The Investigation and Prosecution of Terrorist Suspects in France

Abstract

This study provides an account of criminal investigations in France and the ways in which counter-terrorism investigations are conducted.

It gives a general background to French criminal procedure, setting out in detail the features of the two models of criminal investigation in which the police carry out the enquiry supervised either by the procureur (the public prosecutor) or the juge d'instruction. It explains the nature of the judicial function within the French legal process, as well as the organisation of the police, gendarmerie and intelligence services. The centralised nature of the procedure is described, together with the inquisitorial roots of the legal system, its dependence on written evidence and the relatively diminished role afforded the defence lawyer as a result of judicial supervision.

It then goes on to look at the features of counter-terrorism investigations in France. There is an emphasis on prevention and disruption as well as on repression. Terrorism offences are defined in broad terms, allowing investigation and prosecution before any concrete act has taken place and more controversially, the arrest, detention and questioning of tens of individuals suspected of associating with others involved in terrorist networks. The investigation of terrorist activity is highly centralised and highly specialised. All cases are dealt with in Paris by a small group of procureurs and juges d'instruction who work closely together. Intelligence plays a key part in these investigations: officers carry out an administrative function in intelligence gathering under the control of the Interior Minister, but may also act as judicial police under the supervision of the judiciary. In this way, intelligence can be 'judicialised' when it is produced under the supervision of a magistrat and so be made admissible as evidence.

This close cooperation is seen as a strength, providing an impressive armoury of tools and powers and allowing investigations to utilise the widest range of information available. It is also seen as a weakness, the juge d'instruction being criticised for an unquestioning and excessive reliance upon information from intelligence sources. The weak role of the defence and the tradition of accepting material that is produced during the pre-trial enquiry as credible evidence, both raise serious concerns about the reliability of 'evidence' produced in this way. The wide powers exercised by a small specialist group of magistrats in counter-terrorism cases is also criticised as being subject to inadequate control and accountability. Defence requests are rarely acceded to and the threshold of evidence required to challenge the evidence and findings of the juge d'instruction is high. The importance of defence scrutiny of the prosecution case is less significant in a procedure that considers the dossier to be the product of an independent and neutral judicial enquiry.

Keywords: Terrorism, French criminal procedure, comparative criminal procedure