to the French Government on the visit to France between 27 October
and 8 November 1991 by the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT), and
reply from the French Government. (In French).
report by the French Government in response to the report by the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT) on its visit to France between 27 October and
8 November 1991. (In French).
* The annexes
may be consulted at the Office of the United Nations High Commissioner
for Human Rights.
signed the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted at New York by the United
Nations General Assembly on 10 December 1984 (hereafter referred to
as "the Convention"), when it was opened for signature, on 4 February
1985. Act No. 85-1173 of 12 November 1985 authorized its ratification.
France deposited its instrument of ratification on 18 February 1986.
The Convention, which entered into force on 26 June 1987, was published
in France by Decree No. 87-916 of 9 November 1987. All the formalities
required by both international and internal law have therefore been
2. In the
French legal system, which is monistic, "Treaties or agreements duly
ratified or approved shall, upon their publication, have an authority
superior to that of laws, subject, for each agreement or treaty, to
its application by the other party" (Constitution, art. 55). This
primacy naturally applies in the case of the Convention and is binding
on the legislature, executive, administration and judiciary.
has subscribed to the principle stated in article 5 of the Universal
Declaration of Human Rights, adopted by the United Nations General
Assembly on 10 December 1948 ("No one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment") and is
international instruments prohibiting torture and treatment, in particular:
Covenant on Civil and Political Rights, adopted by the United
Nations General Assembly on 16 December 1966 (article 7: "No one
shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected
without his free consent to medical or scientific experimentation.");
The European Convention
for the Protection of Human Rights of the Council of Europe, dated
4 November 1950 (article 3: "No one shall be subjected to torture
or to inhuman or degrading treatment or punishment.").
4. In the
context of these two conventions, France has entered into commitments
allowing individuals who consider that the rights guaranteed under
them have been violated to bring actions against the French State
in the bodies established by the conventions. France is a party to
the Optional Protocol to the International Covenant on Civil and Political
Rights, which established the right of individuals to submit communications
to the Human Rights Committee. It has also subscribed to the declaration
contained in article 25 of the European Convention on Human Rights
recognizing the competence of the Commission to receive individual
on 9 January 1989, France ratified the European Convention for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment,
which it signed on 26 November 1987. For the prevention of ill-treatment
this Convention, which came into force on 1 February 1989, instituted
special machinery based on a committee empowered to visit any place
under a State party's jurisdiction where persons are deprived of their
liberty by decision of a public authority. The committee, the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT), is made up of experts. After each visit, it draws
up a report setting out its findings and such recommendations as it
deems it necessary to make to the State party visited. It is incumbent
on the State party to respond to those comments in writing. Subject
to the agreement of the State party concerned, all the information
may be published.
6. CPT has
made four visits to France: one in 1991, two in 1994 (one each to
Paris and Martinique) and one in October 1996. France raised no objection
to the publication of the reports made by CPT following the first
three of those visits (the reports on the visits made to Paris in
1991 and 1994 are annexed to the present document and the report on
the visit made in 1994 to Martinique is expected to be published soon).
The report on the latest visit is to be transmitted to the French
Government in the course of 1997.
relating to the articles of the Convention
7. This article
does not in itself call for any special implementation measures on
the part of the States parties. Paragraph 1 seeks to provide a definition
of torture for the purposes of the Convention by specifying the acts
that come within its sphere of application. It should be noted that
this definition is the first to appear in an international instrument.
Consequently, the clause contained in paragraph 2, applies, as far
as international instruments are concerned, only to future instruments.
legislation does not contain any definition of torture within the
meaning of the Convention. However, the Ministry of Justice circular
of 14 May 1993 on the new Criminal Code that came into force on 1
March 1994 refers expressly to article 1 of the Convention:
there may be qualified as torture within the meaning of article
1 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted at New York on 10 December
1984, "any act whereby severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person". It should
be noted, however, that the provisions of the new Criminal Code
are far wider in scope than those of the Convention, which concern
only acts committed by a public official for specified purposes.
689-1 and 689-2 of the new Code of Criminal Procedure that came into
force on 1 March 1994 together give French courts jurisdiction to
prosecute and try anyone in France who has committed torture outside
French territory. Article 689-2, indeed, refers to the definition
in article 1 of the Convention:
For the purposes of
the application of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment adopted at New York
on 10 December 1984, any person guilty of torture within the meaning
of article 1 of the Convention may be prosecuted and tried under
the conditions stated in article 689-1.
10. The division
among legislative, administrative, judicial and other measures of
the arrangements that each State party must make to prevent acts of
torture in any territory under its jurisdiction, depends on the constitutional
system of the State in question.
11. In France,
under article 34 of the Constitution, laws establish the regulations
governing "civil rights and the fundamental guarantees granted to
citizens for the exercise of their public liberties (...) determination
of crimes and misdemeanours and the penalties imposed therefor, criminal
(...)". Legislative authorization is also necessary for the ratification
of international treaties and agreements that amend legislative provisions.
12. In addition
to the laws authorizing ratification of the relevant international
instruments, essentially the Convention, the legislation making torture
an offence, setting the penalties for it and defining the judicial
remedies available to victims also has to be taken into consideration.
The judiciary, "the guardian of individual liberty" in the words of
article 66 of the Constitution, acts within the framework thus set
by the law. It may be invoked, for example, when a public official
commits an act that violates the legally protected rights and freedoms
of the individual (theory of assault).
of torture committed by officials would come in particular under articles
222-1 and 222-3 of the new Criminal Code:
Article 222-1: "The
subjection of persons to torture or to acts of barbarity shall
be punishable by 15 years' rigorous imprisonment";
Article 222-3: "The
offence referred to in article 222-1 shall be punishable by 20
years' rigorous imprisonment if committed:
In or in connection
with the performance of his functions or duties by a person vested
with public authority or a public servant".
432-4 to 432-6 of the new Criminal Code punish arbitrary infringement
of others' freedom of movement by persons endowed with public authority
or public servants. In particular, article 432-4 provides as follows:
The arbitrary ordering
or performance by a person vested with public authority or a public
servant in or in connection with the performance of his functions
or duties of an act that infringes freedom of the person shall
be punishable by seven years' imprisonment and a fine of 700,000
When the act consists
in detention or restraint for a period of more than seven days,
the penalty shall be increased to 30 years' rigorous imprisonment
and a fine of 3 million francs.
specifically, acts of torture ascribed to military personnel (who
in France include gendarmes) are prosecuted under Act No. 82-261 of
21 July 1982 reorganizing the military system of justice: the government
procurator's office operates under the sole supervision of the Minister
(a) In the
ordinary law courts (the courts of major jurisdiction and the appeal
courts), competent to deal with all ordinary offences committed in
French territory by military personnel, including offences committed
while on but not in the course of duty;
(b) In specialized
courts (the competent chambers of the courts of major jurisdiction)
for ordinary crimes and offences committed in the course of duty and
the military offences specified in book III of the Code of Military
France, in the court of Baden-Baden (Germany), which has jurisdiction
over virtually all military and ordinary offences committed by any
French national associated with the French forces in Germany;
the military court of Paris, which has jurisdiction over offences
committed in or outside French military compounds while on service
in States bound to France by a specific convention on military justice.
the law prohibits and sets penalties for torture; the judiciary punishes
it. The mere existence of this punitive system has an obvious preventive
and deterrent effect. It is supplemented by administrative measures
consisting primarily of instructions from the executive to public
officials on how to behave in order to comply with the law. These
will be examined in detail under each article.
17. A state
of war cannot be invoked in France in order to justify torture.
Article 383 of the Code of Military Justice states that acts contrary
to the laws and customs of war constitute ordinary crimes or offences
and by that token are subject to criminal penalties. The Code also
punishes purely military offences, including "incitement to commit
acts contrary to duty or discipline" (article 441). Similarly, the
Act of 13 July 1972, amended by Act No. 75-1000 of 30 October 1975
establishing the general military regulations specifies that military
personnel may not carry out acts that are contrary to the law, the
customs of war or international conventions or acts that constitute
crimes or offences (article 15). Lastly, the general disciplinary
regulations for the armed forces, amended by Decree No. 75-675 of
28 July 1975, state explicitly in article 9 bis, on respect
for the rules of international law applicable to armed conflicts,
that, pursuant to duly ratified or approved international conventions,
military personnel are prohibited from "committing violence to life
and person or the personal dignity of the sick, wounded or shipwrecked,
prisoners or civilians, in particular murder, mutilation, cruel treatment
or any form of torture".
No. 59-147 of 7 January 1959, on the general organization of the defence
system, defines the conditions for mobilization and state of alert
in the event of a threat of war. If a mobilization or state
of alert should be ordered, the Code of Criminal Procedure (article
699-1) stipulates that the Code of Military Justice may be rendered
applicable by decree in the Council of Ministers.
law sets forth very strict definitions for the various states of
state of siege is defined by the Act of 9 August 1849, amended
by the Act of 3 April 1878. It may be decreed in cases of imminent
danger resulting from a foreign war, a civil war or an armed uprising.
Under article 36 of the Constitution, this decision must be taken
in the Council of Ministers. A state of siege may not be maintained
for more than 12 days without the approval of Parliament. It involves
mainly the transfer of police powers and powers relating to the maintenance
of law and order to the military authority;
state of emergency is regulated by the Act of 3 April 1955.
It may be ordered by the Council of Ministers in cases of imminent
danger resulting from serious breaches of law and order or from public
disasters. It involves an extension of police powers counterbalanced
by specific guarantees. Article 700 of the Code of Criminal Procedure
states that "In the event of a declared state of siege or emergency,
a decree in the Council of Ministers (...) may establish territorial
courts of the armed forces under the conditions provided for by the
Code of Military Justice. The jurisdiction of these courts derives
from the Code of Military Justice for time of war and specific provisions
of the legislation on states of emergency and states of siege";
main effect of recourse to article 16 of the Constitution is
to strengthen the powers of the President of the Republic, who must
then take action to restore the constitutional authorities to normal
specific procedures particular to each one, the various states of
emergency modify the normal division of authority, in particular in
police matters and certain judicial procedures. They do not, however,
affect the legal provisions and regulations prohibiting torture. Any
acts of torture committed under them would therefore be punished as
severely as in normal times.
21. In French
law, an order by a superior may be invoked in justification of an
act that itself constitutes a crime or offence only under the conditions
set forth in article 122-4 of the new Criminal Code, which stipulates:
No criminal responsibility
shall attach to a person who commits an act that is prescribed
or authorized by a law or regulatory instrument.
No criminal responsibility
shall attach to a person who commits an act ordered by a legitimate
authority unless that act is manifestly unlawful.
22. It follows
from these provisions that a manifestly unlawful order from a lawful
authority cannot in itself justify the commission of an offence by
an obedient subordinate. The law cannot in any circumstances order
torture, since it expressly prohibits torture. A person in a position
of authority who ordered subordinates to commit torture would be giving
them a manifestly unlawful order, and under the regulations defining
their rights and duties, they would be bound not to obey it. Thus,
article 28 of the Act of 13 July 1983 on the rights and obligations
of civil servants states that all civil servants must comply with
the instructions of their superiors except where an order is manifestly
unlawful and would seriously jeopardize the public interest.
17 of the Decree of 18 March 1986 establishing the Code of Ethics
of the National Police Force contains an identical provision and adds
that "if the subordinate believes that he has been given an unlawful
order, it is his duty to make his objections known to the issuing
authority, indicating expressly why he believes the order to be illegal".
Article 10 goes on, "a civil servant who witnesses prohibited behaviour
shall be liable to disciplinary measures if he does nothing to stop
it or fails to inform the competent authority".
15 of Act No. 72-662 of 13 July 1972 establishing the general military
regulations states that:
must obey the orders of their superior officers and are responsible
for executing the missions entrusted to them.
However, they may
not be ordered to perform and may not perform acts that are contrary
to the law, the customs of war or international conventions or
that constitute crimes or offences, in particular against the
security and integrity of the State.
The personal responsibility
of subordinates does not relieve superiors of any of their responsibilities.
the Decree of 28 July 1975 establishing the general disciplinary regulations
for the armed forces, requires obedience only to "orders received
in conformity with the law" (article 7) and stipulates that a subordinate
shall not execute an order requiring him to perform a manifestly unlawful
act or one that is contrary to the rules of international law applicable
in armed conflict or to duly ratified or approved international conventions
law as it stands is consistent with this article as regards return
("refoulement") at the border, deportation from the territory (return
to the frontier and expulsion) and extradition.
constitutes refusal to allow entry into a State. The measure is provided
for in article 5 of the Ordinance No. 45-2658 of 2 November 1945,
as amended, relating to the conditions of entry and residence of aliens
in France. Article 2 of the Ordinance states that the rules it lays
down apply "subject to international conventions". Consequently, entry
to France cannot lawfully be refused if that would contravene the
principles set forth in article 3 of the Convention against Torture.
In practice, persons who do not meet the legal conditions for admission
to France and fear they will be tortured in the event of their refoulement
to another State apply for the right of asylum in France, invoking
the "fear of being persecuted" mentioned in article 1 of the Geneva
Convention relating to the Status of Refugees of 28 July 1951, an
instrument binding on the French authorities article 33 of which prohibits
the refoulement of refugees to countries where they fear for their
lives or freedom.
No. 82-442 of 27 May 1982, as amended, which was the enabling instrument
for article 5 of the Ordinance, stated in article 12 that: "when an
alien applies for the right of asylum on his arrival at the frontier,
the decision to refuse him entry into France may only be taken by
the Minister of the Interior after consultation with the Minister
for Foreign Affairs".
29. In a
decision dated 3 September 1986, the Constitutional Council determined
that article 5 of the Ordinance (as amended by Act No. 86-1025, promulgated
on 9 September 1986) implicitly but necessarily preserved the rights
of refugees. The Council of State had, moreover, previously decreed,
in a decision dated 27 September 1985, that article 12 of the Ordinance
merely defined the competent authority and the procedure for refusing
entry "insofar as the legally applicable provisions allow it, taking
into account inter alia the stipulations of the international
conventions relating to refugees". Hence a refugee cannot be returned
if the effect of doing so would be to send him to a country where
he was at risk.
30. Act No.
92-625 of 6 July 1992, which spells out the conditions under which
aliens can be kept in holding areas, refers expressly to the case
of persons who request asylum in France. Such persons may only be
kept in a holding zone "for so long as is strictly necessary [...]
for an enquiry to determine whether [their] request is not manifestly
unfounded" (Ordinance No. 45-2658 of 2 November 1945 relating to the
conditions of entry and residence of aliens in France, article 35
quater, as amended). Conversely, providing an alien's request
for asylum is not "manifestly unfounded", he can enter France.
if it was considered that the case of individuals under threat of
torture was different from that of refugees, and consequently was
not covered by the rules formulated for refugees, a similar line of
reasoning would have to be followed concerning the possibility of
returning a person at risk of being tortured. The Convention against
Torture would prevent the person's refoulement, since it takes precedence
over domestic law.
from the territory
French law, the removal of an alien from French territory may be a
consequence of a judicial decision banning the person from entering
the territory and entailing escort to the border, of an administrative
decision to escort him to the border because he had entered or was
in France illegally, or of an administrative decision to expel the
person because his/her presence represents a serious threat to public
33. Act No
93-1027 of 24 August 1993 added to the Ordinance of 2 November 1945
an article 27 bis reading:
An alien who is the
subject of an expulsion order or who must be escorted to the border
shall be sent:
1. Unless the French
Office for the Protection of Refugees and Stateless Persons or
the Refugees Appeal Board has recognized him as a refugee or a
decision is still pending on his request for asylum, to his country
of nationality; or
2. To the country
which issued him with a valid travel document; or
3. To a country to
which he may lawfully be admitted.
No alien may be sent
to a country if he proves that his life or freedom would be in
danger there or that he would be at risk there of treatment contrary
to article 3 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms of 4 November 1950.
34. The last
paragraph of the article therefore incorporates directly into the
Ordinance of 2 November 1945 the requirements of article 3 of the
European Convention on Human Rights, which provides that "No one shall
be subjected to torture or to inhuman or degrading treatment or punishment".
It thereby also fulfils the requirements of the United Nations Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. No administrative authority which has properly decided
that an alien shall be removed from French territory can lawfully
send the person to a country where he will be at risk of torture or
inhuman or degrading treatment.
27 ter of the Ordinance of 2 November 1945 as amended by the
Act of 24 August 1993 stipulates that the decision as to the country
to which an alien who is subject to removal from French territory
shall be returned is a separate matter from the decision on removal
and is appealable to an administrative court. If the appeal against
the decision fixing the country of return is lodged at the same time
as an appeal against the order for escort to the border on grounds
of unlawful entry to or residence in France, it stays execution in
the same way.
36. In any
event, it must be stressed that safeguards exist as regards both escort
to the border and expulsion. In each case, the very principle of the
measure is subject to judicial control.
to the border:
being notified of the order to escort him to the border, the alien
is immediately allowed to notify a counsel, his consulate or a person
of his own choosing;
to article 22 bis of the Ordinance of 2 November 1945, as amended
by Act No. 90-34 of 10 January 1990, an order for escort to the border
is not enforceable until 24 hours after the alien has been notified
of it. In the intervening period the alien may lodge with the president
of the administrative court an application for the annulment of the
order. The president or his representative must rule on the application
within 48 hours of its submission. The appeal stays execution, meaning
that the order for escort to the border cannot be enforced until the
24-hour time-limit has expired or, if annulment has been sought, until
the court has ruled on the application;
alien may, in connection with the proceedings before the president
of the administrative court or his representative, request the assistance
of an interpreter and the production of the file containing the documents
on the basis of which the decision complained of was taken. The hearing
is public and must take place in the presence of the alien and of
his counsel, if he has one. When an alien has no counsel, he may request
the president of the court or his representative to assign him one.
The ruling may be appealed to the Council of State.
alien must be notified in advance and given at least two weeks' notice
to appear before a commission of magistrates, whose proceedings are
No. 89-548 of 2 August 1989 states that while his situation is being
reviewed by the commission, the alien has the right to be assisted
by counsel or any person of his choice and to be heard with an interpreter.
Furthermore, since the adoption of Act No. 91-647 of 10 July 1991,
he may apply for legal aid in order to have the services of counsel
free of charge; this entitlement must be mentioned in the summons
to appear before the commission of magistrates;
alien may explain to the commission the reasons why he should not
be expelled. A record of his explanations must be sent, together with
the commission's substantiated opinion, to the Minister of the Interior,
the Minister of the Interior decides on expulsion, the decision may
be referred to the administrative court;
requirement to seek the opinion of the commission is waived in cases
of the utmost urgency. Even then, however, the expulsion order may
be appealed to the administrative court on grounds of illegality,
and the appeal may be accompanied by an application for stay of execution.
37. In France,
extradition is regulated by the Act of 10 March 1927, which makes
admissibility of requests for extradition subject to requirements
of validity and form. These safeguards are strengthened by rules of
procedure guaranteeing the exercise of the rights of defence. An individual
whose extradition is requested is heard by the Indictments Chamber.
Extradition may not be granted in the case of a negative opinion by
the Indictments Chamber. If extradition is granted following a favourable
opinion by the Indictments Chamber, the person extradited also enjoys
provisions are supplemented by France's international commitments,
with the aim of providing increased protection for persons subject
to extradition. When France ratified the European Convention on Extradition
(done at Paris on 13 December 1957), on 10 February 1986, it made
the following reservations:
Extradition will not
be granted when the person sought would be tried in the requesting
State by a court which does not offer the fundamental guarantees
in respect of procedure and the protection for the rights of the
defence or by a court established for his particular case, or
when extradition is requested for the purposes of executing a
sentence or a security measure imposed by such a court.
Extradition may be
refused if his surrender is likely to have exceptionally serious
consequences for the person sought.
also reserved the option of refusing extradition if "the penalties
or security measures are not provided for in the scale of penalties
applicable in France".
39. The legal
remedies available ensure that these principles are respected. If
the Indictments Chamber declares in favour of an application, an appeal
to vacate may be made, with suspensive effect (decision by the Court
of Cassation, 17 May 1984).
the administrative court has decided that decrees adopted pursuant
to the Act of 10 March 1927 on behalf of a foreign State can be treated
separately from France's international relations, and a person whose
extradition has been authorized may appeal on grounds of illegality
(Council of State, decision of 28 May 1937, Decerf). The Council of
State monitors the legal classification of the circumstances justifying
extradition (Council of State, 24 June 1977, Astudillo Caleja) and
verifies the conformity of the extradition orders with international
conventions. It takes French public policy into account. Consequently,
it has decided that the extradition of an individual who might well
incur the death penalty (which has been abolished in France) would
be contrary to French public policy (decision of 27 February 1987,
Fidan). It also takes into account the general principles of the law
on extradition. In particular, it examines the respect for the "fundamental
rights of the human person" especially by the judicial system of the
requesting country (Uriza Murquitio, 14 December 1987)
in a decision of 1 April 1988 (Bereciartua Echarri), the Council of
State quashed an order granting to the authorities of the country
of origin the extradition of a person who had been granted refugee
status. The Indictments Chamber of the Paris Court of Appeal recently
took a similar decision by refusing to approve the extradition of
a refugee to his country of origin (Arrospide-Sarasola, l June 1988).
even if France had not ratified the Convention, extradition that would
render a person liable to torture, either as part of or outside the
legal proceedings, might be considered to be unlawful by French courts.
The entry into force of the Convention confirmed this trend. It should
be emphasized that observance of the provisions of article 3 is ensured
not only by national legal remedies, but also by individual applications,
as mentioned in the introduction, to the United Nations Human Rights
Committee and the European Commission of Human Rights.
should be made in this respect of the ruling of the European Court
of Justice of 7 July 1989 to the effect that a decision by the United
Kingdom to surrender a German national to the United States authorities
would, if enforced, breach article 3 of the European Convention on
Human Rights. The Court reached this finding after noting that there
were serious grounds for thinking that if the German returned to the
state of Virginia, where he had been accused of a double murder, he
would be sentenced to death and therefore at risk from "death row
syndrome" (ECHR, 7 July 1989, Soering/United Kingdom).
44. As already
stated, acts of torture are classified as a distinct crime by article
222-1 of the new Criminal Code that came into force on 1 March 1994.
Under the previous Code, they merely constituted an aggravating circumstance
in connection with certain offences. The first paragraph of the new
article 222-1 provides:
The subjection of
persons to torture or to acts of barbarity shall be punishable
by 15 years' rigorous imprisonment.
45. The classification
of torture and acts of barbarity as a crime has eliminated shortcomings
in the punishment of torture. Before the new provisions came into
effect, how violations of the person were classified depended directly
on the degree of injury. Now what counts is that such violations are
inherently serious, irrespective of their outcome. In particular,
a person may now be prosecuted for attempted voluntary injury; that
was not the case before. The result is that nowadays attempted mutilation
may be classified as attempted torture.
article 222-3 of the new Criminal Code, which enumerates aggravating
circumstances relevant to torture and acts of barbarity, refers expressly
to the commission of such acts by public officials:
The offence defined
in article 222-1 shall be punishable by 20 years' rigorous imprisonment
7. In or in connection
with the performance of his functions or duties by a person vested
with public authority or a public servant.
public official commit acts of torture on instructions from representatives
of the "lawful authorities", article 122-4 of the new Criminal Code
precludes his exoneration if the acts are "manifestly unlawful" -
as would, clearly, be the case.
47. The new
provisions of the Criminal Code concerning torture are also applicable
to members of the armed forces, pursuant to article 27 of Act No.
72-662 of 13 July 1972, which states that "members of the armed forces
are subject to the provisions of ordinary criminal law and to those
of the Code of Military Justice". In addition, article 441 of the
Code of Military Justice punishes incitement to commit acts that are
contrary to duty or to discipline.
121-4 to 121-7 of the new Criminal Code make attempted torture and
complicity in torture punishable in the same way as torture itself:
Article 121-4: "Author
of the offence" shall mean the person who:
the acts constituting the offence;
to commit a serious or, in the cases provided for by law, an ordinary
Article 121-5: An
attempt occurs when action commences and is interrupted or fails
to achieve its aim only because of circumstances beyond the author's
Article 121-6: An
accomplice in an offence within the meaning of article 121-7 shall
be punishable as its author;
Article 121-7: "Accomplice"
in a serious or ordinary offence shall mean any person who wittingly
aids or abets its preparation or commission.
The term "accomplice"
shall also apply to any person who, by gift, promise, threat,
order or abuse of authority or power causes an offence or gives
instructions for it to be committed.
should be noted that "torture and inhuman acts" may also count as
constituent elements of a crime against humanity as defined in article
212-1 of the new Criminal Code.
49. The new
Criminal Code has an entire paragraph (articles 222-1 to 222-6) devoted
to punishment of torture and acts of barbarity. Article 222-1, which
establishes the offence of torture, provides for a penalty of 15 years'
rigorous imprisonment subject to an automatic minimum term, meaning
that the prisoner must serve half his sentence before becoming eligible
for abatement. Articles 222-44, 222-45, 222-47 and 222-48 provide
for numerous supplementary penalties, including deprivation of civic,
civil and family rights, prohibition of residence in France and banishment
from French territory.
50. The law
provides for three levels of aggravation of the offence:
penalty is increased to 20 years' rigorous imprisonment if the acts
are accompanied by sexual assault other than rape or if they are committed
in any of the 10 other aggravating circumstances provided for in article
222-3. As had already been said, those circumstances include the commission
of torture in or in connection with the performance of his functions
or duties by a person vested with public authority or a public servant;
penalty is increased to 30 years' rigorous imprisonment in any of
the following three cases: if the offence is committed against a child
under 15 by an older relative or a person in authority over the minor;
if the offence is repeatedly committed against a child under 15 or
a vulnerable person; if the offence occasions mutilation or permanent
penalty of rigorous imprisonment for life is applicable if the torture
or acts of barbarity unintentionally cause the victim's death or are
practised in conjunction with another crime.
51. It should
be noted that the commission of acts of torture always constitutes
an aggravating circumstance in relation to certain other offences:
for example, rape (article 222-6); procuring (article 225-9); kidnapping
(article 224-2, paragraph 2); theft (article 311-10) and extortion
I, Title One, chapter III of the new Criminal Code, concerning the
territorial scope of criminal law, largely reproduces the provisions
of the old Code of Criminal Procedure, Book IV, Title X, i.e. the
former articles 689 to 689-2 and 693 which were quoted in the initial
report of France in 1988. The requirements of article 5 of the Convention
are, therefore, satisfied by the following provisions:
1 (a), (b) and (c)
113-2 to 113-7 of the new Criminal Code respectively provide as follows:
Article 113-2: French
criminal law shall be applicable to offences committed within
the territory of the Republic;
An offence shall be
deemed to have been committed within the territory of the Republic
if the acts constituting it took place within that territory;
Article 113-3: French
criminal law shall be applicable to offences committed on board
or against vessels flying the French flag, wherever they may be.
It alone shall be applicable to offences committed on board or
against vessels of the French Navy, wherever they may be;
Article 113-4: French
criminal law shall be applicable to offences committed on board
or against aircraft registered in France, wherever they may be.
It alone shall be applicable to offences committed on board or
against French military aircraft, wherever they may be;
Article 113-5: French
criminal law shall be applicable to any person who renders himself
guilty within the territory of the Republic, as an accomplice,
of a serious or ordinary offence committed abroad if that offence
is punishable by both French and foreign law and is confirmed
by a final decision of a foreign court;
Article 113-6, paragraph
1: French criminal law shall be applicable to any serious offence
that is committed by a French national outside the territory of
Article 113-7: French
criminal law shall be applicable to any serious or ordinary offence
punishable by imprisonment that is committed outside the territory
of the Republic by a French national or an alien if the victim
was of French nationality at the time of its commission.
689 of the Code of Criminal Procedure as amended by the Act of 16
December 1992 states that:
The authors of and
accomplices in offences committed outside the territory of the
Republic may be prosecuted and tried by French courts when, pursuant
to the provisions of the Criminal Code, Book 1, or of another
legislative instrument, French law is applicable or when an international
convention gives French courts jurisdiction to deal with the matter.
55. It follows
that French courts have jurisdiction over torture and acts of barbarity
in the cases referred to in article 5, paragraph 1, of the Convention.
689-1 and 689-2 of the Code of Criminal Procedure as amended by the
Act of 16 December 1992 came into force on 1 March 1994 and concern
just the situation referred to in article 5, paragraph 2, of the Convention:
Article 689-1: Pursuant
to the international conventions referred to below, any person
who renders himself guilty outside the territory of the Republic
of any of the offences enumerated in those articles may, if in
France, be prosecuted and tried by French courts. This article
shall apply to attempts to commit any of those offences whenever
such attempts are punishable;
Article 689-2: For
the purposes of the application of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment
adopted at New York on 10 December 1984, any person guilty of
torture within the meaning of article 1 of the Convention may
be prosecuted and tried under the conditions stated in article
provisions are very similar to those of article 689-2 of the old Code
of Criminal Procedure as amended by Act No. 85-1047 of 30 December
1 and 2
57. To explain
how this article may apply, it is necessary to specify the circumstances
in which it may apply, assuming the suspect to be on French territory.
58. In the
first category of situation, i.e. when the offence has been committed
by a French national on French territory against another French national,
France alone has jurisdiction. In a second category of situation,
i.e. when the offence has been committed by a national of a foreign
State on the territory of that State against another national of the
same State, in accordance with the usual principle of international
criminal law, that State alone has jurisdiction and is entitled to
demand extradition of the offender or suspect. France would generally
agree to such extradition, particularly in view of article 8 of the
Convention. If however France does not grant extradition in such a
case, it has the necessary jurisdiction to try the individual in question,
as was shown with reference to article 5.
59. The question
of competing jurisdiction may arise between France and another State,
in particular when an offence has been committed by a French national
or against a French national on the territory of that State, or when
it has been committed by a national of that State on French soil.
on the circumstances and the stance adopted by the French Government,
the following may be applied:
system of ordinary law as defined in the Code of Criminal Procedure:
a preliminary investigation by the judicial police on instructions
from the public prosecutor or automatically under the supervision
of the public prosecutor; 24-hour custody which may be renewed once
pending the institution of proceedings by an initiating order issued
by an examining magistrate on the instructions of the public prosecutor;
possibly preventive detention if charges are preferred (mise en
law on extradition (Act of 10 March 1927, under article 696 of
the Code of Criminal Procedure): interim arrest warrant issued by
the public prosecutor (Act of 10 March 1927, article 19), examination
as to personal particulars by the prosecutor or a member of his department
within 24 hours of the arrest (article 11), earliest possible transfer
and remand in custody in the public jail of the seat of the Court
of Appeal within whose territorial jurisdiction the person concerned
was arrested (article 12), notification abroad within 24 hours of
receipt of the documents supporting the extradition request and the
evidence on which the arrest was made, interrogation within the same
period, immediate referral to the Indictments Chamber and appearance
of the alien before the Chamber within a period not exceeding one
week (article 13).
in all cases, French legislation enables the responsible authorities
to ensure the presence or detention of the suspect and it prescribes
an immediate investigation.
point is covered by article 36 (Communication and contact with nationals
of the sending State), paragraphs 1 (b) and (c) and 2, of the Vienna
Convention on Consular Relations of 24 April 1963, which provides
1. With a view to
facilitating the exercise of consular functions relating to nationals
of the sending State:
(b) If he so requests,
the competent authorities of the receiving State shall, without
delay, inform the consular post of the sending State if, within
its consular district, a national of that State is arrested or
committed to prison or to custody pending trial or is detained
in any other manner. Any communication addressed to the consular
post by the person arrested, in prison, custody or detention shall
also be forwarded by the said authorities without delay. The said
authorities shall inform the person concerned without delay of
his rights under this subparagraph;
(c) Consular officers
shall have the right to visit a national of the sending State
who is in prison, custody or detention, to converse and correspond
with him and to arrange for his legal representation. They shall
also have the right to visit any national of the sending State
who is in prison, custody or detention in their district in pursuance
of a judgement. Nevertheless, consular officers shall refrain
from taking action on behalf of a national who is in prison, custody
or detention if he expressly opposes such action.
2. The rights referred
to in paragraph 1 of this article shall be exercised in conformity
with the laws and regulations of the receiving State, subject
to the proviso, however, that the said laws and regulations must
enable full effect to be given to the purposes for which the rights
accorded under this article are intended.
a view to simplifying the application of these provisions, on 17 May
1982, the Minister of Justice sent a circular to judges, prosecutors
and prison administrators (Circular No. 82-14). It will be noted that
this article must be applied even to nationals of States which have
not ratified the Vienna Convention on Consular Relations. That instrument
did not specifically regulate the case of stateless persons. The Convention
against Torture equates them with the nationals of the State where
they usually reside.
paragraph informs States Parties of the conduct to be followed in
the instances contemplated in paragraph 1. There is no current provision
in French law to impede its implementation, if necessary.
paragraph follows directly from article 5, paragraph 2, and applies
the principle of aut dedere aut judicare to the specific case
of offences referred to by the Convention. No particular comments
are therefore required.
French law, acts of torture constitute serious offences, as was stated
under article 4 above. Accordingly, they may be treated only as such
by the competent prosecuting authorities. In addition the standards
of evidence are independent of the grounds on which the State exercises
67. All persons
facing charges are entitled to fair treatment regardless of the nature
of the offence with which they are charged, in accordance with French
law and the international instruments to which France is a party,
foremost among them the International Covenant on Civil and Political
Rights (article 14) and the European Convention on Human Rights (article
is a directly enforceable provision which complements existing extradition
treaties. It is binding, even if an extradition treaty concluded in
the future between States Parties to the Convention does not include
torture as grounds for extradition.
2 and 3
two paragraphs deal with two mutually exclusive cases. Paragraph 2
does not apply to France as France does not make extradition conditional
on the existence of a treaty. Indeed, the Act of 10 March 1927 defines
conditions, procedure and effects in respect of extradition in the
absence of a treaty. Hence, France is among the States referred to
in paragraph 3 and recognizes acts of torture as cases for extradition
under the conditions laid down in the Act of 10 March 1927. Furthermore,
political considerations which, under French law, may constitute an
objection to extradition may not be taken into account when an act
of torture has been committed.
article 5 of the Act of 10 March 1927 states that extradition will
not be granted "when the crime or offence is political in character
or the product of circumstances such that extradition is requested
for a political purpose". However, it does make extradition possible
if "acts of abhorrent barbarity and vandalism prohibited by the laws
of war" have been committed during a civil war. Furthermore, and above
all, the Council of State considers that the fact that some crimes
of a non-political nature may have been committed for a political
purpose does not warrant, in view of their seriousness, their being
regarded as political in character (cf. judgements Croissant, 7 July
1978, Rec., p.292, Gador Winter and Piperno, 13 October 1982).
provision is directly enforceable. It should be noted that, between
States Parties to the Convention applying it in good faith, there
can be no contradiction between article 8 and article 3. Nonetheless,
there are some grounds on which France may impede the extradition
of a torturer. This would be the case, for example, if he faced the
death penalty in the requesting country, either for the crime of torture
or on some other count. In such an instance, article 5, paragraph
2, would naturally be invoked.
traditional provision is similar to that appearing in several international
conventions on criminal matters such as the Convention for the Suppression
of Unlawful Seizure of Aircraft, done at The Hague on 16 December
1970 (article 10) and the Convention for the Suppression of Unlawful
Acts Against the Safety of Civil Aviation, done at Montreal on 23
September 1971 (article 11). In French internal law the rules applicable
to the satisfaction of demands for judicial assistance are those set
forth in articles 30 et seq. of the above-mentioned Act of 10 March
73. The rules
prohibiting and punishing the use of torture appear in the basic provisions
regulating each of the professions concerned. A working knowledge
of these articles is therefore included in the training courses organized
for their members. Obviously, study of the Criminal Code and Code
of Criminal Procedure forms the basis for the training of magistrates
and lawyers. As regards military personnel, the general disciplinary
regulations for the armed forces (Decree No. 75-675 of 28 July 1975,
amended) are part of the programme for all training courses, including
those for national service personnel. The principle of the prohibition
of torture, established by international law and by the Convention
in particular, is therefore widely publicized among the general public.
74. The other
relevant texts (the general military regulations, the Code of Military
Justice) form part of the programmes intended for future non-commissioned
and commissioned officers. The courses organized by the national advanced
training centre for judicial police and courses for non-commissioned
and senior officers of the national gendarmerie emphasize Circular
No. 9600 DN/GEND EMP/SERV of 4 March 1971, which concerns the measures
to be taken to ensure respect in the activities of the judicial police
for the fundamental rights of the individual. Attention was further
drawn to the contents of that circular in Note No. 10990 DEF/GEND/OE/PI/DR
of 22 April 1994.
the police, the Code of Ethics (Decree No. 86-592 of 18 March 1986)
is widely circulated and commented upon and is taught in police training
colleges. In addition, the training of members of the police and police
officers comes under the authority of the National Police General
Inspectorate which, inter alia, supervises educational establishments.
Members of this body themselves participate in the teaching, particularly
with regard to police ethics. Decree No. 93-1081 of 9 September 1993
established a National Police Ethics Board. The Board, which is chaired
by a member of the Council of State, comprises two senior judges,
an academic, a lawyer, a journalist, a member of the civil service
inspectorate, two serving officers of the national police and one
retired officer of that force. It has been invited by the Minister
of the Interior to submit to him proposals concerning, in particular,
the ethical training of police officers.
in the prison regulations, the guiding principle of which is respect
for the inherent dignity of the individual, is provided for all categories
of prison staff by the National School of Prison Administration. Instruction
on penal law and procedure and national institutions is also provided.
Criminal lawyers and representatives of humanitarian and human rights
organizations assist in this instruction. In 1996, the prison service
issued a publication entitled "Prison et droits de l'homme" (Prison
and Human Rights) on the jurisprudence of the European Commission
and Court of Human Rights applicable to prisoners. This document,
which has been widely distributed among prison staff, draws attention
in particular to the inadmissibility of subjecting prisoners to torture.
regard to the medical profession, the Code of Medical Ethics as amended
by a decree of the Council of State dated 6 September 1995 sets out
doctors' general obligations and the duties they have to their patients.
Article 2 of the Code makes it incumbent on every doctor to exercise
his calling "in a spirit of respect for human life and for the individual
and his dignity". Article 10 specifies how to behave towards persons
No doctor who has
to examine or provide care to a person deprived of liberty shall
directly or indirectly promote or sanction, even if only by his
presence, infringement of that person's physical or mental integrity
rules appear in the codes of ethics of the other two medical professions,
viz. dental surgeons and midwives, and in the professional rules for
nurses. The curricula for medical and nursing studies provide for
training in the legislation, ethics, deontology and responsibilities
specific to these professions.
79. The concepts
of "custody" and "treatment of persons subjected to any form of arrest,
detention or imprisonment" relate to a number of distinct juridical
situations that are described below.
80. A person
may initially be deprived of freedom of movement by being committed
to custody. The decision to commit may be taken only by an officer
of the judicial police in the circumstances laid down in articles
63, 77 or 154 of the Code of Criminal Procedure, i.e. in the event
of a crime or of capture in flagrante delicto, of a preliminary
investigation, or in execution of a rogatory commission. In the case
of a preliminary investigation, people may be committed to custody
only if there is "reason to believe that they have committed or attempted
to commit an offence" (article 77).
Nos. 93-2 of 4 January 1993 and 93-1013 of 24 August 1993 were passed
to clarify the conditions applicable to detention in custody, and
gave people thus deprived of their liberty improved rights. As regards
supervision of custody by the judicial authorities, it should be stressed
that judicial police officers are now required to notify the public
prosecutor or investigating magistrate concerned without delay of
any committal to custody (arts. 63 and 154 of the Code of Criminal
Procedure). The law also expressly states that the public prosecutor
must supervise custody in order to ensure that all goes smoothly and
that the formalities laid down in the new Act (article 41) are observed.
For people held in custody, the legislature has created new rights
to end their isolation without compromising the investigation in progress.
These are described below.
right of a person in custody to be informed, in a language he understands,
of the safeguards legally available to him and the law governing the
duration of custody (Code of Criminal Procedure, arts. 63 and
63-1). The maximum duration of custody is 24 hours, which may however
be extended by not more than 24 hours with the written authorization
of the public prosecutor. Pursuant to the new provisions of article
63-1 of the Code of Criminal Procedure, notes detailing the rights
of people in custody were sent in 1993 to all departmental gendarmeries
and police services. The notes were produced in a variety of languages.
If a foreigner held in custody cannot read any version of the note,
an interpreter may be called in. If a French national held in custody
cannot read, the judicial police officer will inform him orally of
his rights and safeguards.
64 of the Code requires the judicial police officer to indicate on
the transcript of the statement taken from a person held in custody
the lengths of the periods of questioning undergone and the periods
of rest in between, and the dates and times at which the person was
taken into custody and subsequently liberated or brought before a
competent court. This information must be initialled separately by
the individual concerned; a note to that effect must be added if he
refuses. The annotation must specify the reason for custody.
right to warn a family member of the action taken against him.
This right, preventing people in custody from being kept isolated,
guards against the ill-treatment that may occur if the individual
concerned is cut off from the outside world. If, however, the judicial
police officer believes that giving the family notice would hamper
the progress of the investigation, he must refer immediately to the
public prosecutor, who will then decide whether or not to accede to
the request or defer notice (article 63-2).
right to a medical examination. People held in custody are informed
of this right as soon as they are taken into custody, and can ask
to be examined by a doctor designated by the public prosecutor or
by the judicial police officer. They may request another examination
if custody is extended. A medical examination is also required, even
if the individual concerned does not ask for one, if a member of his
family does. Lastly, the public prosecutor or judicial police officer
may at any time officially designate a doctor to examine a person
held in custody. Such an examination must take place without delay,
and the certificate, which must include an indication of the doctor's
opinion as to whether the detainee is fit to be kept in custody, is
put on the file (article 63-3).
right to see a lawyer confidentially after the first 20 hours
of custody (article 64-4). If the person in custody is not in
a position to designate a lawyer or the lawyer chosen cannot be reached,
the person in custody can ask for a lawyer to be officially assigned
to him. To improve the organization and quality of criminal defence,
a decree dated 4 February 1994 establishes arrangements for recompensing
lawyers so assigned.
87. Any information
obtained in breach of these provisions of articles 63, 63-1, 63-2,
63-3 and 63-4 will be deemed null and void (art. 171 of the Code of
Criminal Procedure). It should also be mentioned that a circular dated
1 March 1996 on the conditions governing committal to custody was
sent to every public prosecutor's office in France, asking what difficulties
had been encountered in enforcing the new legislation and how the
situation might be improved. The initial findings from this inquiry
indicate that articles 63 et ff. of the Code of Criminal Procedure
are being respected and that the judiciary is keeping a constant watch
over committals to custody.
88. As stated
in the 1988 initial report, the judicial police operates under the
supervision of the government procurators at the courts of major jurisdiction
(art. 12 of the Code of Criminal Procedure) and, within the territorial
jurisdiction of each Court of Appeal, is overseen by the public prosecutor
of the appeal court and the Indictment Division. If judicial police
officers fail to respect any of the above provisions, the Indictment
Division can admonish them or suspend them, temporarily or permanently,
without prejudice to any purely disciplinary measures that may be
imposed by their superiors. If, moreover, the Indictment Division
considers them to have committed a criminal offence, it will have
the file forwarded to the public prosecutor (arts. 224 to 230 of the
Code of Criminal Procedure).
police officers are not immune from criminal liability as they go
about their duties, and can be prosecuted in the criminal courts.
If unlawful conduct on the part of a judicial police officer amounts
to a criminal offence, as would be the case with torture, the victim
can obtain redress by bringing a civil action before the civil courts.
90. Act No.
93-2 dated 4 January 1993 on criminal procedure reform has applied
since 1 March 1996 to proceedings falling within the jurisdiction
of army tribunals, naval, military and air force courts and provosts'
courts. As of that date, therefore, the new provisions described above
have also applied to custody in military matters.
91. The Hardouin
decision, handed down by the Council of State on 17 February 1995,
introduced real judicial checks on disciplinary measures in the armed
forces. The Council ruled that a complaint could be lodged before
the courts, on grounds of illegality, against arrest as a punishment
as provided for in articles 30 and 31 of Decree No. 75-675 (the Armed
Forces (general disciplinary regulations)) dated 28 July 1975.
92. A person
may be imprisoned either because, in the circumstances provided for
by law, he has been placed in pre-trial detention by order
of an examining magistrate as provided for in articles 144 to 148-5
of the Code of Criminal Procedure, or because he is serving a term
of imprisonment. In either case, the prison regime is governed
by Book V (execution arrangements), Title II (detention), of the Code
of Criminal Procedure.
D.189, paragraph 2, of the Code sets forth the general principle of
respect for the individual:
The prison administration
shall ensure respect for the dignity inherent in the human person
in regard to all the detainees for which it is responsible in
any capacity, and shall do its utmost to facilitate their reintegration
94. In particular,
article D.174 states:
Prison staff must
not use force against detainees except in the event of self-defence,
attempted escape, or violent or passive resistance to orders.
When they do use force, they must do so only to the strict extent
D.172 states that "no coercive measure may be used as a punishment
for indiscipline". As regards disciplinary punishment for detainees,
a new system has been instituted by the decree dated 4 April 1996
and the implementing circular dated 12 April 1996. The new system
clearly defines what constitutes a disciplinary offence and spells
out the punishments applicable.
96. The implementing
circular explicitly refers to the European Prison Rules and the European
Convention for the Protection of Human Rights and Fundamental Freedoms.
It stipulates that disciplinary action "must satisfy the principles
[...] laid down in Council of Europe recommendation (R.87) 3 on the
European Prison Rules", which prohibit, in particular, "any cruel,
inhuman or degrading punishment" as a disciplinary measure. Prison
staff would of course be liable to criminal and civil proceedings
if detainees were tortured.
97. In any
event, there are a number of provisions guaranteeing that conditions
in detention are supervised and monitored, and guarding against torture,
as detailed below:
and reports by judicial authorities
727 and D.176 to D.179 of the Code of Criminal Procedure require visiting
magistrates, the presidents of Indictment Divisions, investigating
magistrates, children's magistrates, government procurators and public
prosecutors to pay regular visits to prison establishments to check
on the conditions in which the detainees under their jurisdiction
are held. If they have any comments, they may make them known to the
authorities concerned for action to be taken. Additionally, visiting
magistrates are required to report annually to the Minister of Justice,
through the heads of the various courts, on the execution of sentences.
The first President and the public prosecutor report annually to the
Minister of Justice on the operation of the prison establishments
under their jurisdiction and the performance of their staff. They
may meet detainees with no member of the prison staff present (art.
D.232 of the Code of Criminal Procedure).
by the supervisory committee
of local administrative and judicial authorities, the supervisory
committee is responsible for "internal inspection of the prison as
regards cleanliness, safety, feeding arrangements, health services,
work, discipline, observance of the regulations, education and the
social reintegration of detainees" (article D.184). It meets at least
once a year, visits the establishment, conducts any interviews it
considers necessary, and receives applications from detainees concerning
any matter within its jurisdiction. It may communicate any comments,
criticisms or suggestions it feels it necessary to make to the Minister
article D.229 of the Code of Criminal Procedure, prison establishments
are inspected regularly by the Prisons Administration inspection service,
the prefect, and any other administrative authorities with supervisory
responsibilities for the various prison administration services.
No. 94-43 of 18 January 1994 made the public hospital service responsible
for providing detainees with diagnostic and health care. Since that
time, therefore, doctors from outside the prison administration have
systematically given the medical check-ups to all new detainees and
made the mandatory visits to detainees held in isolation and punishment
blocks. When a doctor finds that a detainee's state of health is incompatible
with his continued detention in a punishment block, the punishment
is suspended. The doctor may proffer an opinion whenever he sees fit
as to the desirability of continuing or ceasing to hold a detainee
in an isolation block. He may at any time advise the head of the establishment
that he believes a detainee's state of health is incompatible with
his maintenance in detention.
102. It should
be made plain at the outset that no detainee may be deprived in any
circumstances of the opportunity to communicate with counsel. Every
detainee can also take advantage of the possibilities available under
articles 259 and 260, first paragraph, of the Code of Criminal Procedure:
Article 259: Detainees
may submit requests or complaints to the head of the establishment,
who shall grant an interview if sufficient grounds are advanced.
Detainees may request an interview with the magistrates and officials
responsible for inspecting or visiting the establishment with
no member of the prison staff present.
Article 260, first
paragraph: Detainees and parties to whom an administrative decision
gives grounds for a complaint shall be entitled to request referral
of the decision to the regional director, if the decision emanates
from the head of an establishment, or to the Minister of Justice
if the decision emanates from a regional director.
effect of these provisions is to enable any detainee to enter an administrative
appeal before seeking a judicial remedy before the administrative
courts. The administrative courts have been given greater supervisory
authority over conditions in detention since the decision (Marie)
handed down by the Council of State on 17 February 1995. The Council
ruled admissible an appeal on grounds of illegality against a head
of establishment's decisions to place a detainee in a punishment block.
Such measures had previously been held to be internal sanctions that
afforded no grounds for a complaint. Moreover, article D.262 allows
detainees to write confidentially to a number of administrative and
judicial authorities: "Detainees may at any time write letters to
the French administrative and judicial authorities appearing on a
list drawn up by the Minister of Justice. Such letters may be submitted
sealed, and shall then not be subject to any form of scrutiny; their
dispatch must not be delayed."
104. By note
dated 20 June 1994, the Prisons Administration included among the
aforesaid authorities all members of the European Commission and Court
of Human Rights, and the chairman of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
and naval detainees may write without restriction to the French military
or naval authorities, and be visited by representatives of the military
or naval authorities designated in the committal proceedings (article
D.263). Foreign detainees may, subject to reciprocal arrangements,
contact the diplomatic or consular representatives of their home States
of foreigners in holding areas, in administrative detention or in
awaiting permission to enter France or unable to complete their onward
journeys used to be kept in the "international" areas of ports and
airports for as long as was necessary to consider their applications
or arrange their return home. There were no specific regulations to
govern this situation, and the safeguards available to them were announced
by circular only (circular dated 26 June 1990).
voting on Act No. 92-190 of 26 February 1992, which amended various
provisions of the amended order No. 54-2658 of 2 November 1945 governing
entry into and residence in France by aliens, the Constitutional Council,
taking up the matter at the Prime Minister's suggestion, affirmed
by decision dated 25 February 1992 that keeping foreigners in holding
areas was constitutional provided that they were not kept there for
an unreasonable period and that the courts handed down a decision
as soon as possible (Journal officiel, 27 February 1992).
No. 92-625 of 6 July 1992, on holding areas at ports and airports,
was passed after that decision (Journal officiel, 9 July 1992).
The new language appears in article 35 quater of the order
of 2 November 1945, subsequently amended by Act No. 94-1136 of 27
December 1994 to cover railway stations open to international traffic.
The latter Act clarified and tightened the rules applicable to transfer
from one holding area, where foreigners are held, to another from
which they will actually depart.
an eye to the right of asylum and individual freedom, therefore, France
has developed rules that offer numerous safeguards to those concerned.
The latter include two distinct categories of foreigners: first, foreigners
without permission to enter France or unable to complete their onward
journeys, who will be held only so long as is strictly necessary for
them to depart; and then, foreigners applying for admission as asylum
seekers, who can be held only for the purpose of conducting proceedings
to determine whether their application for asylum is manifestly unjustified
and, if so, for enforcing the decision to refuse them entry.
it should be pointed out that, to protect the right of asylum, an
asylum seeker can be refused entry into France only by decision of
the Minister of the Interior, not the border police, after consultation
with the Minister for Foreign Affairs (art. 12 of decree No. 82-442
dated 27 May 1982, amended).
procedure for holding foreigners and the related safeguards are the
same for both categories: at any point in the proceedings, foreigners
may leave the holding area for the foreign destination of their choice;
and they are held in hotel-type premises where they are fed and lodged.
They may at any time request the assistance of an interpreter or a
doctor, and may communicate with anyone they please.
in holding areas is subject to strict deadlines. The procedure comprises
a number of phases, each of which comes with its own safeguards:
decision to detain an individual for a maximum period of 48 hours,
renewable once, is taken by the chief of the border control service.
The decision must be in writing and state how it was arrived at; it
must be registered and brought without delay to the attention of the
government procurator for scrutiny. The foreigner is immediately informed
of his rights and obligations, through an interpreter if necessary.
four days, detention may be extended only with the authorization and
under the supervision of a judge - the president of the court
of major jurisdiction for the geographical area concerned. The administrative
authorities must explain to the court why it has not been possible
to send the foreigner home or, if he has applied for asylum, to grant
him entry, and state how long it will take to arrange for his departure
from the holding area. The court will issue its finding in the form
of an order after interviewing the individual concerned in the presence
of his counsel, who can challenge the detention.
extension may not be for more than eight days. The order authorizing
or denying extension of detention may be appealed to the first President
of the Court of Appeal, who has 48 hours to issue a decision.
exceptionally may the extension be renewed for a further eight days,
following the same procedure.
113. In no
case may the total time an individual is detained in a holding area
exceed 20 days. In practice, the average duration is 1.8 days for
foreigners refused entry or unable to complete their onward journeys.
It is 4.5 days on average for asylum seekers, owing to the need to
consider their applications. A foreigner may contest the legality
of a decision to refuse him entry before the administrative courts,
and append to his request for the decision to be set aside an application
for stay of execution.
No. 95-507 of 2 May 1995, issued pursuant to the Act of 27 December
1994, grants access to the holding area to representatives of the
Office of the United Nations High Commissioner for Refugees and humanitarian
organizations. Under this decree, authorized representatives of UNHCR
have access to the holding area and may meet the chief of the border
control service and representatives of the Ministry of Foreign Affairs.
They may also meet the asylum seekers privately. As the decree states,
this access is intended to "permit the Office of the United Nations
High Commissioner for Refugees to accomplish its mission". Similar
provisions apply to humanitarian associations.
the International Organization for Migration (IOM) also operates in
holding areas, providing humanitarian support.
facing an expulsion order or due to be escorted to the border who
cannot immediately leave French territory may be detained in premises
not under the control of the Prisons Administration for as long as
is strictly necessary to effect their departure. Whether to do so
is decided by the representative of the State in the département
concerned. The decision must be in writing and state how it was arrived
at, and is subject to scrutiny by the courts. Article 35 bis
of the order dated 2 November 1945, as amended by Act No. 93-1027
of 24 August 1993, establishes the safeguards indicated below.
government procurator must be immediately informed of the decision
to detain an individual, and may throughout the period of detention
visit the premises and verify the conditions of detention.
foreigner must himself be immediately informed of his rights, if need
be through an interpreter if he does not speak French. Throughout
his detention he may request the assistance of an interpreter, a doctor
or counsel and may, if he so desires, communicate with his consulate
and a person of his choice.
hours after the decision to detain the foreigner is taken, the president
of the court of major jurisdiction or a magistrate designated by him
must decide whether to extend the period of detention, having interviewed
the individual concerned in the presence of his counsel, if any. If
the foreigner can offer effective recognizances, the court may, exceptionally,
order him confined to his residence.
will end at the latest six days after the court issues the detention
order. This deadline may be extended by a maximum of 72 hours, by
order of the president of the court or a magistrate he designates,
in an absolute emergency where public order is under especially grave
threat, or where the foreigner has not provided the competent administrative
authority with a travel document permitting his removal from French
territory to take place, if the indications are that the extra time
will enable the document to be procured.
may be lodged against the orders by the president of the court or
the magistrate he designates; the president of the court of appeal
or his designated representative must issue a ruling within 48 hours
of submission of the appeal.
provisions relating to the order dated 2 November 1945 on entry into
and residence within France by foreigners and later amendments (Acts
dated 6 July 1992 and 24 August 1993) do not apply to the French overseas
territories or the community of Mayotte owing to the special geographical,
historical and social circumstances of those territories. On the other
hand, Act No. 96-609 of 5 July 1996, containing a number of provisions
relating to the overseas possessions, extended the ordinary law provisions
on administrative detention of foreigners to them.
reference should be made to a special form of detention, since the
initial decision emanates from a judicial authority. This is the procedure
set up under Act No. 93-1417 of 30 December 1993 and inserted into
article 132-70-1 of the new Penal Code.
article states that if a court finds a foreigner guilty of a crime
covered by article 27 of the order dated 2 November 1945, it may stay
the pronouncement of sentence and require the defendant to submit
to the competent administrative authority travel documents permitting
his expulsion, or furnish the elements needed for such expulsion.
In such a case the decision to stay sentence is accompanied by an
order to commit the defendant to judicial confinement for a maximum
of three months. Commitment is to premises not under the authority
of the Prisons Administration. The usual safeguards apply, i.e. the
individual concerned is informed that he may while in confinement
request the assistance of an interpreter, a doctor or counsel. He
may also communicate with anyone he pleases and receive visits authorized
by the judicial authorities.
public prosecutor and the president of the court with jurisdiction
over the place of confinement can visit the premises and check on
the conditions of detention at any time.
the stay of sentence the defendant may call for the confinement order
to be lifted, and the court which ordered the confinement can lift
the order of its own motion. If application for the order to be lifted
is refused by a court of first instance, the decision can be appealed.
to a psychiatric service, without their consent, of mentally disturbed
No. 90-527 of 27 June 1990, on the rights and protection of persons
committed with psychiatric problems and the conditions of commitment,
gave people committed without their consent to psychiatric services
two forms of committal without consent
distinct forms of committal come under this heading: committal at
the request of a third party (Public Health Code, arts. L.333 to L.341),
and committal proprio motu (ibid., arts. L.342 to L.351).
at the request of a third party can take place only if the psychiatric
problems from which an individual is suffering prevent him from giving
consent and his condition warrants immediate attention combined with
full-time surveillance in a hospital environment. The request must
come either from a member of the patient's family or from a person
likely to be acting in his interests, and must be accompanied by two
medical certificates indicating that the conditions the law lays down
Act of 27 June 1990 provides for a number of monitoring mechanisms,
from admission to discharge:
check upon admission must be performed by the director of
the establishment before the individual concerned is admitted. The
director must ensure that the request has been formulated in accordance
with the regulations (articles L.333 and L.333-1);
24 hours of admission, the patient must be examined by the
psychiatrist at the establishment, who must issue a medical certificate
justifying committal without consent;
medical checks are performed during commitment; a second check
is scheduled to take place during the three days preceding completion
of the first fortnight in care; on expiry of the maximum one-month
period indicated by the doctor in the certificate, a further check
must be performed and another certificate issued. Commitment may be
prolonged for maximum (renewable) periods of one month (article L.337);
administrative and judicial authorities must by law be notified
of the procedure: the medical certificates authorizing committal at
the request of a third party are forwarded to the departmental committee
on psychiatric committals and to the prefect, who must in turn notify
the government procurators at the courts with jurisdiction over the
patient's home and hospital establishment.
establishment maintains a register in which is recorded, within 24
hours of admission, all relevant information concerning the committal
of the individual concerned (personal details, identity of the person
requesting committal, medical certificates). The register must be
shown to persons visiting the establishment (article L.341).
proprio motu applies to people whose disorders threaten "public
order or the public safety" (article 342). In Paris it is ordered
by the prefect of police, and in the départements by the prefects,
who do so on the strength of a detailed medical certificate from a
psychiatrist not employed at the receiving establishment. The order
takes the form of an administrative decision (arrêté), which
must be submitted in writing and explain how it was arrived at. Committal
proprio motu is subject to the same regular checks as committal
at the request of a third party: a medical certificate within 24 hours
of admission, then after a fortnight of care and thereafter every
month at least. The departmental committee on psychiatric committals
and the public prosecutor must be informed of all such cases.
article L.345 the prefect, acting on the detailed opinion of a psychiatrist,
may during the three days preceding completion of the first month
in care order commitment to be extended for three months. At the end
of that time, commitment may be extended for maximum (renewable) periods
of six months by following the same procedure.
on committals without consent
committed without their consent can contest their treatment. The Act
of 27 June 1990 establishes departmental committees on psychiatric
committals which are responsible for monitoring committals on psychiatric
grounds, committals without consent in particular (articles L.332-3
and L.332-4). They visit establishments to which patients can be committed
without consent and receive complaints from inmates. Individuals committed
proprio motu can challenge the relevant administrative decisions
on grounds of a breach of the regulations or the rules governing jurisdiction
and procedure. If they do so, their appeals are heard in the administrative
on the other hand, appeal is lodged on grounds of unwarranted detention,
jurisdiction rests with the judicial courts. Under article L.351 of
the Public Health Code, any person committed without his consent,
whether at the request of a third party or proprio motu, may
seek to be discharged by applying to the president of the court of
major jurisdiction responsible for the area where the establishment
is situated. The president can then issue an interim relief order
authorizing immediate release of the individual concerned. The third
paragraph of article L.351 states: "The president of the court of
major jurisdiction may also, at any time and on his own authority,
take up the matter and order the commitment without consent to be
discontinued. To this end, any interested individual may bring to
the president's attention any information about the situation of a
committed person that he may deem useful."
rights of individuals committed without their consent
Act of 27 June 1990 carefully spells out the rights and liberties
of patients committed without their consent, in article L.326-3 of
the Public Health Code. The first paragraph of the article sets forth
the principle that restrictions on the exercise of personal freedoms
by an individual committed without his consent shall be limited to
those required by the individual's state of health and the progress
of his treatment, stipulating that: "in all circumstances, the dignity
of the committed individual must be respected and his return to society
the list of rights in the following paragraphs of the article should
not be considered exhaustive:
[The individual committed
without his consent] must be informed upon admission, and thereafter
on request, of his legal standing and rights.
He shall at all events
1. To communicate
with the authorities mentioned in article L.332-2;
2. To apply to the
committee to be established pursuant to article L.332-3;
3. To seek the advice
of a doctor or lawyer of his choice;
4. To send and receive
5. To consult the
rules and regulations of the establishment as defined in article
L.332-1 and to be given any appropriate explanations;
6. To exercise
his right to vote;
7. To engage in religious
or philosophical activities as he chooses.
With the exception
of those mentioned in 4, 6 and 7 above, these rights may be exercised
at their request by the patient's relatives or persons likely
to act in his interests.
authorities mentioned in article L.332-2 are the prefect, the competent
judicial authorities and the mayor of the commune. The committee mentioned
in article L.332-3 is the departmental committee on psychiatric committals,
which is responsible for receiving complaints from committed individuals.
Act of 27 June 1990 extended the liability to criminal proceedings
of directors of establishments that do not observe the provisions
governing committal without consent, and introduced a new offence
covering doctors at establishments that take in patients committed
without their consent (articles L.352 to L.354 of the Public Health
there are reasonable grounds to believe that an act of torture has
taken place, not merely an investigation but a judicial inquiry is
called for if the victim brings an action as described under article
13 below. It should be recalled that under article 40, second paragraph,
of the Code of Criminal Procedure, "any constituted authority, public
official or civil servant who in the performance of his or its duties
learns of a crime or offence shall be required to advise the public
prosecutor without delay and to transmit to the public prosecutor
all related information, reports and documents".
State authorities may take the initiative of assigning senior officials
or the inspecting body of the entity concerned, such as the general
inspectorates of the national police or gendarmerie, to conduct an
administrative or formal investigation. They may then institute judicial
proceedings under article 36 of the Code of Criminal Procedure, which
states: "The Minister of Justice may report to the procurator general
breaches of the criminal law of which he has knowledge, enjoining
him, by written instruction placed on the file of the proceedings,
to institute or cause to be instituted, legal action, or to submit
to the competent court such warrants as the Minister may deem appropriate."
articles 40, first paragraph, and 41 of the Code, the procurator general
receives complaints and reports and determines what action should
be taken on them. He then takes or causes to be taken such action
as is required to identify and prosecute offences. As regards detainees
in particular, articles D.280 to D.282 of the Code of Criminal Procedure
require the chief of a prison establishment to notify his superiors
and the prefect and government procurator without delay of "any serious
incident affecting order, discipline or security in the prison" or
the death of any inmate.
who believes he has been subjected to torture is entitled under the
ordinary law to lodge a complaint.
article 85 of the Code of Criminal Procedure, "any person who claims
to have suffered injury as a result of a crime may, by lodging a complaint,
institute civil proceedings before the competent examining magistrate".
Proceedings may be brought against named individuals or persons unknown.
In case law, for civil proceedings to be so brought it is sufficient
that the circumstances described enable the judge to admit the possibility
of the injury alleged and a direct link between it and a breach of
the criminal law. Thus the victim can himself trigger criminal proceedings,
causing an information to be laid and, where appropriate, a prosecution
to be brought against the culprit.
any free person, detainees may apply to the criminal courts under
ordinary law. It should be recalled that they may communicate privately
with their lawyers (arts. 727, D.67 to D.69 and D.419 of the Code
of Criminal Procedure) and request an interview with the magistrates
and officials responsible for inspecting or visiting the establishment
with no member of the prison staff present.
of the complainant and witnesses against any ill-treatment or intimidation
in connection with the complaint lodged or evidence given is organized
in accordance with the Penal Code, in particular articles 222-17,
222-18, 322-12, 322-13, 222-1 and 222-3, 222-11 to 222-13, 322-1 and
322-3 and 434-15 of the new Penal Code.
Article 222-17: Threatening
to commit a criminal act against individuals where the attempted
act is punishable shall, if repeated or expressed in writing,
in an image or in other material form, be punishable by six months'
imprisonment and a fine of 50,000 francs.
The penalty shall
be increased to three years' imprisonment and a fine of 300,000
francs in the event of a death threat.
Article 222-18: Threatening
by any means whatsoever to commit a criminal act against individuals
shall, if accompanied by the order to fulfil a condition, be punishable
by three years' imprisonment and a fine of 300,000 francs.
The penalty shall
be increased to five years' imprisonment and a fine of 500,000
francs in the event of a death threat.
Article 322-12: Threatening
to cause destruction, damage or deterioration hazardous to individuals
shall, if repeated or expressed in writing, in an image or in
other material form, be punishable by six months' imprisonment
and a fine of 50,000 francs.
Article 322-13: Threatening
by any means whatsoever to cause destruction, damage or deterioration
shall, if accompanied by the order to fulfil a condition, be punishable
by one year's imprisonment and a fine of 100,000 francs.
The penalty shall
be increased to three years' imprisonment and a fine of 300,000
francs in the event of a threat to cause destruction, damage or
deterioration hazardous to individuals.
against acts of torture or violence
- For torture,
article 222-3 includes among the aggravating circumstances of the
offence defined in article 222-1, which makes torture a crime, the
fact of committing acts of torture "against a witness, victim or claimant
for criminal indemnification either to prevent him from reporting
an incident, lodging a complaint or seeking justice or because he
has done so".
- Acts of
violence are punishable pursuant to articles 222-11 to 222-13:
Article 222-11: Violence
resulting in complete incapacity for work for more than eight
days is punishable by three years' imprisonment and a fine of
Article 222-12: The
offence defined in article 222-11 shall be punishable by five
years' imprisonment and a fine of 500,000 francs if committed:
4. Against a magistrate,
juror, lawyer, public or ministerial officer or any other person
vested with public authority or employed in the public service
in or in connection with the performance of his mission or duties
if the victim's position was apparent or known to the perpetrator;
5. Against a witness,
juror or claimant for criminal indemnification either to prevent
him from reporting an incident, lodging a complaint or seeking
justice or because he has done so.
stipulates a penalty of three [years'] imprisonment and a fine of
300,000 francs for violence that does not result in complete incapacity
to work for more than eight days if committed against the same persons
as in the preceding article.
against destruction of physical property
Article 322-1: The
destruction, damage or deterioration of property belonging to
another shall be punishable by two years' imprisonment and a fine
of 200,000 francs unless only minor damage results.
Article 322-3: The
offence defined in article 322-1, first paragraph, shall be punishable
by five years' imprisonment and a fine of 500,000 francs [...]:
3. If committed to
the detriment of a magistrate, juror, lawyer, public or ministerial
officer or any other person vested with public authority or employed
in the public service with a view to influencing his behaviour
in the performance of his mission or duties;
4. Against a witness,
juror or claimant for criminal indemnification either to prevent
him from reporting an incident, lodging a complaint or seeking
justice or because he has done so.
destruction, damage or deterioration attracts the same penalties.
Article 434-15: The
use of promises, offers, gifts, pressure, threats, bodily violence,
wiles or artifice during the course of proceedings or with an
eye to a judicial claim or defence for the purpose of inducing
another either to make or issue a false deposition, statement
or attestation or to refrain from making or issuing a deposition,
statement or attestation shall be punishable by three years' imprisonment
and a fine of 300,000 francs even if the subornation has no effect.
147. If an
act of torture were to be committed in the circumstances specified
in article 1, paragraph 1, i.e. "by or at the instigation of or with
the consent or acquiescence of a public official or other person acting
in an official capacity", the first question that would arise in French
law in respect of redress would be to determine the competent court.
The answer is straightforward. Since an act of torture unquestionably
constitutes a serious infringement of individual liberty, the ordinary
courts, as the guardians of fundamental freedoms, would have jurisdiction
pursuant inter alia to article 136 of the Code of Criminal
Procedure, the third paragraph of which states: "... in cases of infringement
of personal liberty the dispute may never be taken up by the administrative
authority, the courts of law always having exclusive jurisdiction".
the standpoint of administrative case law, an act of torture ought
to be categorized as an act of violence since it clearly cannot be
linked to the application of a legislative or administrative text
or to the exercise of a power belonging to the administration. Consequently,
the judiciary would have full jurisdiction over the matter and would
be competent inter alia to provide redress by awarding damages
for any injury resulting from the act in question. Both civil and
criminal law should apply.
basis of civil responsibility is laid down in articles 1382 and 1383
of the Civil Code:
Article 1382: Any
act by a person which causes injury to another obliges the person
by whose fault the injury occurred to make redress.
Article 1383: Every
individual is responsible for the injury he causes not only by
his acts but also by negligence or imprudence.
party has the option of bringing a civil action, which it may do before
a civil court.
150. In this
case, however, inasmuch as the injury for which redress is sought
is not originally civil but stems from a criminal offence or fault,
an action may also be brought before the criminal courts under article
3 of the Code of Criminal Procedure: "a civil action may be brought
at the same time and before the same court as the prosecution".
proceedings are more expeditious and less costly than civil action.
The authority of the court's decision in criminal proceedings cannot
be challenged in civil proceedings until the victim has been heard
in the criminal proceedings. This appears to be best for the administration
of justice itself since, by having the civil action judged by the
criminal court, it avoids conflicting judgements. Choosing this option
may nevertheless have its drawbacks for the victim who, as a party
to the proceedings, cannot testify as a witness either during the
preliminary investigation or during the hearings: if the victim is
the principal witness for the prosecution, his failure to appear as
such may weaken the case. He must therefore decide in the light of
the circumstances how best to pursue his complaint. That this option
is available to him does, in any event, serve to preserve his interests.
152. If the
victim opts for criminal prosecution, the Court of Assises, which
has jurisdiction over criminal matters, will rule on the civil action
after handing down its judgement on the criminal charges, as prescribed
in article 371 of the Code of Criminal Procedure:
Once the Court of
Assises has announced its decision on the prosecution it shall,
without the jury present, rule on the applications for damages
filed either by the applicant for criminal indemnification against
the defendant or by the acquitted defendant against the applicant
for criminal indemnification, after the parties and the public
prosecutor have been heard.
article 372, "in the event of an acquittal or of waiver of punishment,
the applicant for criminal indemnification may seek redress for injury
caused through the defendant's fault as established by the facts on
which the prosecution was based".
the civil action is brought before a civil court, the civil proceedings
are distinct from the criminal trial and subject to the procedural
rules applicable in civil law. But because they are still concerned
with the procurement of redress for criminal injuries resulting from
a criminal act, the civil court must defer its decision until the
criminal court, sitting before or during the civil hearings, has itself
delivered a judgement on the criminal charges; it is also required
to respect the decision handed down by the criminal court.
155. As regards
the fairness and adequacy of the compensation, it must be borne in
mind that under the case law on the subject (cf. Cass. Crim., 8 February
1983), reparation for the injury suffered by the victim must be made
"in full, not just to some extent".
article 375 of the Code of Criminal Procedure as amended by the Act
of 4 January 1993, "the court shall sentence the perpetrator of the
offence to pay to the applicant for criminal indemnification a sum
that it shall determine to cover expenses incurred by the applicant
and not paid by the State. The court shall have due regard for fairness
or the economic circumstances of the guilty party. It may of its own
motion declare on grounds deriving from the same considerations that
such a sentence is uncalled-for".
157. In the
event, lastly, that the victim is unable to obtain full and fair compensation
through the usual channels for the injuries he has suffered, article
706-3 of the Code of Criminal Procedure as established by the Act
of 6 July 1990 and amended by the Act of 16 December 1992 offers a
subsidiary line of recourse:
Any person who has
suffered injury as a result of actions, voluntary or otherwise,
that in substance resemble a criminal act may obtain full compensation
for the injuries resulting from infringements of personal rights
under the following conditions:
1. The infringements
do not fall within the scope of article L.126 of the Insurance
Code or chapter I of the Traffic Accident Victims (Improvement
of Situation and Expedition of Compensation Procedures) Act No.
85-677 of 5 July 1985, nor result from a hunting accident or the
destruction of vermin;
- either have brought
about a person's death, permanent disability or total incapacity
to work for a month or more;
- or are covered by
and punishable under articles 222-22 to 222-30 and 227-25 to 227-27
of the Penal Code;
3. The injured person
is of French nationality. If not, the actions were committed on
French territory and the injured person:
is a national of a State member of the European Economic Community;
- or, subject
to the provisions of international treaties and agreements, was legally
resident on the date of the actions or the application.
Compensation may be
refused or reduced on the grounds of fault on the part of the
article thus establishes the principle of full compensation for injuries
resulting from serious infringements of personal rights provided that
the actions behind the injuries in substance resemble a criminal act;
the judicial authorities do not even need to establish that a criminal
act has been committed.
159. If the
victim of an act of torture dies, his successors and assigns are entitled
to compensation and may for that purpose apply in their own right
for criminal indemnification. The condition for entering an application
for criminal indemnification is that one has suffered personal injury
as a result of the criminal act in question.
to the case law on the subject, anyone to whom a criminal act has
caused physical or moral injury, even if not directly the victim of
the act, is regarded as having suffered personal injury, whether this
be an heir of the deceased, his ascendants or descendants, brothers
or sisters, or anyone else with stable bonds of affection and interest
to the victim. The personal injury invoked by the successors and assigns
must nevertheless be direct, i.e. associated by a cause-and-effect
relationship with the criminal act. Moral injury through infringement
of emotional ties is in certain cases regarded as direct, and the
successors and assigns can then receive a pretium doloris.
French law the question of how evidence is established arises, from
the viewpoint of this article, only in criminal proceedings. In civil
law, the law itself governs how evidence is established, its admissibility
and its probative value; in criminal law, evidence established by
any means is accepted provided that it has been sought and obtained
in accordance with certain procedures and rules and that it has been
produced and discussed adversarially at the hearings.
are, naturally, limits to the freedom of evidence. Although the objective
is to lay bare the truth, the truth cannot be sought by any means
whatsoever. Torture is forbidden under the Convention and under other
international instruments binding on France, as cited at the beginning
of this report.
163. It was
stated, in reference to article 11, that the conditions under which
individuals can be questioned, inter alia while in custody,
are strictly regulated, and that infringements of the bodily integrity
of accused persons are severely punished under the Penal Code. Case
law has also rejected all unfair procedures as provocative. French
doctrine prohibits interrogation combined with the use of narcotics
(injections of pentothal or "truth serum").
164. An additional
safeguard is provided by the fact that the judges in criminal matters
have sovereign authority to evaluate the value and probative force
of evidence and must for that purpose take into consideration the
circumstances in which it was obtained. Reference should be made here
to articles 427 and 428 of the Code of Criminal Procedure, which state:
Article 427, second
paragraph: The court may base its decision only on the evidence
produced and discussed adversarially before it during the hearings.
Article 428: The courts
may form their own opinion of confessions, as of any item of evidence.
a statement that could be shown to have been obtained under torture
must have been obtained against the law, and the court could not hold
it against the defendant. The defendant, on the other hand, would
be able to avail himself of the means described under article 13 to
bring proceedings against the perpetrators of the act of torture.
acts of cruel, inhuman or degrading treatment or punishment are covered
in France by the charges applicable to torture. The information given
above relating to torture generally thus also applies to them. The
obligations set forth in connection with articles 10, 11, 12 and 13,
in particular, are valid under the same conditions.
fact that the Convention is without prejudice to any other international
instrument or national law prohibiting cruel, inhuman or degrading
treatment or punishment poses no problem either of interpretation
or of application. It is also normal that the Convention should not
affect the application of other provisions in agreements or national
laws on extradition and expulsion.