from the courts don’t work,” Sunderland said. “It should be up to prosecutors to prove that evidence originating in countries that torture wasn’t obtained through abuse.”

The use of torture intelligence in the fight against terrorism by France, Germany, and the UK damages the credibility of the European Union, Human Rights Watch said. The actual practices of these leading EU states contradict the EU’s anti-torture guidelines, which make eradicating torture and ill-treatment a priority in its relations with other countries. Over the long-term, abuses in the name of countering terrorism also feed the grievances that fuel radicalization and recruitment to terrorism, Human Rights Watch said.
 
France, Germany, and the UK can engage in necessary intelligence cooperation without undermining the global torture ban, Human Rights Watch said. To do so, they must make genuine inquiries of countries that provide information to determine whether torture was used to obtain it and to determine what steps the authorities have taken to hold to account those responsible for any abuse that comes to light.
 
Cooperation should be suspended in cases where there are grounds to believe torture or ill-treatment were used to obtain shared information. There is also a need for tighter parliamentary oversight of intelligence cooperation, and stronger rules to prevent torture material from entering the judicial process.

“Europe has been forced to confront its complicity in US counterterrorism abuses,” Sunderland said. “It is time for France, Germany, and the UK to take responsibility for their own role in third-party abuse, and to ensure that their intelligence cooperation isn’t perpetuating abuse.”

Human Rights Watch called on the governments of France, Germany, and the United Kingdom to:

    * Publically repudiate reliance on intelligence material obtained from third countries through the use of torture or cruel, inhuman, or degrading treatment;
    * Reaffirm the absolute prohibition on the use of torture evidence in any kind of proceeding;
    * Clarify procedure rules on excluding torture evidence in criminal and civil proceedings to make clear that where an allegation that a statement was made under torture is raised, the burden of proof is on the state to show that it was not made under torture;
    * Ensure that national intelligence services have clear guidance on appropriate engagement with partner services with known records of torture, and that intelligence cooperation arrangements with third countries include clear human rights stipulations, including the duty to discontinue cooperation in an individual case if credible allegations of torture come to light;
    * Strengthen parliamentary oversight over national intelligence services; and
    * Ensure that any form of complicity in torture is a criminal offense in domestic law, and that state agents who are complicit in torture anywhere in the world are prosecuted, including those who systematically receive information from countries and agencies known to practice torture.

 

Washington Post: “Europe’s antiterrorism agencies favor human intelligence over technology”

The Washington Post has an article on intelligence agencies last week titled: “Europe’s antiterrorism agencies favor human intelligence over technology”. The article seems to imply that the U.S. can learn quite some things from its European counterparts, especially from the French Central Directorate of Internal Intelligence (DCRI), France’s main antiterrorism force.

1. European Intelligence vs US technology
According to the Post:

From the beginning, Bruguière and other specialists said, the emphasis in Europe has been on domestic human intelligence rather than the computerized systems such as watch lists favored by U.S. security agencies. That has meant tedious hours of surveillance, patient listening-in on telephone conversations, careful review of bank records, and relentless recruitment of informants among Islamic zealots who are motivated to betray acquaintances by everything from fear of losing visas to a desire to clear the name of Islam in European minds.

Indeed, this approach can be seen as a good way of countering ‘homegrown’ terrorism. But three out of four measures the WP highlights here might involve the use of (sometimes sophisticated) technology.

2. France garde a vue detention vs US miranda rights

Francois Heisbourg, a defense specialist who played a key role in drafting the white paper outlining France’s antiterrorism policies, is quoted saying that French and other European police also have more latitude in dealing with terrorism suspects than their American counterparts.

French police can demand a show of identity for no specific reason, Heisbourg recalled, and can hold suspects for questioning over two days – or more in terrorism cases – without intervention by defense lawyers. Police and prosecutors in other European countries have similar latitude.

In the light of the ongoing discussion in the US on the restriction of Miranda rights, this approach seems to be quite interesting for U.S. policy makers. Indeed, in France persons suspected of terrorism-related offenses may be detained  in garde à vue for up to 6 days, and access to counsel in some  cases is permitted only after 4 days. France has stated before the UN that access to legal counsel is only delayed “for the purpose of the inquiry having regard to the seriousness of the offences in question.”

The UN’s Committee Against Torture has warned France in 2006 however that this practice is “likely to give rise to violations of Article 11 of the Convention, since it is during the first few hours after an arrest, particularly when a person is held incommunicado, that the risk of torture is greatest.”

The ICJ has criticised France as well, saying that

The combined effect of restrictions on access to lawyers, medical examinations and the provision of information on the arrest to family members, is that detainees may be held virtually incommunicado for at least three days.

Moreover, FBI analysts have said that Miranda rights don’t inhibit the questioning of suspects. As a former FBI interrogator, and author of the book Hunting Terrorists: A Look At the Psychopathology of Terror.” says:

“In 25 years working as an FBI agent, I found that the Miranda decision did not interfere with me in either obtaining usable information or making prosecutable cases.

“Miranda doesn’t interfere with making cases,” he added. “Incompetent  investigators do.”

The American Civil Liberties Union and about three dozen human  rights and antiwar organizations sent a letter to Attorney General Holder Monday urging him to leave the  Miranda rule untouched.

“In the nearly nine years since the attacks of 9/11, the Department  of Justice has obtained convictions in more than 400 international  terrorism or terrorism-related cases without weakening Miranda or  risking the safety of Americans. (…) The ‘public safety exception’ is exception enough.”

3. France’s intimidation policy vs US wiretapping of potential homegrown terrorists

In France, to pressure for more information and keep would-be terrorists off balance, the specialists said, police and domestic intelligence officers carry out frequent raids, taking young Muslim men into custody for interrogation and intimidation. That treatment extends to Islamic groups that may never imagine carrying out a terrorist attack but eventually could help with logistics, even unwittingly, or just hear about someone with violent plans.

“They are constantly bothered,” said Xavier Raufer, a veteran terrorism expert who heads the Criminology Institute at the University of Paris II. “The most fragile of them are singled out, contacted and eventually flipped.”

I’m not sure whether such an agressive, intimidating approach is the perfect way to prevent homegrown terrorism, as such behaviour may actually lead to increased radicalised feelings among the targeted communities and in the end may constitute the direct trigger which causes a person to ‘flip’ – to the wrong side. The British approach of communitiy policing would be a far better approach.

France: 14 Held in Plot to Free Transit Bomber

The French police on Tuesday arrested 14 men suspected of plotting a prison break to free an Islamist militant who took part in the Paris transit bombings in 1995. The unidentified men are currently being interrogated  in garde a vue detention by SDAT police forces under the direction of judges Thierry Fragnoli et Edmond Brunaud.

The men are suspected of planning the escape of Smaïn Ali Belkacem, an Algerian sentenced to life in prison in October 2002 for his role in the bombing of the Musée d’Orsay underground train station on Oct. 17, 1995, which left 26 people wounded. Thep olice had intercepted telephone messages between  the suspects. It was one of a series of bombings that ripped through the Paris underground transport network between July and October 1995, leaving eight people dead and dozens wounded. The Armed Islamic Group claimed responsibility, saying it wanted to punish the city for supporting the Algerian government during that country’s civil war.

Last weekend 12 other suspected ‘islamists’ were arrested and placed in garde a vue detention at Levallois-Perret (Hauts-de-Seine).

Hate speech decision on Le Pen

Professor Dirk Voorhoof (Ghent University) has a post on ECHR Blog commenting last weeks’s ECtHR’s decision in the case of Le Pen v. France, the president of the French “National Front” party.

Quote:

The ECtHR is of the opinion that the French authorities’ interference with Mr Le Pen’s freedom of expression, in the form of a criminal conviction, had been prescribed by law (Art. 23-24 of the French Press Freedom Act, Loi sur la Liberté de la Presse) and pursued the legitimate aim of protecting the reputation or rights of others. Again it was crucial to decide whether or not the conviction of Mr Le Pen was to be considered necessary in a democratic society, taking into account the importance of freedom of expression in the context of political debate in a democratic society. The Court reiterated that freedom of expression applied not only to “information” or “ideas” that were favourably received, but also to those that offended, shocked or disturbed. Furthermore, anyone who engaged in a debate on a matter of public interest could resort to a degree of exaggeration, or even provocation, provided that they respected the reputation and rights of others. When the person concerned was an elected representative, like Mr Le Pen, who represented his voters, took up their concerns and defended their interests, the Court has to exercise the strictest supervision of this kind of interferences with freedom of expression.

Le Pen’s statements had been made in the context of a general debate on the problems linked to the settlement and integration of immigrants in their host countries. Moreover, the varying scale of the problems concerned, which could sometimes generate misunderstanding and incomprehension, required considerable latitude to be left to the State in assessing the need for interference with a person’s freedom of expression. In this case, however, Mr Le Pen’s comments had certainly presented the Muslim community as a whole in a disturbing light likely to give rise to feelings of rejection and hostility. He had set the French on the one hand against a community whose religious convictions were explicitly mentioned and whose rapid growth was presented as an already latent threat to the dignity and security of the French people.

The reasons given by the domestic courts for convicting Mr Le Pen had thus been relevant and sufficient. Nor had the penalty imposed been disproportionate. The Court recognises that a fine of 10.000 euros is an important amount, but reminds that Le Pen under French law had risked a sentence to imprisonment. Therefore the Court did not consider the sanction to be disproportionate. On these grounds the Court found that the interference with Mr Le Pen’s enjoyment of his right to freedom of expression had been “necessary in a democratic society”. The complaint of Mr. Le Pen was accordingly rejected.

The decision of 20 April 2010 in the case of Le Pen v. France is fully in line with the case law of the ECtHR not accepting ‘hate speech’ as part of public or political debate being protected under Article 10 of the Convention.

European Parliament VP calls for continent-wide burqa ban

[JURIST] European Parliament Vice President Silvana Koch-Mehrin expressed her support for a continent-wide ban on the Islamic burqa in an editorial published Saturday in the German daily Bild. Koch-Mehrin, a member of the Free Democratic Party representing Germany, described the burqa as a “mobile prison” which “robs [women] of their face and personality.” Koch-Mehrin also stated her support for religious and personal freedoms, but not at the expense of “tak[ing] the human face. At least not in Europe.” Shortly after Koch-Mehrin’s editorial was published, Reinhard Butikofer, a member of the Green Party  in the European Parliament, described her support for the ban as a tactic to get support from right-wing populists, and that his party would oppose a burqa ban if the issue came before parliament.

The Belgian House of Representatives on Thursday voted 136-0 to approve a bill that would ban the burqa and other full face veils in public. The proposed legislation applies to areas “accessible to the public” or areas meant for “public use or to provide public services.” Violators could face a penalty of up to seven days in jail or a fine of 15 to 25 euros. The measure must now go before the Senate. France, which has Europe’s largest Muslim population, has also been pressing for a ban on the burqa.

Belgium lower house approves burqa ban

[JURIST] The Belgian House of Representatives on Thursday voted 136-0 to approve a bill that would ban the Islamic burqa and other full face veils in public. The proposed legislation applies to areas “accessible to the public” or areas meant for “public use or to provide public services.” Violators could face a penalty of up to seven days in jail or a fine of 15 to 25 euros. Proponents argue that the legislation is necessary both as a security measure and to prevent women from being forced to wear the garments. Opponents have said that the bill restricts freedom of expression. The measure must now go before the Senate. If approved, Belgium would become the first European nation to impose a nationwide restriction on traditional face-covering veils.

France, which has Europe’s largest Muslim population, has also been pressing for a ban on the burqa. Last week, a spokesperson for French President Nicolas Sarkozy said that the president is in favor of a complete public ban on the burqa and other full face veils and will be submitting a bill to parliament in May. France already has a partial ban that prevents public officials from wearing veils while operating in their official capacity and also prohibits veils in public schools. Also last month, lawmakers in Quebec introduced a bill that would ban women from wearing full face veils from public services, which garnered support from members of the Muslim Canadian Congress who argue that the law would not violate human rights and would promote the ideals of a free and democratic society.