Hostname: page-component-78c5997874-8bhkd Total loading time: 0 Render date: 2024-11-10T12:05:31.083Z Has data issue: false hasContentIssue false
  • English
  • Français

French foreign fighters: The engagement of administrative and criminal justice in France

Published online by Cambridge University Press:  10 July 2019

Sharon Weill
Get access Rights & Permissions [Opens in a new window]

Abstract

Since 2012, it is estimated that 2,000 French nationals have joined jihadist armed groups listed by the UN as terrorist organizations in Syria and in Iraq. Consequently, a new prosecution policy has been introduced in France. To date, more than 200 persons have been prosecuted and 1,600 persons have been placed under criminal investigation. In parallel, after the 13 November 2015 terror attacks in Paris, a State of emergency was declared. Persisting for two years, it introduced derogative administrative measures that slowly transgressed into regular criminal law. Consequently, French administrative and criminal courts, with ordinary judges and professional routines, find themselves involved in matters related to armed conflicts – a completely new phenomenon for them. What role has been performed by French criminal and administrative judges in the global fight against terrorism?

This article takes a close look at France's fight against terrorism and the engagement of its domestic legal system in the context of foreign fighters and suspects of terrorism. It outlines the radicalization processes of French administrative and criminal law along with their hybridization and complementarity. While the armed conflict in Syria and Iraq and the complex geopolitical context are clearly present in French courtrooms, international humanitarian law and international criminal law frameworks are almost entirely absent. At the same time, by granting a growing power to the administration, the repressive and pre-emptive approaches introduced within criminal and administrative law transform liberal conceptions of law and justice.

Keywords

foreign fighterscounterterrorismFrench legal systemwar on terrordomestic courtscriminal prosecution
Type
Selected articles
Information
International Review of the Red Cross , Volume 100 , Issue 907-909: 150 years of humanitarian reflection , April 2018 , pp. 211 - 236
Copyright
Copyright © icrc 2019 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

An early version of this article was presented at the Program on International Law and Armed Conflict at Harvard Law School in April 2018. The author wishes to thank the Swiss National Foundation for Scientific Research for supporting this research (advanced postdoctoral research grant 2017–18). Special mention goes also to Court Watch and the author’s students in the Capstone course on counterterrorism at Sciences Po, Paris, including the wonderful work of Daphne Amouna, Nicolas Tanguay-Leduc, Claire Pershan and others.

References

1 As of May 2018, it was also estimated that over 300 French persons had been returned to France and 1,300 French individuals, including 500 children, were still present in Syria and Iraq. See Centre d'Analyse du Terrorisme (CAT), La justice pénale face au djihadisme: Le traitement judiciaire des filières syro-irakiennes (2014–2017), May 2018, p. 10, available at: http://cat-int.org/wp-content/uploads/2018/05/Rapport-Justice-p%C3%A9nale-face-au-djihadisme.pdf (all internet references were accessed in June 2019).

2 The state of emergency was declared after the terror attacks of 14 November 2015 and lasted until 30 October 2017. The longest in French history, it was prolonged six times and further amended. Before that, a state of emergency was declared in France three times in the context of the Algerian war, in 1984 in New Caledonia, and in 2005 for five weeks following violent events in the suburban areas of Paris. The prerogatives of the government under a state of emergency are set out in the Law on State of Emergency, Law No. 55-385, 3 April 1955.

3 It is interesting to look at the process of amendments brought into the Law on Internal Security (Law No. 2012-351, 12 March 2012) under the section “Fight against Terrorism”. In 2012 the three first chapters were introduced: “Chapter 1: Fight against the Financing of Terrorist Activities”; “Chapter 2: Access to Automated Administrative Processing and Data Held by Private Operators”; “Chapter 3: Implementation of Video-Protection Systems”; in 2014 another chapter was added, “Chapter 4: Prohibition from Leaving the Territory”; in 2016, “Chapter 5: Administrative Control of Returns on the National Territory”; and finally in 2017, chapters 6–10: “Chapter 6: Perimeters of Protection”; “Chapter 7: Closing of Places of Worship”; “Chapter 8: Individual Measures of Administrative Control and Supervision”; “Chapter 9: Visits and Seizures” and “Chapter 10: Parliamentary Scrutiny”.

4 Appeal on the decision of prohibition against leaving the territory can be made within two months, and the administrative judge shall render his decision within four months. Law on Internal Security, Art. L. 224-1 (amendment of 13 November 2014). See Cappello, Aurélie, “L'interdiction de sortie du territoire dans la loi renforçant les dispositions relatives à la lutte contre le terrorisme”, AJ Pénal 2014, 2014, p. 560Google Scholar; Rouidi, Hajer, “La loi n° 2014-1353 du 13 novembre 2014 renforçant les dispositions relatives à la lutte contre le terrorisme: quelles évolutions?”, AJ Pénal 2014, 2014, p. 558Google Scholar.

5 Constitutional Council, M. Omar K. (Interdiction administrative de sortie du territoire), Decision No. 2015-490 QPC, 14 October 2015, available in French at: www.conseil-constitutionnel.fr/decision/2015/2015490QPC.htm. The petitioners argued that this authority constituted a disproportionate infringement on the freedom of movement and the right to an effective judicial recourse by a judicial (and not administrative) authority as guaranteed by Article 66 of the Constitution. While rejecting the petition, the Constitutional Court based its decision on three main arguments. First, it considered the justificatory motives for the prohibition to be “precisely defined”. Second, it stated that “no constitutional exigency requires such a decision to be pronounced by a tribunal” rather than an administrative body. This point, however, is contentious since some interpretations of Article 66 have concluded that any measure impeding the freedom of liberty should be imposed and controlled by the judicial authority rather than the administration or administrative justice order. Third, to justify its final ruling, the Court insisted on the fact that a prohibition's “total duration cannot exceed two years”, and that with this limitation “the legislator has adopted measures assuring a conciliation that is clearly not unbalanced between the freedom of movement and the protection from attacks on public order”.

6 Amendment introduced to Art. L224-1 of the Law on Internal Security by Art. 11 of Law No. 2016-987, 21 July 2016. According to a memo by the Ministry of Justice, “[t]he measure can now be renewed without limitation as long as the conditions for its delivery continue to be met”. See “Circulaire du 5 novembre 2016 relative à l'articulation des mesures administratives et des mesures judiciaires en matière de lutte contre le terrorisme et la prévention de la radicalisation”, Bulletin Officiel du Ministère de la Justice, 5 November 2016, available at: www.textes.justice.gouv.fr/art_pix/JUSD1633563C.pdf.

7 Article 3 of the Decree of 7 August 2017 authorizing the processing of personal data relating to the investigation and monitoring of exit bans, available in French at: www.legifrance.gouv.fr/eli/arrete/2017/8/7/INTD1708806A/jo.

8 CNIL, Decision No. 2017-229, opinion on draft order authorizing the processing of personal data relating to the monitoring of orders prohibiting leaving the territories, 20 July 2017, available at: https://tinyurl.com/y6eya9mb.

9 As of November 2016, 244 prohibitions were in force. See Alain Marc, “Projet de loi de finances pour 2017: Sécurités”, 24 November 2016, p. 30, available at: www.senat.fr/rap/a16-146-15/a16-146-151.pdf.

10 See CAT, “European Jihad Watch”, No. 4, November 2017, available at: http://cat-int.org/wp-content/uploads/2017/11/EJW-Novembre2017-french.pdf.

11 Government Report to Parliament on the Implementation of Law No. 2017-1510 of 30 October 2017 Strengthening Internal Security and the Fight Against Terrorism, 1 November 2018, p. 20, available at: www2.assemblee-nationale.fr/content/download/75798/778106/version/1/file/Loi+SILT+-+Rapport+au+Parlement+2018.pdf.

12 See Article 6 of the original Law on State of Emergency of 3 April 1955: “The Minister of the Interior and, in Algeria, the Governor General may order a house arrest in a territorial division or a specific locality of any person residing in the area fixed by the decree referred to in Article 2, whose activity proves to be dangerous for security and public order” (unofficial translation).

13 In November 2015, an amendment added the possibility of requiring the persons arrested to come to the police station up to three times a day and to be prevented from contacting certain persons, and allowing persons previously convicted of terrorism-linked offences to be placed under “mobile electronic surveillance”: Art. 4 amending Law No. 2015-1501, 20 November 2015. In December 2016, another amendment was introduced to regulate the prolongations. These were found to be in part unconstitutional by the Constitutional Court in March 2017 (Decision No. 2017-624 QPC, 16 March 2017).

14 See Art. 6(14–16) of the 1955 Law on State of Emergency as amended by Art. 2 of Law No. 2016-1767, December 2016.

15 Law on State of Emergency, Art. 14-1.

16 Law on Internal Security, Arts L225-1, L225-2 (amendments introduced in June and July 2016). The law empowers the government to limit a person's movement into a defined geographical territory or to place him under house arrest for a maximum of eight hours; to require the person to check in at the police station up to three times a day, including during holidays and weekends; to prohibit communications with certain persons; and to impose an obligation to declare a change of address. These control measures will be abrogated if a criminal procedure related to terrorism (and only in this case) is opened; see Art. L225-5.

17 See Art. L228(1–7) of the Law on Internal Security, introduced by Art. 3 of Law No. 2017-1510, 30 October 2017. The Ministry of the Interior, in practice usually upon the recommendation of the security services, can limit the movement of persons into a defined geographical zone, require them to come once a day to the police office and/or require them to declare movement beyond their municipality or any change of residency. Instead of these measures, the minister of the interior can propose to have the individual fitted with an electronic bracelet – previously only a judicial judge could impose this measure.

18 Law on Internal Security, Art. L228-1 (2017).

19 Government Report, above note 11, p. 42.

20 See Amnesty International, Upturned Lives: The Disproportionate Impact of French State of Emergency, February 2016; Commission Nationale Consultative des Droits de l'Homme (CNCDH), Avis sur le suivi de l’état d'urgence (Assemblée plénière – 18 février 2016 – Adoption: unanimité, trois abstentions), 2016, p. 4, available at: www.cncdh.fr/sites/default/files/16.02.18_avis_suivi_etat_durgence_1.pdf.

21 Ministry of the Interior, “Bilan de l’état d'urgence”, 3 November 2017, available at: www.interieur.gouv.fr/Actualites/L-actu-du-Ministere/Bilan-de-l-etat-d-urgence.

22 For official data, see Bilan statistique de l’état d'urgence (sur la base des données transmises par le ministère de l’intérieur), 14 November 2015, available at: www2.assemblee-nationale.fr/static/15/lois/bilan_AAR.pdf.

23 For official data provided by the Ministry of the Interior, see: https://tinyurl.com/y4ag2scy.

24 See Government Report, above note 11, pp. 48, 79.

25 Ibid., p. 79.

26 According to Article 66 of the French Constitution of 1958, “[n]o one shall be arbitrarily detained. The Judicial Authority, guardian of the freedom of the individual, shall ensure compliance with this principle in the conditions laid down by statute.”

27 Constitutional Council, M. Cédric D., Decision No. 2015-52, Appeal for Judicial Review (QPC), 22 December 2015, available at: www.conseil-constitutionnel.fr/decision/2015/2015527QPC.htm.

28 Ibid., paras 5, 6. Later, the Council of State similarly found that the closure of places of worship does not necessarily impair individual liberties. Constitutional Council, Ligue des Droits de l'Homme, Decision No. 2016-535, Appeal for Judicial Review (QPC), 19 February 2016, paras 4, 6.

29 “Considering secondly that, in relation to a house arrest order issued by the Minister of the Interior, the individual ‘may also be required to remain in the place of residence determined by the Minister of the Interior during specific hours set by the latter, up to a maximum of twelve hours out of every twenty-four hours’; that the maximum period of time during which an individual placed under house arrest is required to remain at home, which is set at twelve hours per day, cannot be extended, otherwise the placing under house arrest would then be regarded as a measure restricting freedom, and accordingly subject to the requirements laid down by Article 66 of the Constitution.” Constitutional Council, M. Cédric D., above note 27, para. 6.

30 This separation dates from the French Revolution, when the revolutionary powers sought to restrain the powers of the judiciary, who were represented by the bourgeoisie. Still today the French legal system is constituted as a dual system: administrative (public law) and judicial (civil and criminal matters).

31 For a fascinating socio-legal study on the Council of State, see Latour, Bruno, La fabrique du droit: Une ethnographie du Conseil d’État, Collection Sciences Humaines et Sociales, Éditions La Découverte Poche, Paris, 2004Google Scholar.

32 The legality of the white notes was first approved by the Council of State in 1991 and 2003 (Council of State, Ministre de l'Intérieur c. Diouri, Case No. 128128, 11 October 1991; Council of State, Ministre de l'Intérieur c. Rakhimov, Case No. 238662, 3 March 2003). It was confirmed again by Council of State Case No. 394991 of 11 December 2015, where the Council upheld that there is no legislative provision or principle that prevents the administrative judge from considering facts provided by the white notes if they were submitted to an adversarial process and were not seriously disputed by the applicant.

33 Bernard Stirn, President of the State Council’s litigation section, Report No. 3784, National Assembly, 25 May 2016, available at: www.assembleenationale.fr/14/rapports/r3784.asp.

34 Odinet, Guillaume, “Le rôle du juge administratif dans le contrôle de l'état d'urgence”, Les Cahiers de la Justice, Dalloz, 2017, p. 278Google Scholar (author's translation). For background, see Pierre Alonso, “Notes blanches: Les corbeaux de la place Beauvau”, Libération, 15 February 2016, available at: www.liberation.fr/france/2016/02/15/notes-blanches-les-corbeaux-de-la-place-beauvau_1433587.

35 As required by the jurisprudence; see above note 32.

36 Vauchez, Stéphanie Hennette and Slama, Serge, “Harry Potter au Palais Royal? La lutte contre le terrorisme comme cape d'invisibilité de l’état d'urgence et la transformation de l'office du juge administrative”, Les Cahiers de la Justice, Dalloz, 2017, pp. 287Google Scholar, 288 (author's translation).

37 Syndicat de la Magistrature, Projet de loi renforçant la sécurité intérieure et la lutte contre le terrorisme: Observations du Syndicat de la magistrature devant la commission des lois de l'Assemblée nationale, 26 July 2017, pp. 3–4.

38 See official data in Bilan statistique de l’état d'urgence, 14 November 2015, available at: www2.assemblee-nationale.fr/static/15/lois/bilan_contentieux.pdf.

39 National Assembly, Mesures administratives prises en application de la loi n° 55-385 du 3 avril 1955, 18 July 2016, available at: https://tinyurl.com/y4x459c7. For the next period, see: https://tinyurl.com/y3bndqja.

40 See Carine Placzek and Camille Lucotte, Terrorisme et état d'urgence – Jurisprudence des hautes juridictions françaises, Capstone Course on International Crimes and Counterterrorism, under the direction of Sharon Weill, Sciences Po Paris, April 2017, available at: https://tinyurl.com/y6c5ofpz. This report compiles and provides an analysis of all highest French courts’ decisions dealing with terrorism until 2017.

41 Renaud, Thérèse, “Du rififi chez les juges: Le juge administratif est-il le nouveau gardien des libertés publiques?”, AJDA 2016, 2016, pp. 1677–1678Google Scholar.

42 On earlier practices, see Shapiro, Jeremy and Suzan, Bénédicte, “The French Experience of Counter-terrorism”, Survival, Vol. 45, No. 1, 2003Google Scholar; Cahn, Olivier, “Le dispositif antiterroriste français, une manifestation du droit pénal de l'ennemi”, Archives de Politique Criminelle, Vol. 2016/1, No. 38, 2016, pp. 91–99Google Scholar.

43 Camille Hennetier, cited in Mégie, Antoine, La réponse judiciaire au terrorisme au regard de la Charte des droits fondamentaux de l'UE, Brussels, February 2017, p. 18Google Scholar.

44 See, among others, Garapon, Antoine, “Is There a French Advantage in the Fight against Terrorism?”, Analisis del Real Instituto Elcano, No. 110/2005, 1 September 2005Google Scholar; Foley, Franck, Countering Terrorism in Britain and France, Cambridge University Press, Cambridge, 2014Google Scholar.

45 Codaccioni, Vanessa, Justice d'exception, CNRS, Paris, 2015, p. 143Google Scholar.

46 This includes the Paris public prosecutor, the counterterrorism investigative units and the trial courts, which hold concurrent jurisdiction over terrorist offences. See Code of Criminal Procedure (Code de Procédure Pénale, CPP), Art. 706-17, and Law No. 86-1020 of 9 September 1986. In practice, as a matter of policy all cases are held in Paris. This jurisdiction extends to cover terrorist acts committed outside France (see Criminal Code, Art. 113-13, amendment introduced in 2012).

47 The origin of the Cour d'Assizes Spécialement Composée is a law of 21 July 1982 that established its competence over crimes related to the military and the safety of the State, thus replacing the Cour de Sûreté de l'Etat abolished in 1981. In 1986, following threats on members of the jury by the extreme left group Direct Action in a terror case, it was decided to extend the competence of this special chamber to cases dealing with acts of terrorism. Today it also includes a competence over organized crime. Until recently the Court was composed of seven magistrates, but due to the flow of terrorism cases it has been reduced to five – one president and four assessors – who can be any magistrate (investigating or sitting judges). Unlike the jury courts, decisions are adopted upon a regular majority.

48 As indicated by the CAT, between 2014 and 2017, 238 people related to the Syria–Iraq zone were prosecuted. As of 15 May 2018, the Counter terrorism Prosecutor's Office had dealt with 513 files related to the Syria–Iraq zone, involving 1,620 individuals. See CAT, above note 1, p. 4. In 2017, only four cases related to the Syrian–Iraqi front were held before the chamber. However, this is going to change radically due to the new prosecution policy – see discussion below. Currently, ninety criminal cases are waiting to be heard by the Assize Court. For an article on first instance cases trials before the 16th Chamber, see Mégie, Antoine and Pawella, Jeanne, “Juger dans le contexte de la ‘guerre contre le terrorisme’: Les procès correctionnels des filières djihadistes”, Les Cahiers de la Justice, Dalloz, 2017Google Scholar.

49 This has always been the case. Franck Foley indicates, for example, that between 1995 and 2005 (for all forms of terrorism, including Basque and Corsican cases), out of 502 convictions by courts for terrorism, 403 were for AMT. See F. Foley, above note 44, p. 202.

50 Article 421-2-1 of the French Criminal Code defines “the participation in a group formed or in an agreement established for the preparation, characterized by one or more material facts, of one of the acts of terrorism referred to in the preceding articles” as a terrorism offence. Acts of terrorism are defined in Article 421-1 and include attacks on life and physical integrity; the hijacking of planes and other modes of transport; theft, extortions, destructions and degradations; membership in or support of dissolved armed groups and movements; offences in relation to armaments, explosives and nuclear materials; dealing in stolen goods related to these offences; and some aspects of money laundering and financing. These acts become “terrorist” if they occur with the additional qualification of “aiming to seriously trouble public order [ordre public] by intimidation or terror”.

51 Ministry of Justice, “La lettre du porte-parole: 23 novembre 2016”, 2016.

52 A. Mégie, above note 43, p. 18 (author's translation).

53 Court of Cassation, Decision No. 93-14.837 (1st Civil Chamber), 17 October 1995, available at: www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000007035042.

54 Court of Cassation, Decision No. 14-88.329 (Criminal Chamber), 8 July 2015, available at: www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000030869110.

55 Court of Cassation, Decision No. 16-84.596 (Criminal Chamber), 10 January 2017, available at: www.courdecassation.fr/jurisprudence_2/chambre_criminelle_578/5993_10_35897.html.

56 “The question that arises is whether or not, beyond his jihadist conception, which embraces diverse conceptions and which is not necessarily synonymous with terrorist involvement, such as his willingness to have Sharia law governing that country and to take up arms to ensure such an objective, X has actually carried out [terrorist] infractions …. In other words, did X join a terrorist organization, or at least, an organization that conducts operations that amount to acts of terrorism?” Paris Court of First Instance, Case No. 13099000941, Judgment (16th Criminal Chamber), 28 September 2018, p. 22. On file with author.

57 Ibid., p. 22.

58 Ibid., p. 23.

59 Ibid., p. 23.

60 Paris Appeal Court, Ordonnance de Renvoi devant le Tribunal de Correctionnel, File No. 1309900941, 3 May 2017, p. 15 (on file with author). See also at p. 43: “An official proof of this death, coming from a country in war, with which the French authorities have cut all diplomatic relations, cannot be provided.”

61 “It appears to the court that it is not within the jurisdiction of the judicial authority to order or recognize that a group constitutes a terrorist group and that if it did, the court would encroach on the powers of the legislative and executive branches.” Paris Court of First Instance, Case No. 14108000203, Judgment (16th Criminal Chamber), 12 December 2018, p. 14.

62 Ibid.

63 For a discussion on avoidance doctrines, see Benvenisti, Eyal, “Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts”, European Journal of International Law, Vol. 4, No. 2, 1993CrossRefGoogle Scholar; Weill, Sharon, The Role of National Courts in Applying International Humanitarian Law, Oxford University Press, Oxford, 2014, pp. 13–67CrossRefGoogle Scholar.

64 Ibid., p. 15. See also: “The fact of participating in an insurrection or an armed conflict, which is by nature disorganizing, prejudicial to public order, and likely to cause death and misfortune, cannot in itself be regarded as a terrorist act …. [S]uch an engagement can only be reprehensible if it is done within a group that is itself a terrorist group or if it is accompanied by specific acts of terrorism allegedly committed by the French citizen.” Ibid., p. 20.

65 Court of Cassation, Decision No. 13-83.758 (Criminal Chamber), 21 May 2014, available at: https://tinyurl.com/yy3zlym7.

66 International Commission of Jurists, “International Commission of Jurists Submission to the Committee against Torture on the 6th Periodic Report of France”, April 2010, p. 2; Human Rights Watch, Preempting Justice: Counterterrorism Laws and Procedures in France, July 2008.

67 See, among many others, Paris Court of First Instance, Case No. 13099000941, Judgment (16th Criminal Chamber 2), 28 September 2018.

68 Court of Cassation, Decision No. 16-84.596 (Criminal Chamber), 10 January 2017, available at: www.courdecassation.fr/jurisprudence_2/chambre_criminelle_578/5993_10_35897.html.

69 As stipulated by the Court of Cassation in its Decision No. 13-83-758. In practice, however, evidence of a minor action showing that the suspect had knowledge of the terrorist activity concerned will suffice. See F. Foley, above note 44, p. 203.

70 Specially Composed Assize Court, Public Prosecutor v. Merah, Case No. P/12079000/4, 2017. The court's decision is available at: www.dalloz-actualite.fr/sites/dalloz-actualite.fr/files/resources/2017/11/motivation.pdf.

71 Paris Appeals Court, Case No. 2016/0184, Appeal on Indictment (First Investigation Chamber), 17 June 2016, pp. 26, 27. On file with author.

72 Closing statement of the prosecutor before the Court, 30 October 2017, available at: https://tinyurl.com/y6kc56wo (author's translation).

73 Specially Composed Assize Court, Merah, above note 70, p. 9.

74 The testimonies were given before the Court on 16 October 2017. They are not available, as in France there are no official transcriptions of the proceedings. For a media report, see: “Quand le Renseignement voulait recruter Mohamed Merah”, Le Figaro, 16 October 2017, available at: https://tinyurl.com/y5bndkje.

75 Ibid.

76 See Article 706-24-3 of the CPP, modified by Law No. 2016-731 of 3 June 2016, Art. 7.

77 Alix, Julie, “Réprimer la participation au terrorisme”, Revue de Science Criminelle et de Droit Pénal Comparé, Vol. 2014/4, No. 4, 2014Google Scholar.

78 The liberty and detention judge may order a provisional detention in the following circumstance (CPP, Art. 144): for the preservation of evidence, the prevention of pressure against witnesses or victims, the prevention of fraudulent consultation with co-perpetrators or accomplices, the protection of the person under investigation or the prevention of the renewal of the offence, or to end an exceptional and persistent disturbance to public order. In should be noted that the use of alternatives to detention – such as restriction of movement and house arrest – depend also on the political environment. For example, electronic bracelets have been practically abandoned in favour of pre-trial detention since the attack at Saint-Étienne-du-Rouvray, which was committed by an individual placed under such a judicial control measure (interview with a defence lawyer specializing in terrorist cases, 24 April 2018, on file with author).

79 Interview with a French counterterrorism magistrate, Paris, March 2018. On file with author.

80 CPP, Art. 181. Thus, a suspect in pre-trial detention, once indicted, can wait for his trial in detention for two more years. However, according to the Court of Cassation, an extension of the time period cannot be granted because of institutional material problems such as lack of judges. See Michel Mercier, Report No. 252, Senate, 21 December 2016, p. 13, available at: www.senat.fr/rap/l16-252/l16-2521.pdf.

81 CPP, Art. 145-4-1.

82 This is for up to one year, with a periodic review every three months. Beyond one year, the confinement measure can be extended by the Ministry of Justice, in the absence of any maximum duration provided by the CPP. See CPP, Arts 726-1, R57-7-64 to R57-7-67, R57-7-68. The Council of State ruled in 2008 that solitary confinement could only be used in circumstances of strict necessity and that detainees had the right to appeal against a decision of solitary confinement. Council of State, Litigation Section, Decision No. 293785, 31 October 2008.

83 At the end of 2016, 15% of detainees convicted for terrorism-related offences were in isolation. Telephone interview carried out by the author's graduate student Joachim Stassart with the French Section of the International Observatory of Prisons, 28 March 2018. The author thanks Mr Stassart for his research assistance on this question.

84 Criminal Code, Art. 421-6.

85 Ibid., Art. 113-13 (amendment introduced in 2012).

86 Interview with a high-ranking French counterterrorism magistrate, Paris, February 2017. On file with author.

87 M. Mercier, above note 80, p. 14.

88 “François Molins annonce un ‘durcissement considérable’ de la politique pénale en matière de terrorisme”, Le Monde, 2 September 2016, available at: https://tinyurl.com/z7yz78g.

89 Court of Cassation, Decision No. 16-82.692 (Criminal Chamber), 12 July 2016, available at: www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000032900180. The Court ruled that there is no need to prove that the person accused of criminal AMT actively participated in the preparation or the realization of the crime itself, only that he was a part of that group. AMT as a criminal offence is “an independent offence and is distinct from the crimes prepared or committed by some of its perpetrators and from the crimes characterized by certain facts that concretize it” (author's translation).

90 Colette Capdeville and Pascal Popelin, Report No. 3515, National Assembly, 18 February 2016: “This change in the scale of sentences would undoubtedly upset the balance established by the legislator to this day. Such a criminalization would have the effect of having these offences tried by the Paris Special Assize Court, with the risk of overcrowding of the antiterrorist justice system and a loss of flexibility for the magistrates. For these reasons, my opinion is unfavourable. The Commission rejects the amendment.”

91 See Catherine Champrenault, Attorney-General of the Court of Appeal of Paris, in a recent interview by Jean-Baptiste Jacquin, Soren Seelow and Elise Vincent, “Justice antiterroriste: ‘Nous constatons un durcissement de la repression’”, Le Monde, 29 March 2018.

92 M. Mercier, above note 80, p. 15. As of 1 December 2016, the prosecution had opened 183 criminal inquiries (i.e., inquiries on the grounds of a crime rather than a délit) under the future competence of the Special Assize Court, targeting 483 individuals for AMT in relation to the ongoing jihadist violence in Iraq and Syria. This represents a massive increase over the case numbers of previous years.

93 F. Foley, above note 44, p. 205.

94 See Garapon, Antoine and Papadopoulos, Ioannis, Juger en Amerique et en France, Odil Jacob, Paris, 2003, p. 98Google Scholar (unofficial translation): “In France, the outcome of the assizes trial is often not in doubt, as indicated by the very low number of acquittals compared to that of the English courts …. Not because the French courts are more arbitrary, but because the cases that are heard are only those in which the facts are firmly established. The cases will reach this point after having been deliberated before by other judges, the investigating magistrate and the investigating chamber. Acquitting in the assizes trial is tantamount to invalidating the work of these magistrates, who have already taken decisions on the merits.”

95 Court of Cassation, Decision No. 16-82.692 (Criminal Chamber), 12 July 2016, available at: www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000032900180.

96 Indictment before the Assize Court, Investigation No. 2201/14/4, 20 June 2017, p 21. The accused have been detained since June 2014 and the trial started on 20 March 2018.

97 The Lafarge case may illustrate well this tendency. The Franco-Swiss Lafarge company, in order to maintain the functioning of its cement factory in Syria within an ISIL-controlled zone, was “paying for passes issued by the jihadist organization and buying raw materials necessary for cement production such as oil and pozzolana in areas under ISIS's control”. While the lawyers representing clients in a lawsuit against the company claimed that “[b]y having business relations with the terrorist group ISIS in Syria, this company may have taken part in the financing of the group, being therefore complicit in war crimes and crimes against humanity”, the investigation was not opened within the war crimes unit; instead, a joint investigation was initiated in the financial investigative division. Sherpa, “Important Step in the “Lafarge in Syria” Case: Nomination of Three Investigative Judges”, 13 June 2017, available at: www.asso-sherpa.org/important-step-in-the-lafarge-in-syria-case-nomination-of-three-investigative-judges; Sherpa, “Lafarge Sued for Financing ISIS”, available at: www.asso-sherpa.org/service/lafarge-sued-for-financing-isis-and-complicity-in-war-crimes-and-crimes-against-humanity-in-syria.

98 This reform was adopted in November 2018. Loi de la programmation 2019–2022 et de Réforme pour la Justice, No. 1349, 6 November 2018, available at: www.assemblee-nationale.fr/dyn/15/amendements/1349/CION_LOIS/CL999.

99 Antoine Garapon and Michel Rosenfeld, Démocraties sous stress: Les défis du terrorisme global, Presses Universitaires de France, Paris, 2016, p. 128.

100 See for example, CNCDH, “Quand la logique sécuritaire heurte la liberté fondamentale de manifester”, 10 January 2019, available at: www.cncdh.fr/fr/publications/quand-la-logique-securitaire-heurte-la-liberte-fondamentale-de-manifester; UN Office of the High Commissioner for Human Rights, “France: UN Experts Denounce Severe Rights Restrictions on ‘Gilets Jaunes’ Protesters”, press release, Geneva, 14 February 2019, available at: www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24166&LangID=E.