Committee against Torture hears response of France

Committee against Torture
AFTERNOON

28 April 2010

The Committee against Torture this afternoon heard the response of France to questions raised by Committee Experts on the combined fourth to sixth periodic reports of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to a series of questions raised by the Committee members on Tuesday, 27 April, the delegation, which was led by Jean-Baptiste Mattei, Permanent Representative of France to the United Nations Office at Geneva, noted that, for persons in provisional custody suspected of involvement in organized crime or terrorist activities, such persons were immediately informed of the reason for their arrest, their rights, and the length of their detention. No later than three hours following being taking into custody, such persons could have a member of their family or their employer informed. Such detainees automatically received a medical examination, and they had the right to have an examination by another doctor at their request. Such persons also had the right to request a lawyer, but only had access to their lawyer after the first 72 hours of custody. Those restrictions were a result of the severity and complexity of the crimes concerned and the prior existence of networks that allowed for the commission of those crimes. These measures were necessary to ensure that the suspects could not make contacts with those networks.

As for the use of Taser guns in prisons, those had only been granted use in a temporary way by prison authorities, and were subject to strict rules. So far, such stun guns had only been used a few times and had not resulted in any physical harm. It was not being contemplated now to extend the use of those weapons in the prison context, and that would only be done in future following extensive research into the possible effects. In terms of their use by the police force and the gendarmerie, that had been approved on 9 January 2006 and the decision had been reviewed many times, most recently in January 2009. It should be underscored that the weapons were less harmful than regular guns and it was for that reason that they were used, to mitigate possible impacts on those on whom they were used. Full training and information was given on the use of these weapons, follow-up treatment, the need for proportionality in their use, and the possible impact on the person, considering their age and conditions. Such weapons had been used 450 times in 2008 and 460 times in 2009, and so far there had been no substantial injury following their use.

Other issues touched on in the delegation's answers were the definition of torture and sanctions for that crime, the issue of suicides in places of detention, the situation of asylum-seekers and protections for female and minor asylum-seekers, psychiatric hospitalizations, investigations into allegations of torture, protections for detainees and measures to mitigate overcrowding in prisons.

The Committee will submit its conclusions and recommendations on the report of France towards the end of the session on Friday, 14 May.

As one of the 146 States parties to the Convention against Torture, France is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.

When the Committee reconvenes at 10 a.m. on Thursday, 29 April, it is scheduled to begin consideration of the second periodic report of Jordan (CAT/C/JOR/2).

Response of France

Responding to a series of questions raised by Committee Experts on Tuesday, 27 April, the delegation of France said that, with regard to French legislation, the measures currently in force covered the provisions and the scope of the definition set out in Article 1 of the Convention. The system defined torture and set a penalty of 20 years imprisonment for persons responsible for such acts.

As for France's position that the crime of torture was prescriptible, the delegation noted that the Convention did not provide for a statute of limitations for torture. While France understood the concern of the Committee in that regard, it did not at present contemplate changing its laws which might be prejudicial to uniformity of its legal system.

Regarding the wave of suicides in the French Telecom Company, many investigations had been undertaken into that issue. Judicial officials had directly contacted families of victims to look into possible links between the suicides and any harassment or bullying that could constitute grounds for involuntary suicide.

On asylum requests, France was unusual in that it had always permitted requests for asylum to be made in an Embassy. In 2009, some 99 requests for asylum were related through consular channels. Some 80 received a positive response and visas were granted for the individuals to come to France. Overwhelmingly those requests came from persons who had been persecuted for their pursuit of freedom. Other requests, received at the borders – 93 per cent of them being received at Roissy Airport – did not automatically allow those requesting to enter French territory. However, it did carry certain guarantees, including an examination of the request by an independent public body specializing in these activities, with the assistance of an interpreter. In addition, such requests could only be guaranteed if it was "manifestly unjustified", and any negative decision on such a request could be appealed.

In 2009, 3,200 persons had presented asylum requests at the border, and 27 per cent of cases had received positive replies, the delegation added.

A third area where asylum application could be made was on French territory. That application could be made at any time and at no time would an applicant's residence be held against them.

Regarding the priority asylum procedures, the number of those was going down. In 2009, 8,632 applicants were considered under the priority asylum procedure, some 22 per cent of the total number of requests, a reduction of 30 per cent since 2008, the delegation noted.

The establishment of the secure list of countries to which individuals could be expelled was not a decision taken by the French agency responsible for refugees. That was a decision of the French Governing Council, which was composed of members of the French Government, but also members of Parliament and with advice and assistance of other bodies, including the United Nations Refugee Agency, the delegation clarified.

In response to concerns expressed about women asylum-seekers, the delegation said that, according to statistics, 34 per cent of all asylum requests were made by women and women made up 49 per cent of the total number of those afforded protection. The larger percentage of asylum requests granted for women than for men could be explained by the fact that women were particularly vulnerable to abuse, such as forced marriages and female genital mutilation, both of which were reasons for granting asylum.

Turning to the issue of asylum-seeking minors, safeguards were in place to ensure that they could see a judge. Such children systematically benefited from hearings before any forced departure and 100 per cent of those children received assistance from an ad hoc administrator in any proceedings. There had been difficulties in the past, but those had been overcome. Any expulsion of a child was associated with all necessary precautions, including that he or she would be met by someone in their home country when they were returned. Moreover, following a 2009 interministerial working group on unaccompanied alien children, a number of fresh initiatives had been implemented, including to further improve conditions for the working of ad hoc administrators in holding areas in airports; and a shelter area for children under 16 was being built.

Regarding expulsion measures undertaken for reasons of public order, the Committee had asked for further information on the situation of two individuals: Mr. Daoudi and Mr. Ferchichi. Concerning Mr. Ferchichi, the delegation noted that he was a Tunisian national who had been condemned to a sentence of six years' imprisonment in 2008, along with a permanent prohibition of stay on French territory, for involvement in terrorist activities. Given that his fears of running the risk of harm on return to his home country were found to be well founded by the Office for the Protection of Refugees and Foreigners on 22 December 2009, the expulsion of Mr. Ferchichi to his home country was no longer contemplated. Since then, steps were taken to find another country in which he can serve out his sentence. Mr. Ferchichi had thus been sent to Senegal on 24 December before the request of the European Court to suspend that measure had been received by the Ministry of the Interior. Since then, that Court had raised its request, after establishing that Mr. Ferchichi's fears of being maltreated in Senegal, or of being repatriated from Senegal to his home country, were not unfounded.

In the case of Mr. Daoudi, an Algerian national, he was similarly sentenced in 2005 to six years' imprisonment along with a permanent prohibition of stay on French territory for his involvement in terrorist affairs. On 31 July 2009, it was recognized by the National Court of Asylum that his fears regarding his return to his home country were well founded. In the same vein, the European Court of Human Rights had ordered on 3 December 2009 that a repatriation of Mr. Daoudi would represent a violation of his right not to be refouled. As a result, Mr. Daoudi could not be sent home and was currently under house arrest and had to report regularly to the gendarmerie.

Concerning requests made by the Committee to the French authorities, it was only in two very serious cases of threat to the public order that the French Government had not been in agreement with the recommendations put forward by the Committee.

On the issue of psychiatric hospitalizations, the number of such measures taken had been decreasing steadily in France since 2003. The delegation reported that the number of such hospitalizations had fallen 7 per cent between 2003 and 2007, although it was true that the number had grown in the previous five-year period. The hospitalization procedure had strict rules and procedures to be followed, and during the course of such hospitalizations, the administrative, medical and judicial authorities regularly followed up on the status of such patients to ensure their rights were respected. In addition, persons hospitalized against their will could contest the decision before a departmental commission, and also had recourse to the courts.

The rights of persons hospitalized against their will would soon be strengthened with the adoption of a draft law on the subject that was currently before the Parliament, the delegation added.

For persons in provisional custody suspected of involvement in organized crime or terrorist activities, the delegation noted that such persons were immediately informed of the reason for their arrest, their rights, and the length of their detention. No later than three hours following being taking into custody, such persons could ask to have a member of their family or their employer to be informed. Such detainees automatically received a medical examination, and they had the right to have an examination by another doctor. Such persons also had the right to request a lawyer, but only had access to their lawyer after the first 72 hours of custody. Those restrictions were a result of the severity and complexity of the crimes concerned and the prior existence of networks that allowed for the commission of those crimes. These measures were necessary to ensure that the suspects could not make contacts with those networks. Among crimes leading to this exceptional regime were crimes of torture and acts of barbarity, crimes of organized groups of kidnapping, and crimes of human trafficking.

In terms of investigations of torture allegations, there were a number of measures in place to prevent conflict of interest between the services of the police and the gendarmerie tasked with investigating complaints of ill-treatment or others, which might have been committed by members of the same administration or even the same service. First of all, judicial inquiries were always carried out under the supervision of a judge, the Procurator of the Republic, who was always subject to monitoring by the court of appeal. In addition, the law of 3 August 2009 on the national gendarmerie had the effect of providing that such inquiries were assigned to a service other than the one the alleged perpetrator belonged to. Decisions that there were insufficient grounds to proceed to a prosecution could be contested by the person bringing the original complaint, either appealing directly to the Procurator General or bringing a civil case before the courts.

On the law of 10 March 2010 which sought to reduce criminal recidivism, the delegation said it was true that the new law extended the scope of monitoring of persons who had served their sentences and were again at liberty. Under this new law, that term could extend to two years' probation following release. The law sought to provide greater guarantees, in particular to protect victims. Moreover, the law reaffirmed that placement in a socio-medico-legal facility would only be used as a last recourse.

As for the use of Taser guns in prisons, those had only been granted use in a temporary way by prison authorities, and were subject to strict rules. So far, such stun guns had only been used a few times and had not resulted in any physical harm. It was not being contemplated now to extend the use of those weapons in the prison context, and that would only be done in future following extensive research into the possible effects. In terms of their use by the police force and the gendarmerie, that had been approved on 9 January 2006 and the decision had been reviewed many times, most recently in January 2009. It should be underscored that the weapons were less harmful than regular guns and it was for that reason that they were used, to mitigate possible impacts on those on whom they were used. Full training and information was given on the use of these weapons, follow-up treatment, the need for proportionality in their use, and the possible impact on the person, considering their age and conditions. Such stun guns could only be used by those who had received training, for the prescribed amount of time and on prescribed areas of the body (i.e. not on the face, etc.). Such weapons had been used 450 times in 2008 and 460 times in 2009, and so far there had been no substantial injury following their use.

The Inspector General undertook regular visits of prison facilities and issued reports. For its part, the Prison Administration regularly reported on the implementation of those measures. There were no plans yet to reform the Inspector General institution, which was a recent one in France. It had competencies over all places of detention – including psychiatric hospitals – any place where persons were deprived of their liberty by State officials. Why did that not include places outside of French territory over which France had control? Essentially, because that led to an extremely complex legal situation. It had been decided therefore not to look at the international situation, and it was deemed that present controls were sufficient.

Of major concern with regard to prisons was the case of suicides of detainees and convicts. A plan of action was developed in 2009 and an experts committee was tasked with following this issue. They noted that suicides often corresponded with increases in disciplinary penalties. Emergency actions were undertaken for those at acute risk of suicide, so that clothing and bedding, for example, could not be used to commit suicide. Volunteers from the Red Cross were also working with prisoners under threat of suicide in a kind of "buddy" system.

As to the possible relationship between overcrowding and suicides in prisons, the delegation noted that, as at 1 April 2010, 61,000 persons were held in prison establishments in France, which had a capacity for 56,000 individuals. That meant a 109 per cent occupancy rate. That was clear improvement since 2008, when the occupation rate stood at 120.5 per cent for places of detention. So efforts were being made to address this problem. As for the overseas territories, it was noted that a new building programme that sought to address overcrowding in prisons was particularly targeted to those territories and new centres and renovated ones would be opened soon in a number of areas, including in Noumea.

Full body searches of prisoners were generally prohibited and could only be done under very limited circumstances. They could only be done on order from the judicial authorities, and not the prison authorities, and they had to be carried out by a doctor, the delegation said.

Alternative sentencing was on the increase, with a 25 per cent increase in sentences to wear electronic surveillance devices in this year alone, the delegation said.

Turning specifically to the issue of the overseas territories, the delegation noted that the regimes in place in the various territories were diverse and complicated. The Convention against Torture was applicable in all French territory, including overseas territories, as was criminal law and laws of criminal procedure, and the Procurator General had undertaken visits to Guyana and Mayotte in 2009. However, the law in mainland France was geared to conditions in mainland France and not that in the territories. For overseas territories with totally different conditions than on the mainland, adjustments had had to be made to the laws. In Guyana, for example, there was a lot of illegal immigration. In 2008, renovation work was undertaken on the prison facilities in Mayotte and a new centre would be built in 2011. France had also set up discussions with the Comoros, but those had been held up.

Concerning guarantees for officers who refused to follow illegal orders, the delegation said that in France, in the military and the gendarmes, an article set out that the military owed obedience to their superiors, but that they could not be ordered or made to carry out acts contrary to the law. For officials of the National Police, their Code of Ethics set out that any member who was a witness to violence or humiliating or degrading behaviour carried out on an individual had the responsibility to report such behaviour. So members of the police were required to make known to the Public Procurator any illegal activity of which they were aware, and were subject to sanctions if they did not do so.

Further Comments by Committee Experts

CLAUDIO GROSSMAN, the Committee Chairperson serving as Rapporteur for the Report of France, reiterated concerns about the definition by the courts of torture in France as relating to acts of "exceptional seriousness that amount to more than mere violence " rather than using the language as set out in the Convention, regarding acts that inflicted "severe pain or suffering". Those differing definitions could lead to different results and there was a need for conformity.

Mr. Grossman also reverted to the issue of stun guns, as the Committee was worried about the future problems that could entail. Yes, it was claimed that they were used so as to provide an alternative to greater force, but there were studies that showed the harmful effects of these new technologies, which were not yet fully known. The jury was out on this issue.

Concerns about counter-terrorism remained. Mr. Grossman said that the Committee was not worried about systematic torture in France; it was more a question of ensuring that preventive measures and protections were in place so that acts of torture could not occur.

ESSADIA BELMIR, the Committee Expert serving as Co-Rapporteur for the Report of France, said with respect to the waiting areas for those seeking asylum at the border, she was concerned that they were not subject to the full effect of the law and that they had an unclear legal status. Reports had been received from individuals held in those areas alleging that they had been the victims of torture.

It was said that asylum-seekers had the right to appeal a negative decision on their asylum request, but she would like more details of the time limits for such appeals and the exact procedure to be followed.

Regarding the penitentiary law, which gave the Penal Administration wide discretion over issues touching on the human rights of detainees, Ms. Belmir was concerned that it allowed an administrative authority to have too wide a latitude to manage fundamental human rights issues.

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