FECL 35 (June 1995):

JUDGES CHALLENGE POLICE ON PASQUA LAW

In a number of recent decisions, judges have ordered the release of foreigners detained by the police pending their deportation. In May, an examining judge released three "irregular" aliens, on the grounds that the police had arrested them illegally. In an earlier case, the judge brought about the release of 18 scheduled deportees, when the police refused to grant him and an accompanying lawyer access to an infamous detention centre for deportees.

 

The "foreigners' warehouse"

The judge argued that the police's refusal to permit access to the centre to lawyers of detainees "allowed the presumption that occurrences contrary to the European Convention on Human Rights are taking place" at the centre. The local is under the purview of the Police Prefecture. It lies in the basement of the Palais de Justice, the Paris Law Courts, and is very officially - and quite accurately - called Dépôt des Etrangers (the "foreigners' warehouse").

 

"Indescribable dirtiness and lack of privacy"

In recent years, the "warehouse" has regularly drawn massive criticism from human rights organisations and immigration lawyers. Complaints about the intolerable situation in the detention centre were so serious and frequent that delegations of the European Committee for the Prevention of Torture (ECPT: a body set up by the Council of Europe) visited it on two occasions, in 1991 and in 1994. Both times, the ECPT established breaches of the rights of the detainees, and unacceptable hygienic conditions. In an unusually harsh report in September 1994 the ECPT denounced the "vile smell" and the "indescribable dirtiness and lack of privacy" to which detainees at the Dépôt were subjected. This amounted to a "breach of all their rights".

The "warehouse" comprises six collective cells measuring 35 sq. metres and designed for 13 persons each, six cells for three persons, and individual cells destined to "unruly, homosexual and transvestite" detainees. Neither toilets or washing rooms are equipped with doors. "You have to do everything in front of everybody", a former detainee says. According to a medical doctor working at the detention centre, detainees are often constipated or suffer from urine retention - a psychosomatic reaction against the incredible uncleanliness and total lack of privacy.

Formerly, the Dépôt housed fewer than 100 deportees, but as a direct result of the entry into force of the Pasqua laws the number soon rose to up to 150.

 

Police abuse

In November 1993, members of GISTI succeeded in taking pictures documenting the inhumane conditions in the establishment. The photographs were published in the Paris press and drew public outrage. An administrative inquiry was ordered. It concluded in January 1994 that the Dépôt should be closed. Yet, except for some painting of the walls, nothing happened, and the Police prefecture continued to place deportees at the Dépôt, in spite of ever more serious indications of human rights violations there. In November 1994 a police officer went on trial for having raped a male Algerian inmate. Shortly afterwards, a young Moroccan committed suicide, and in February, one police officer was imprisoned on remand and five others suspended from service after they brutally beat up an Algerian.

 

A judge challenges the police

In April, when a young Moroccan detainee, Minou Rahma, appeared in front of "delegate judge" François Sottet with his face swollen, bruises all over his body and an arm in plaster, the judge decided to inspect the "warehouse" together with Rahma's lawyer, before agreeing to any further detention. When this was denied by the Police Prefecture, Judge Sottet refused to sign detention requests by the police for Rahma and 25 other deportees and set them free immediately.

The decision triggered a furious controversy between the judiciary and the Police administration. According to the Police, under the Pasqua provisions, the "delegate judges" are not magistrates with full powers, but merely "assistants of a procedure pertaining to administrative law". Thus, the police argue, their only task is to formally authorise detention measures and they have no right to order releases.

The ordinance on the entry and stay of foreigners amended in 1993 provides for the detention for up to 10 days of deportees awaiting deportation. Detention is first ordered by the Police Prefecture, but must be confirmed by a judge delegated by the Tribunal de grande instance (County court) within 24 hours. Under the law, this prolongation of detention is to be ordered as a rule and the delegate judge may decide otherwise only if given guarantees that the person awaiting deportation will comply with the deportation order. Release on other grounds is not expressly provided for in the ordinance.

However, following a complaint of the Police Prefecture against judge Sottet, the Paris Court of Appeals found that the release was lawful, as detainees may not be subjected to assault and abusive infringement on their individual liberty.

At the end of April, the Police Prefecture finally announced the closure of the Dépôt, nick-named "the dungeon of the Republic", pending a thorough renovation of the premises.

 

Unlawful arrest

The battle between the judiciary and the police is far from over, however. In May, an examining judge released 10 "irregular" foreigners on the grounds that their arrest was too vaguely documented in the police records.

The ten were stopped in a vast ID-check operation carried out under a 1993 law on the "prevention of threats to public security". The French Constitutional Council has stated that such checks are lawful only if there are particular circumstances establishing the risk of a breach of public order. In the case of the ten foreigners the police justified the arrests on grounds such as the following: "When he saw us, X. turned and went in the opposite direction, while repeatedly looking back at us with a worried expression . . .. Incidentally, all persons stopped for such "suspicious behaviour" were non-white foreigners.

Judges and lawyers have long claimed that the 1993 law on identity checks wide has opened the door for discriminatory controls on the mere basis of a person's appearance. The Secretary General of the Syndicat de la magistrature (Union of Magistrates of the Judiciary), Jean-claude Bouvier welcomes the release of the ten. "It is indeed incumbent on the judge to assess the lawfulness of the check that led to the arrest", he said.

The Police Prefecture has appealed against the decision.

 

Sources: Libération, 27.4.95, 14.5.95; Le Monde, 15.4.95, 25.4.95, 28.4.95, 5.5.95; GISTI: Guide de l'entrée et du séjour des étrangers, Editions La Découverte, Paris 1995).