FECL 57 (March 1999):
The spectacular mass trial of 138 persons suspected of supporting the Algerian "Islamic Armed Group", GIA, ended in an embarrassing flop for French police and judicial authorities responsible of the fight against terrorism. On 22 January, a special "anti-terrorist" Court in Paris found 51 of the defendants not guilty of any involvement in terrorism. All defendants in the so-called "Chalabi trial" had been accused of participation in a terrorist organisation but nobody was even charged with any concrete act of terrorism.
The haphazard arrests, detention and incrimination of alleged members of the "terrorist network" have drawn harsh criticism in France. In a recent report, the International Federation of Human Rights (FIDH) calls for the abolition of the catch-all offence of "participation in a terrorist organisation or conspiracy". The controversy in France is particularly topical in view of a Joint Action, adopted by the EU JHA Ministers in December, aimed at making "participation in a criminal organisation" an offence in all EU Member States.
Ever since the Algerian government, pressed by the Armed Forces and with tacit French support, annulled the 1991 parliamentary elections won by the Islamic Salvation Front, FIS, French authorities have been faced with a rise of "Islamic" extremism in the country's large North African community. In 1995, 13 people were killed in bomb attacks attributed to the Algerian Armed Islamic Group, GIA (see FECL No.39: "Hunting a spectre: the French fight against terrorism", "Operation Vigipirate: a country under siege", "Rivalries and blunders hamper terrorist hunt", "Government plans new anti-terrorist legislation").
Since 1994, French police have time and again carried out highly publicised raids among the North African community, regularly resulting in mass arrests of alleged "Islamic" extremists.
In one of these raids, in late 1994, the French police arrested 91 persons, including Mohamed Chalabi. Chalabi, a notorious gang leader from the southern suburbs of Paris, was said to have turned to Islamic fundamentalism in 1991 and was regarded by French security as the leader of a French-based network providing "logistical support" (everything from medicine to money and arms) to the GIA in Algeria. A criminal investigation into the presumed network was opened. Other alleged members of the "Chalabi network" were arrested in police raids in 1995 and 1996. According to French and Algerian intelligence sources, Chalabi was due to take part in the 1995 bomb attacks in France, but was arrested first. In 1996, another presumed leader, Mohamed Kerrouache (alias "Salim") was arrested in Britain. Kerrouache was extradited to France in December 1997.
When the Chalabi mass trial opened on 31 August last year, 138 persons were accused of participation in a terrorist organisation (association de malfaiteurs en relation avec une entreprise terroriste: "criminal association (or conspiracy) relating to a terrorist undertaking").
Due to the large number of defendants and extraordinary security requirements the trial was held in a heavily guarded gym of the Fleury-Mérogis prison administration, temporarily converted in to a Court hall for 10 million French francs. In protest against these settings reminiscent of "a mass trial in a country under dictatorship" most defendants and their lawyers announced they would boycott the trial and actually refrained from attending any further hearing, including the pronouncement of judgement. Thus, the trial took place in an almost empty hall.
At its opening, the mass trial was already widely considered an embarrassing flop for the judiciary and, in particular, for the person with responsibility for the investigation into the so-called Chalabi network, examining judge (juge d'instruction) Jean-Louis Bruguière. Bruguière was strongly criticised for his habit of ordering mass-arrests on weak grounds, leading to long detention of innocent people. "We rake up broadly first, we sift later", the publicity loving and buoyant "anti-terrorist" magistrate is quoted as saying to justify his heavy-handedness.
Indeed, in the Chalabi investigation, Bruguière did rake up broadly. 173 persons were subjected to a preliminary examination (mise en examen) and detained on remand. When the trial opened, preliminary charges against no fewer than 34 persons (who had been detained for an average of 2 months) had been dropped, and all but 27 of 138 defendants had been released from prison. Moreover, the charges against many of the accused appeared to be based on vague speculations rather than evidence, as the stories of some of the accused suggest:
Commenting on Samy's case, the French satirical weekly, Le Canard Enchaîné, noted: "Considering the number of ID documents lost or stolen every year, the anti-terrorist judges are not at risk of running out of suspects".
Defence lawyers loudly denounced the lack of individualisation of the charge and demanded that the mass trial be split up into several independent procedures, on the grounds that many of the accused obviously had no connection whatsoever with each other. According to the lawyers, the real objective of "artificially" establishing a connection between 138 defendants by trying them in a single procedure was to mount a "show" trial fuelling public fears of "Islamic" terrorism. Although the prosecution gradually also began referring to three distinct networks, thereby cautiously moving away from Judge Bruguière's more media-adapted threat scenario of one large, structured terrorist organisation under the leadership of Mohamed Chalabi, the Court dismissed the demand of the defence for a disjunction of the trial into several separate procedures.
Lawyers also complained about serious breaches of the principle of "equality of arms". For example, the complete records of the prosecution amounted to 50,000 pages. Disclosure of specific records was repeatedly denied on the grounds that the requested documents had no connection with the charges against the defendant concerned (which was actually often the very fact that had triggered a request). Lawyers who persisted were eventually offered a full copy of the records for the price of 150,000 francs, a sum far beyond their and their often destitute clients' means.
The defence also accused the examining judges of "biased" interrogations, based on lengthy and entangled statements by the interrogators hinting at a connection between a multitude of elements of suspicion, mostly unknown to the suspect, only to end up with one question. Defendants who answered what they thought was the one specific question risked tacitly admitting all the other allegations made in the magistrate's statement. The FIDH report labels this interrogation method "inquisition in the narrow and medieval sense of the term".
In the French legal system, the role of the examining judge is to act as an "impartial investigator of truth", i.e. he is supposed to gather both incriminating and exonerating evidence ("inquisitorial" system). In "anti-terrorist" procedures, however, according to FIDH, the examining judge tends to act rather like a prosecutor as defined by the Anglo-Saxon (adversarial) system. As a consequence, the task of gathering exonerating evidence is de facto assigned to the defence lawyers. Yet, under the French so-called "inquisitorial" system, the lawyers lack both the means and the powers to run their own investigation. FIDH sums it up as follows: "While we are aware that the French penal system is inquisitorial, in practice, anti-terrorist procedures have become adversarial, with the result, however, that one of the parties fights bound hand and foot".
Finally, FIDH points to the inclination of the judiciary to attach too much importance to unverified information supplied by French and Algerian intelligence services.
On 22 January, the special "anti-terrorist" Court pronounced its judgement.
While the Court found that a "conspiracy" had taken place, it disavowed the examining judges by dismissing the existence of any structured, hierarchical terrorist organisation, based on a "pyramidal construction". "The judges understood that the alleged 'Chalabi network' was actually the opposite of a network", says Dominique Tricaud, one of the defence lawyers.
What is more, the Court found no less than 51 defendants not guilty of any participation in a terrorist organisation or conspiracy. And finally, the relative leniency of the sentences given to the 87 defendants found guilty strongly suggests that the judges could not make out many dangerous terrorists even among those convicted. Indeed, while the law provides for a maximum sentence of 10 years imprisonment for "participation", the four prime defendants were given sentences ranging from 6 to 8 years. Of a total of 87 convicts, 39 were given sentences of less than 2 years. Commenting on this outcome, Defence lawyer Tricaud rejoiced: "Such a rate of acquittal has never before been seen in French judicial history". As for the sentences given, Tricaud is sarcastic: "The presiding judge went as far as he could to save a rotten trial".
In a quick reaction to the judgement, defence lawyers have announced their intention of calling to account examining judge Bruguière for "the months of groundless detention undergone by our clients".
According to lawyer Tricaud, the outcome of the trial mirrors an inherent defect in the entire investigation. One category of suspects could be clearly linked to an "organisation" but there was little proof of their being involved in any concrete criminal act. The other category could be directly linked to concrete criminal acts (mainly arms caches and document forgery) but there was little proof of their being part of some "organisation". Among others, this resulted in 19 defendants being acquitted of the main charge of participation in a terrorist organisation while at the same time being convicted of other (minor) offences such as document forgery, unlawful possession of arms and unlawful entry and stay.
Responding to domestic, politically motivated violence, a number of Western European countries, including Germany, Italy and the UK, introduced anti-terrorist laws already in the seventies. At that time, France was to a great extent spared from terrorist attacks. Consecutive French governments therefore found no need to introduce "anti-terrorist" legislation, a fact which drew on them charges of being "soft on terrorism" from friendly governments. Terrorism became an issue in France only in the eighties, against a background of both increasing militancy of Basque and Corsican nationalists and a US inspired world-wide crusade against "international terrorism". Consequently, the first "anti-terrorist" law package was introduced in 1986 by the then Interior Minister, Charles Pasqua, a notorious right-wing Gaullist hardliner (see FECL No. 39: "Government plans new anti-terrorist legislation", FECL No. 46: "Constitutional Council censures parts of anti-terrorism law"). Besides providing for a massive increase in sentences for offences carried out in connection with "terrorist undertakings", the package provided for a centralisation of the judicial organs responsible for the fight against terrorism. All terrorism related cases were to be dealt with by a special "anti-terrorist" section, the 14th section of the Office of the Paris Public Prosecutor. Four examining judges were tasked with investigating terrorist crimes in close coordination with the special section of the Public Prosecutor's Office and cases of terrorism were to be tried by a special Paris Court made of magistrates only (and not by a jury as in ordinary French criminal proceedings). Seven amendments of the 1986 Pasqua "anti-terrorist" law package included changes to the penal procedure code providing for, inter alia, massively extended powers of search and surveillance for the examining judges, and the prolongation of preliminary police custody (garde-à-vue) pending the start of a formal investigation (mise en examen).
The most recent amendment to "anti-terrorist" legislation was made in 1996. A new article in the French criminal code defines as an "act of terrorism" the "participation in a structured group or in a conspiracy with a view to the preparation, characterised by one or several material facts" of a number of specific terrorist crimes enumerated in the criminal code. The Criminal Procedure Code provides for a maximum sentence of 30 years for terrorist crimes. Participation in a "criminal association related to terrorism" is punishable with up to 10 years imprisonment.
Ever since the introduction of the Pasqua law package in 1986, critics have expressed concern about what they see as a trend towards introducing emergency law for daily use.
According to a source well acquainted with the investigation, most of the defendants belong to one of three categories:
All this highlights the serious problem of the assessment of evidence, a problem inherent in the very criminalization of "participation in a terrorist organisation". According to a leading French criminal law expert, professor Yves Mayaud, the offence is directed at "preparatory participation". Thus, "the [terrorist] association remains independent of the actual commission of the offences it is aiming at(...)". Consequently, "mere preparation, as long as it takes sufficient concrete form, is enough to establish punishable participation".
To quote the FIDH report, "[the] purpose of this provision is clear: the investigating and prosecuting authorities - the judicial police, the examining judge and the public prosecutor - are under no obligation whatsoever to link the alleged participation to any execution of a terrorist act or even a verifiable plan of such an execution". This, according to FIDH, explains why so little effort is being made in French pretrial investigations into alleged terrorist conspiracies to establish precisely which specific act of terrorism - not to mention which category of offence - a particular suspect has been contributing to. "Since they lack concrete substantiation as regards the exact objective of the criminal organisation or conspiracy, a degree of importance is being attached to any type of 'proof', however insignificant", the report notes. It goes on to refute much of the incriminating "evidence" presented in the Chalabi trial as mere "speculations" and "insinuations" by the examining magistrates. FIDH deplores that, in anti-terrorist proceedings, little attention is given to the question of criminal intent although "the proof of criminal intent is an indispensable element in establishing guilt".
As a matter of fact, the problem of proof is inherent in the objective of the criminalization of "participation" in a terrorist or criminal organisation. Its very purpose is to provide law enforcement and judicial authorities with an instrument allowing them to strike not only at the perpetrators of specific criminal or terrorist acts, but, above all, at an indistinct "milieu" of possible supporters and sympathisers, whose common feature precisely consists in their not having committed any serious offence.
Just as in other European countries which have introduced similar offences, the wording of the French provision on "participation" is such that it allows severe prosecution of persons for behaviours and acts that, if punishable at all, would ordinarily be considered as petty offences. Theoretically, a person can be punished for "participation" only if it is established that he or she knowingly contributed to the "activities" of a criminal or terrorist organisation/conspiracy. Yet, it is a difficult task to prove this criminal intent, when the punishable behaviour, as is the case with criminalized "participation" does not refer to a specific, concrete criminal act, but to general terrorism- or crime-related activities instead. Nor is it easy to establish whether somebody is knowingly participating in an "organisation", when, because of the clandestine character of the targeted "organisations", there are no objective criteria to distinguish members from non-members. In practice, this dilemma tends to entail the use, by law enforcement and judicial authorities, of very questionable methods of gathering and assessing evidence:
In the Chalabi case, wide use was made of all of these practices - at the expense of the rights and liberties of the accused.
Sources: FIDH Report 'Mission Internationale d'Enquête - France: La porte ouverte à l'arbitraire', Report on the application of anti-terrorist legislation in France, Paris, January 1999, in French (quotations from the report are our translations) - the report is available at FIDH, 17, passage de la main d'Or, F-75011 Paris, Tel: +33/1 43552518, Fax: +33/1 43551880; also available on the FIDH web page: www.fidh.imaginet.fr); Neue Zürcher Zeitung, 22.5.98; 2.1.98, 9.1.98; Dernières Nouvelles d'Alsace, 1.9.98; Canard Enchaîné, 9.9.98; Le Monde, 15.9.98; Berliner Zeitung, 23.1.98; Reuters, 19.2.96; Libération, 24.1.98; Le Figaro, 23.1.98; our interviews with Dominique Tricaud, lawyer, Paris.
Advocates of the catch-all offence of "participation in a terrorist organisation" have emphasised that the goal of effectively combatting and preventing major threats to public security, justifies stringent and at times liberty-restrictive means. Moreover, it could be argued that the outcome of the Chalabi trial proves the effectiveness of the law. After all, those sentenced were anything but law abiding citizens . The trial ended in the conviction of 87 out of a total of 173 people initially under preliminary investigation. This would suggest two things: that a vast terrorist conspiracy actually was uncovered and that, at the same time, the judiciary proved itself capable of making a responsible and restrictive use of the law.
Such reasoning, however, disregards some crucial aspects of the case:
Firstly, in contrast to strong hints from the investigating authorities and the mass media at a connection between the defendants in the Chalabi trial and a series of bloody terrorist attacks in France in 1995, none of the accused was convicted or even formally charged for any involvement in attacks on French or European territory. Instead, they were tried for having contributed to the preparation of unspecified violent attacks in Algeria, officially attributed to armed Islamic groups. "The term ‘terrorism’ should only be used when dealing with illegal activities against a legitimate State, but the Algerian regime has nothing to do with a legitimate State", defence lawyer Tricaud emphasises. Tricaud regrets that public criticism of the Chalabi trial addressed this essential question only incidentally.
Secondly, French anti-terrorist operations, based on the criminalization of "participation", have failed miserably as regards their declared prime objective, that is to track and punish the perpetrators of terrorist attacks in France. Instead, they have fuelled anti-North African racism and contributed to increased ghettoisation and criminalization of young North Africans, thereby pushing them into the arms of extremist groups. A collective suspicion of terrorism now seems to weigh on the entire non-European immigrant community in France. A quotation from the FIDH report illustrates how easily an immigrant becomes a terrorist suspect:
"Inevitably, individuals in refugee and immigrant communities flock together around certain social centres, shops and restaurants, run by their compatriots. It is possible, and maybe probable, that these places now and then are the scene of criminal activities. But the mere knowledge of the fact that a person frequents such places or has been seen there, the fact that he or she has been seen associating with other persons who may be involved in criminal activities is not a sufficient basis for criminal charges, and even less for accusations of 'terrorist' activities".
Based on its analysis of French anti-terrorist law and practice, FIDH calls for the abolition of the French provision making participation in a terrorist conspiracy or organisation an offence.
This demand by a leading international human rights group deserves consideration not only in France, but also in all other European countries which have introduced or are considering introducing similar legislation. Time is running short. Indeed, on 21 December 1998, the EU Council adopted a Joint Action aimed at making "participation" in a criminal (or terrorist) organisation a criminal offence in all Member States (EU doc 498X0733; see this FECL: "JHA meeting 3-4 December: Participation in a criminal organisation") If implemented, this Joint Action would open wide the door to the surveillance and prosecution (with the help of Europol) of innocent people, labelled as "terrorists" on arbitrary grounds. While such a development is unlikely to promote security, it would undoubtedly affect justice and freedom in the Union's much praised "area of freedom, security and justice".