Human Rights Committee Concluding Observations on France

In its concluding observations of July 2008 (UN.Doc. CCPR/C/FRA/CO/4) on the periodic report of France, the Human Rights Committee has established some principles as for what concern pre-trial and on remand detention in counter-terrorism cases, on detention of persons who already served their sentence but are perceived as dangerous for society, on administrative detention for migrants, on cases of ill-treatment on them and on the procedure in order to respect the principle of non-refoulement in cases of expulsion of aliens. Finally, the Human Rights Committee also addressed the problem of centralised databases of information in the light of the right to privacy.

14. While noting the threat to life posed by acts of terrorism, the Committee is concerned that Act No. 2006/64 of 23 January 2006 permits the initial detention of persons suspected of terrorism for four  days, with extensions up to six days, in police custody (garde à vue), before they are brought before a judge to be placed under judicial investigation or released without charge. It also notes with concern that terrorism suspects in police custody are guaranteed access to a lawyer only after 72 hours, and access to counsel can be further delayed till the fifth day when custody is extended by a judge. The Committee also notes that the right to remain silent during police questioning, in respect to any offence, whether related to terrorism or not, is not explicitly guaranteed in the Code of Criminal Procedure.  (articles 7, 9 and 14)
    The State party should ensure that anyone arrested on a criminal charge, including persons suspected of terrorism, is brought promptly before a judge, in accordance with the provisions of article 9 of the Covenant. The right to have access to a lawyer also constitutes a fundamental safeguard against ill-treatment, and the State party should ensure that terrorism suspects placed in custody have prompt access to a lawyer. Anyone arrested on a criminal charge should be informed of the right to remain silent during police questioning, in accordance with article 14, paragraph 3 (g), of the Covenant.

15. The Committee remains concerned about the use of long-term pre-trial detention in terrorism and organized crime cases, extending for periods up to four years and eight months. The Committee notes that there is access to defence counsel and periodic review of the custodial decision by “liberty and custody judges” (juges des libertés et de la détention) in regard to the factual basis and claimed necessity for detention, as well as a right of appeal. Nonetheless, the institutionalized practice of extended investigative detention, before proceeding to a final charge and criminal trial, is difficult to reconcile with the Covenant’s guarantee of trial within a reasonable time.  (articles 9 and 14)
    The State party should limit the duration of pre-trial detention, and reinforce the role of “liberty and custody judges” (juges des libertés et de la détention). 

16. The Committee is concerned by the State party’s claim of authority under Act No. 2008/174 (25 February 2008) to place criminal defendants under renewable one-year terms of civil preventive detention (rétention de sureté) because of “dangerousness”, even after they have completed their original prison sentences. While the Constitutional Council has prohibited retroactive application of the statute, and the judge who sentences a criminal defendant contemplates the possibility of future civil preventive detention as part of the original disposition of a case, nonetheless, in the view of the Committee, the practice may remain problematic under articles 9, 14 and 15 of the Covenant. (articles 9, 14 and 15) 
    The State party should review the practice of seeking to detain criminal defendants for “dangerousness” after they have served their prison sentences, in the light of the obligations imposed by articles 9, 14 and 15 of the Covenant.

18. The Committee is concerned that large numbers of undocumented foreign nationals and asylum-seekers are detained in unsuitable airport waiting areas and administrative detention centres (centres de rétention administrative and locaux de rétention administrative). The Committee is further concerned about reports of overcrowding, lack of facilities for personal hygiene, and inadequate food and medical care, especially in the Overseas Departments and Territories, and that regular independent inspections are not carried out in such centres. The Committee is concerned about the status of unaccompanied children in such detention centres and the reported lack of arrangements for the protection of their rights, and safe return to their home communities. (articles 7, 10 and 13)
     The State party should review its detention policy in regard to undocumented foreign nationals and asylum-seekers, including unaccompanied children. The State party should reduce overcrowding and improve living conditions in such centres, especially those in the Overseas Departments and Territories.

19. The Committee remains concerned about allegations that foreign nationals, including some asylum-seekers, while detained in prisons and administrative detention centres, are subjected to ill-treatment by law enforcement officials, and that the State party has failed to investigate and appropriately punish such human rights violations. The Committee notes the absence of detailed statistical information concerning such alleged incidents of ill-treatment of foreign nationals, including the sanctions imposed on the perpetrators. (articles 7 and 9) 
    The State party should have no tolerance for acts of ill-treatment perpetrated by law enforcement officials against foreign nationals, including asylum-seekers, who are detained in prisons and administrative detention centres. The State party must establish adequate systems for monitoring and deterring abuses and should develop further training opportunities for law enforcement officials.
20. The Committee appreciates the State party’s statement that it seeks to honour the rule of “non-refoulement” to avoid the return of any persons to countries where they face the real risk of abusive treatment. Nonetheless, it is concerned by reports that foreign nationals have in fact been returned by the State party to such countries, and subjected to treatment that violates article 7 of the Covenant. The Committee has also received reports that foreign nationals are often not properly informed of their rights, including the right to apply for asylum, and often lack access to legal assistance. The Committee notes that foreign nationals are required to submit asylum applications within a maximum of five days after their detention, and that such applications must be drafted in French, often without the help of a translator.  The right of appeal is also subject to a number of questionable restrictions, including a 48-hour time limit to lodge an appeal, and absence of the automatic suspension of deportation pending appeal in “national security” removals. The Committee is also concerned that under the State Party’s so-called “priority procedure” (procédure prioritaire), physical deportation occurs without waiting for the decision of any court in removals to so-called “safe countries of origin” (pays d’origine sûr), apparently including Algeria and Niger. In addition, no recourse to the courts is available to persons deported from the overseas territory of Mayotte, involving some 16,000 adults and 3,000 children per year, nor in French Guiana or Guadeloupe.  (articles 7 and 13)
    The State party should ensure that the return of foreign nationals, including asylum seekers, is assessed through a fair process that effectively excludes the real risk that any person will face serious human rights violations upon his return. Undocumented foreign nationals and asylum-seekers must be properly informed and assured of their rights, including the right to apply for asylum, with access to free legal aid. The State party should also ensure that all individuals subject to deportation orders have an adequate period to prepare an asylum application, with guaranteed access to translators, and a right of appeal with suspensive effect.  
     The State party should further recognize that the more systematic the practice of torture or cruel, inhuman or degrading treatment, the less likely it will be that a real risk of such treatment can be avoided by diplomatic assurances, however stringent any agreed follow-up procedure may be. The State party should exercise the utmost care in the use of such assurances and adopt clear and transparent procedures allowing review by adequate judicial mechanisms before individuals are deported, as well as effective means to monitor the fate of the affected individuals. 

22. While acknowledging the important role played by the National Commission of Information Technology and Liberties (Commission nationale de l’informatique et des libertés, CNIL) in protecting the integrity and confidentiality of information concerning a person’s private life against any arbitrary or unlawful interference emanating from public authorities or private individuals or bodies, the Committee is concerned at the proliferation of different databases, and notes that according to reports received, the gathering, storage and use of sensitive personal data contained in databases such as EDVIGE (exploitation documentaire et valorisation de l’information générale) and STIC (système de traitement des infractions constatées) pose concerns with regard to article 17 of the Covenant. (articles 17 and 23)
    The State party should take all appropriate measures to ensure that the gathering, storage and use of sensitive personal data are consistent with its obligations under article 17 of the Covenant. Taking into account general comment No. 16 (1988) on Article 17 (Right to privacy), the State party should in particular ensure that
    (a) The gathering and holding of personal information on computers, data banks and other devices, whether by public authorities or private individuals or bodies, is regulated by law; 
    (b) Effective measures are adopted to ensure that such information does not reach the hands of persons who are not authorized by law to receive, process and use it; 
   (c) Individuals under its jurisdiction have the right to request rectification or elimination of information when it is incorrect or has been collected or processed contrary to the provisions of the law;
    (d) EDVIGE is restricted to children above the age of thirteen who have been convicted of a criminal offence; 
    (e) STIC is restricted to individuals who are suspected in an enquiry of having committed a criminal offence.

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