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Preliminary findings of the visit: UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism concludes visit to France

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Paris (23 May 2018) The United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ms. Fionnuala Ní Aoláin, visited France from 14 -23 May 2018. The Special Rapporteur conveys her thanks to the French government for enabling and supporting this visit.  The purpose of the visit was to dialogue and assess French practices in law, policies and practice in the fight against terrorism, measured against France’s international human rights obligations , and in particular in the following areas: oversight of counter-terrorism powers including emergency powers; administrative preventive measures; investigation, detention, arrest and trial of persons suspected of or accused of terrorism; prevention strategies for terrorism as well as the rights of victims of terrorism and persons who have been negatively impacted by counter-terrorism measures.

The Special Rapporteur met with the Minister of Justice; the Deputy Director of the Human Rights and Humanitarian Affairs Sub-Directorate of the MFA; the Ambassador for Human Rights, the international dimension of the Holocaust, spoliations and the duty to remember; the Deputy Director of the Cabinet of the Minister of Europe and Foreign Affairs; the National Consultative Commission on Human Rights (CNCDH); the Member and Rapporteur of the Oversight National Assembly Commission of the law of 30 October 2017 on internal security (Loi reenforcant la sécurité intérieure et la lutte contre le terrorisme); the President of the National Commission for the Control of Intelligence Techniques (CNCTR); the Secretary General of the Inter-ministerial Committee for the Prevention of Radicalization and Crime; the Director of Public Freedoms and Legal Affairs of Ministry of the Interior (DLPAJ); the Deputy President of the Litigation Section and President of the Specialized Intelligence Gathering of the Council of State; the Deputy President of the Interior Section of Council of State; the Director of the Cabinet of the Paris Prefect of Police; the Diplomatic adviser and member of the Cabinet of the Paris Prefect of Police;  the Defender of Rights; the Founder and Director of the French Association of Victims of Terrorism (AfVT); the Diplomatic Advisor to the Minister of the Armed Forces; the Paris Public Prosecutor; the President of the French National Bar Council (Conseil des Barreau); the Director General of Internal Security (DGSI); and the Director General of the National Police (DGPN). She also met with lawyers, journalists, victims of terrorist attacks and civil society organizations. The Special Rapporteur visited the Val-d'Oise Detention House in Osny, where she interviewed several prisoners convicted for terrorism. In addition to governmental officials, oversight bodies, members of the judiciary and the legal profession the Special Rapporteur met with members of civil society broadly constructed. The Special Rapporteur was particularly grateful to have the opportunity to meet with victims of terrorism, many whose lives have been irrevocably affected by the experiences of injury, trauma and loss.

The Special Rapporteur commends the transparency and the constructive and co-operative way in which the Government facilitated her visit, which allowed a frank and open dialogue.

Given the Special Rapporteur’s arrival to France in the immediate aftermath of a terrorist attack on May 12th 2018, she is acutely conscious of the ongoing challenges faced by the French authorities to secure the safety of the public.  In particular, since January 2015 France has experienced substantial acts of violence including the attack on the Charlie Hebdo Offices and Hypercacher supermarket in Paris, and the horrific triple attack of November 2015 in Paris when gunmen and suicide bombers hit a concert hall, a major stadium, restaurants and bars almost simultaneously leaving 130 persons dead and hundreds wounded; and the horrendous attack in Nice on 14 July 2016.  In the same year, other attacks took place in Valence, Paris, Magnville and Saint-Etienne-du-Rouvray. The Special Rapporteur is mindful of the challenges related to the return of French fighters from conflict zones, including individuals who may have committed terrorist acts, as well as the continuous threat from violent extremism.  France is further grappling with the return of other citizens accompanying foreign fighters including spouses and minors from conflict zones. France remains acutely aware of, and sensitive to, the security of its citizens from terrorism.

Notably, the French legal and political system has had sustained engagement with terrorism and counter-terrorism over many decades. This includes direct attacks on French territory as well as attacks directed at French citizens overseas.  In this regard, France has a reservoir of experience in managing terrorism through a rule of law prism, and a sustained commitment to upholding human rights obligations in its national practices.

Counter-Terrorism law and practice is professionalized in France. The Executive and the legislative have both been seized legislatively and via executive action on the management of terrorism.  There is ongoing serious debate and discussion, the hallmarks of a mature democracy, on the management of terrorism and the appropriate balance between the protection of rights and security measures. The French judicial authorities (constitutional, civil, criminal and administrative) have been substantively engaged in the processing, management and review of counter-terrorism management by the state. The Courts are robust and independent. Moreover, there is a significant jurisprudence on the legal measures relating to the exercise of emergency powers promulgated over many years by various courts including by the Constitutional Court.  The Special Rapporteur commends robust judicial control as an important aspect of exercising of emergency powers, and an example of good national practice.

Counter-terrorism efforts in France are coordinated at the national level through inter alia the establishment of the Central Counterterrorism Department of the Prosecution Service (14th section), the specialization of judges and prosecutors, and the unique role of the Public Prosecutor in terrorism prosecutions. While challenges still present in coordination among the multiple security sector agencies, the Special Rapporteur was impressed by the attention and deliberation of the officials with whom she met to the importance of this issue. As with many states, coordination remains an ongoing work, and is deepened as trust and capacity is deepened over time.

The Special Rapporteur particularly acknowledges the exceptional work undertaken and refined by France in respect of victims of terrorism.  Commencing in the 1980s, France has maintained a comprehensive and robust victims’ compensation program. The Guarantee Fund for Victims of Terrorism and Other Offences (FGTI) embodies the principle of national solidarity, supports the legal capacities and autonomy of victims, and provides responsive measures to meet the immediate and long-term needs of victims.  The government has also taken proactive steps to memorialise and honour the victims of terrorism providing important symbolic affirmation to the families of those who have lost their lives to terrorism. Civil society organizations are well-organized and included in planning and responding to victims’ needs on a consistent basis.

Concurrent with the recommendations of the Security Council through its terrorism-related resolutions as well as the Global Counter-Terrorism Strategy, France provides leadership for regional and international co-ordination regarding the challenge of terrorism.  France has played a strong and positive role in advancing the importance of integrating human rights and international humanitarian law obligations into the global fight against terrorism. 

Notwithstanding many commendable aspects of French counter-terrorism law and practice, the Special Rapporteur would like to share some observations, concerns and recommendations with regard to various aspects of counter-terrorism regulation including accountability and review of measures applied during the formal state of emergency in France (November 2015-October 2017), the legal status of new administrative measures (Law SILT October 30, 2017), the independence and robustness of both non-judicial and judicial oversight related to contemporary counter-terrorism measures, the protection of procedural and substantive due process rights in the context of administrative measures, the cumulative effects of layered and multifaceted administrative and individual measures taken over several years on specific individuals, the effects on the enjoyment of and protection for freedom of expression in the context of the crime of ‘apology for terrorism’, the concerns of racial and religious profiling in the anti-terrorism context with consequent effects on the enjoyment of rights for particular minorities, the human rights obligations that accrue to French citizens overseas, and the necessity of undertaking prevention strategies in a human rights compliant and non-discriminatory manner.

France’s counter-terrorism legislation is extensive and has deepened substantially over time.  An emergency law of 1955 grants sizeable powers to the interior minister and local government officials to search homes and other premises and restrict movement without judicial warrant. A 1986 law expanded emergency powers in the context of public order challenges.  In December 2012, the French Parliament adopted Act 2012-1432 on security and action against terrorism. In November 2014, further counter-terrorism legislation was passed which marked the use of administrative measures including travel bans.  France declared a state of emergency in November 2015, which was extended six times. Numerous government officials underscored the importance for France of avoiding a state of permanent emergency, and the deep consideration given to avoiding the entrenchment of exceptional powers indefinitely. To this end, a new law (« Projet de loi renforçant la sécurité intérieure et la lutte contre le terrorisme » (SILT)) was adopted in October 2017.  The law makes a number of profound changes to the counter-terrorism framework. These include the prioritization of administrative measures as the undergirding legal basis to take measures to prevent terrorism and the establishment of a posteriori rather than a priori review.  Review is then taken through administrative rather than criminal law.  The Special Rapporteur has given significant consideration to the status of this law under the prevailing international standards concerning the regulation of emergency powers.  While acknowledging that there has been a welcome and important move from intensive proclaimed emergency, the Special Rapporteur is concerned that the new exceptional SILT law, situated within the broad array of counter-terrorism powers already available to the state, constitutes a de facto state of qualified emergency in ordinary French law. She also voices her concerns at the transposition of exceptional powers into the ordinary law (including delimitation of security perimeters, the closing of places of worship (maximum 6 months), and enables an individual to be placed under house arrest and surveillance measures), given the effects this may have on the protection and promotion of rights. There is no doubt that the state may lawfully take restrictions to protect public order, but a clear tipping point to exceptionality arises when counter-terrorism measures engage profound, sustained and potentially disproportionate effects on the enjoyment of human rights.  As I will address further below, when taking exceptional legal measures, they must be both consistently necessary and proportionate.  Such laws must also be subject to full and transparent review to address breaches of legality, proportionality and disparate effect.  The total effect of such laws from 1955 onwards on the overall protection of rights (complex and piled up emergency powers) must be continually reviewed, as piecemeal review of certain aspects of counter-terrorism laws is insufficient to address the overall effects that they may have on the protection of rights.  The Special Rapporteur is concerned that there are insufficient checks and balances in place to protect the rights of persons subject to administrative measures specifically in respect of their rights to freedom of movement, privacy, family life, liberty and freedom of religious belief and practice.

The Special Rapporteur notes her particular concerns with respect to administrative measures.  These include the reliance by administrative courts on “notes blanches” which are private notes provided by the security and administrative services to the Ministry of the Interior.  These documents form the evidential basis for the use of administrative measures.  In the Special Rapporteur’s view these notes create undue burdens on the presumption of innocence, function to reverse the burden of proof, and lessen defence rights in court. The Special Rapporteur is also concerned that there has been a diminution of the meaningful exercise of attorney client privilege as a result of the use of exceptional powers and the administration of justice in terrorism cases.

The Special Rapporteur notes the significant danger that exceptional administrative measures designed for the scourge of terrorism will be applied in other contexts, including but not limited to public demonstrations, including for example environmental protests.  She encourages the French government and judicial authorities to guard against such slippage, given the deleterious effects it has on the integrity of the legal system, and the capacity of the French ordinary law to be used for the purposes of regulating public order.

The Special Rapporteur highlights the potentially disproportionate effects of administrative measures on collective rights facilitated by the SILT law.  She is particularly conscious of encroachment on the enjoyment of religious freedom implicated by the closure of mosques.  Where the ordinary law has the possibility to enable the closure of houses of worship with attendant a priori review, the Special Rapporteur encourages reliance on such regular procedure. She underscores the exceptionality of such collective measures that have sizeable effects on the enjoyment of many individuals whose connections to any wrongdoing will be entirely tenuous.

The Special Rapporteur highlights the significant effects of the crime of “apology for terrorism” on the right to freedom of expression.  This crime constitutes in absolute numbers the criminal measure which is most frequently used in France under the counter-terrorism regime.  The Special Rapporteur accepts that there are genuine and necessary cases in which exhortation to terrorism must be constrained by the state. Nonetheless the extent to which this crime captures a broad and indiscriminate range of expression and actors evidences an undue restriction on the freedom of expression as protected by international human rights law in France.  The Special Rapporteur is particularly concerned at the evidence that indicates the law has been used extensively against minors.

The Special Rapporteur is acutely conscious that the composite effect of administrative counter-terrorism measures in France is to significantly shift the regulation of persons’ liberties to the pre-criminal or precautionary space. This represents a potentially serious challenge to the overall balance of liberty and rights, particularly when one accounts for the effects of cumulative counter-terrorism measures.  When such regulatory action is taken, it is all the more important that the protections for abuse are well-established and accessible and that oversight to determine the necessity, proportionality and legality of such measures are constantly reviewed and entrenched.

The Special Rapporteur notes that some remedies and review are available in respect of SILT and other counter-terrorism legislation. She affirms the importance of vigorous parliamentary review, and commends the French government for the establishment of a parliamentary review process whose members take their responsibilities seriously and deliberately.  However, this review process is limited and circumscribed.  It only applies to a defined number of measures under the SILT law, is primarily focused on engaging the authorities and appears to have little sustained consultation with affected communities and individuals. In parallel, as intelligence gathering powers have been placed on a defined statutory footing, an Advisory Commission for the Control of Intelligence Techniques (CNCTR) has been created.  The establishment of this advisory body is a positive step.  However, it does not go far enough in creating an entirely independent, fully legally empowered entity to oversee the data gathering powers of the intelligence services. It remains advisory, even if in practice, it is reported that its advice is usually acted upon. With regard to CNCTR the Special Rapporteur particularly recommends increased judicial representation in the composition of this body, commitment to a priori authorization as the regular approach of oversight given the balance and implications of the rights limitations concerned, and greater transparency through the publication of an annual report to detail number of measures taken.   The Special Rapporteur recommends that a fully independent, expert oversight body be created to oversee the totality of counter-terrorism and exceptional national security powers operational in France.

Finally, the Special Rapporteur is aware that legal remedy in the form of administrative review is available to persons adversely affected by the exercise of counter-terrorism related administrative powers.  In practice however, the Special Rapporteur is aware that such appeal processes are slow and affected persons may not be well-placed to take legal review measures. The small numbers of remedies sought in the context of high number of administrative measures taken during the state of emergency underscores the remedial lacunae (for example, comparing the number of house searches undertaken to the subsequent number of proceedings, judicial decisions and incarcerations in this category). For remedies to be meaningful, access to justice has to be direct, accessible and prompt, and provide an appropriate remedy to the affected individual. 

Like many countries, France faces the challenges of addressing and countering radicalization, including its violent manifestations, and has taken active steps since April 2014 to develop strategic policy in this regard. In step with the call of the Secretary General of the United Nations in presenting his Plan of Action to Prevent Violent Extremism ( A/70/674) France has adopted a National Plan to Prevent Radicalisation (February 2018). The Plan mandates 60 measures aimed primarily at government departments and administrators across a range of sectors (inter alia education, sport, health, prisons, counter-narrative and business) to receive training, identify, report and then deal with persons identified as radicalised.  It is not clear what are the legal bases for the categorization of radicalisation, how such criteria conform to best practice and ultimately how such criteria function to suppress the legitimate and protected arenas of civic expression and religious practice. The national plan does not articulate what remedies may be available to persons inaccurately identified as radicalised within the proposed framework. While confirming that reporting and oversight is an important aspect of countering radicalisation the Special Rapporteur is concerned that other central dimensions are not integrated or adequately recognized in the governmental approach. The Special Rapporteur notes that there appears to be little emphasis in the counter-radicalisation approach on engaging with and supporting a ‘bottom-up’ as well as ‘top-down’ approach to countering radicalisation, and prioritizing sustained relationships with affected communities as a central plank of counter-radicalisation policy.  Moreover, there appears to be a significant risk that the approach to identifying radicalisation will conflate genuine and protected religious practice with terrorist radicalisation, and there appears to be few safeguards to guard against this.  The Special Rapporteur encourages the government to play close attention to the ‘push-pull’ factors of radicalisation, and in particular to comprehensively address the conditions conducive to radicalisation encompassing not only essential security-based counter-terrorism measures but addressing the underlying conditions that drive individuals to radicalize and join violent extremist groups.

The Special Rapporteur paid a visit to Osny prison and was given a substantive overview of the QER separation and assessment regime, inspected the QER (Quartier d’évaluation de la radicaliation) prison section and met with several convicted prisoners.  The prison staff were well-informed and reflective on assessment practices being implemented in French prisons to assess and manage radicalized prisoners through multi-disciplinary approaches.  We were met with a sober assessment of the challenges, acknowledgement that the evidence of outcomes and effectiveness was still to be undertaken and a clear appreciation of the human rights dimensions of managing this incarcerated group, which was welcome.  We encourage and support the prison authorities’ intention to undertake documentation, research and evidence-building of the assessment processes and the measurement of recent strategies.  Prison conditions were adequate, religious practice appeared unhampered, and educational and other opportunities appeared meaningfully available to prisoners. The Special Rapporteur would note that whilst conscious of the risk involved in allowing free movement of prisoners, measures that segregate individuals in solitary confinement for prolonged periods of time may raise issues of inhuman and degrading treatment.

France has several preventive measures in place aimed at discouraging persons from leaving French territory and becoming “foreign fighters”, including a travel ban applicable for 6 months and renewable for up to 2 years.  These measures follow in part from the guidance given in United Nations Security Council Resolutions 2178 and 2396. The prohibition is subject to a posteriory and not a priori review and is generally based on intelligence information which is not divulged. In parallel with other observations, the Special Rapporteur notes her concern at the cumulative effect on liberty protections when citizens may be subject to limitations of movement including travel overseas to countries of family origin, for religious practice, family reunification and other justifiable purposes.  While there is a right to limit freedom of movement on the basis of public order, such limits should be strictly necessary and proportionate, factually motivated, and when cumulatively sustained subject to stringent and ongoing review.

In general, persons returning from intensive armed conflict zones are frequently charged with the crimes of “terrorism enterprise”. However, France has a legal basis for the prosecution in French Courts of violent, armed or terrorist acts committed in other countries by French nationals or persons habitually residing in France (via active personality principle). This raises the important possibility that France could exercise substantive jurisdiction over systematic acts of violence, including war crimes and crimes against humanity committed by French citizens in conflict territories overseas.  The Special Rapporteur encourages the Prosecutor to give consideration and due weight to this capacity, recognizing the evidential and other challenges that exist.  Given the lack of accountability for systematic acts of torture, extrajudicial execution, rape and sexual violence perpetrated in Iraq and Syria and the profound absence of meaningful accountability for the victims of those crimes, France may be uniquely placed to address this gap.

The Special Rapporteur continues to be aware of a sizeable number of fighters, their spouses and their offspring who have French nationality who are being detained in detention camps or pending trial in territories overseas.  In a number of these countries there are significant concerns as to the fairness of trial, the access to meaningful legal representation and the risk of torture, inhuman and degrading treatment including sexual violence while in custody or detention.  France has taken the view that such citizens shall generally be managed and processed by the government or de facto authorities in the case of the North-Eastern part of Syria.  The French government articulates strong protection to those accused of crimes for which the death penalty can be charged. The Special Rapporteur calls on the government to take all practicable measures to ensure that the legal protections of these citizens are fully advanced, that they receive fair trials and that in particular the situation of minors including their nationality status be regularized and kept under close review.  

La laïcité is an essential value in France.  There exists a constitutional prohibition on discrimination.  Discrimination is also legislatively prohibited on multiple ground including on the grounds of ethnic origin and religious belief.  One complex challenge in assessing the effects of counter-terrorism laws on specific communities including racial profiling and disparate effect is the constraint on gathering national data concerning minorities or specified religious groups.  Despite the formal barriers to data disaggregation, it is clear that the French Arab and/or Muslim communities have been primarily subject to exceptional measures both during the state of emergency and presently from the SILT law, in tandem with other counter-terrorism measures.  The Special Rapporteur is deeply concerned that these minority communities are being constructed as a per se ‘suspect group’ through the sustained application of counter-terrorism law.  The Special Rapporteur is further concerned of the danger that the genuine and protected right of persons to freely practice their culture and religion is being constrained by counter-terrorism law and practice.  The Special Rapporteur is deeply conscious that the conflation of Islam with terrorism in government policy and in the implementation of administrative measures unduly singles out this community, alienates the community from the state, and creates a form of political and social disenfranchisement that is inconsistent with the state’s obligations under international human rights law. France must work in genuine partnership with all its communities, and take specific steps to prevent this conflation, which includes best practice on independent oversight, community consultation, prevention, and remedy when violations of human rights are established through legal and administrative action.  

The Special Rapporteur encourages the French government to make broadly available and easily accessible the national data pertaining to the application, use and consequences of counter-terrorism measures.  Such accessibility fundamentally enables a much needed public awareness, and thus debate, so as to assess the necessity for and effectiveness of certain exceptional measures, and their legitimacy.  Accessing such data is essential for civil society and legal process to measure the disparate impact, if any on certain communities, and it enables the essential work of tracking patterns of use including comprehensive assessment of the effects on the enjoyment of human rights from counter-terrorism measures as well as the effectiveness of such measures.

The Special Rapporteur underlines that France’s counter-terrorism action must be rooted in, and comply with international law including human rights, humanitarian and refugee law, and must address not only manifestations of terrorism but conditions conducive to the spread of terrorism.  She stresses that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing.