COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF FRANCE

The Committee against Torture this morning began its consideration of the third periodic report of France on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Michel Doucin, French Ambassador for Human Rights, introduced the report, saying that five points were of interest in the presentation of the report: physical conditions for the deprivation of liberty; the evolution of the penitentiary system; the reinforcement of guarantees; the training and punishments that accompany the ban on torture; and the promotion of the Convention on the international level. France was meeting certain difficulties, and did not wish to conceal that some mistakes could have been made, and, despite France’s divergence of opinion with the Committee in certain cases, it recognised certain disfunctionalities, several of which had earned France the condemnation of the European Court of Human Rights, or decisions from the Committee on specific situations. The introduction had also tried to present the reasons explaining the difficulties encountered, and the remedies that had been identified.

Serving as Rapporteur for the report of France was Committee Expert Guibril Camara, who said the quality of the report was excellent, not only meeting the guidelines, but the delegation had tried hard to respond to the Committee’s questions, and had responded frankly. On definitions, the Committee recognised the efforts of France to ensure recognition and punishment of torture. It was not the first time a State party had claimed to have a wider definition than that of the Convention, but there was a problem in this case. The Convention aimed at protecting those who were in the hands of the State, among others, but there was a need to stress even more and to insist to the State party that despite its good will and intentions in the general way to combat torture, it should not be subsumed in general violence

Andreas Mavrommatis, speaking on behalf of Claudio Grossman, the Committee Expert serving as Co-Rapporteur for the report, said the report was of high quality, but there were a number of cases of abuse of rights of individuals by the police. The situation had not yet been reached where it could be said that every member of the European Union was free of torture. Significant breaches by those involved in public security and an increase in police violence had been reported, and the delegation should explain what France was doing to reverse this situation. Pending the construction of new prisons, what other measures were being taken to ensure there was no over-crowding, he asked, suggesting that one independent body be entrusted to visit prisons and make recommendations including temporary, long-term and short-term measures.

Other Committee Experts raised questions on issues pertaining to, among other things, over-crowding in prisons, which was touched upon by several Experts; were there any cases of complaints by prisoners of inhuman and degrading treatment and whether these had been taken to court, and whether compensation had been paid in reparation; a request for an elaboration of the special circumstances for incommunicado detention and how long this could be extended; whether there was a complete ban on measures blocking the respiratory system during the deportation process; issues linked to statistics; and a request for a comment on allegations that police officers had a two-tier system in which charges were brought quickly against others, but took a long time when charges were made against police officers. .

Also representing the delegation of France were representatives of the Ministry of Foreign Affairs, the Ministry of the Interior, the Ministry of Justice, and the Ministry of Overseas Territories.

The delegation will return to the Committee at 3 p.m. on Friday 18 November, to provide its response to the questions raised this morning.

France is among the 140 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.

When the Committee reconvenes at 3 p.m. this afternoon, it will hear the answers of Austria to the questions posed by the Experts on Tuesday, 16 November.

Report of France

The third periodic report of France (CAT/C/34/Add.19) says that 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 against Torture and is binding on the legislature, executive, administration and judiciary. France has subscribed to the principle stated in article 5 of the Universal Declaration of Human Rights (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”) and is bound by several comparable international instruments prohibiting torture and treatment. 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 instruments.

French legislation does not contain any definition of torture within the meaning of the Convention. 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. 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.

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. Through specific procedures particular to each one, the various states of exception 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. French law as it stands is consistent with article 3 of the Convention as regards refoulement at the border, deportation from the territory (return to the frontier and expulsion) and extradition. Even if France had not ratified the Convention, extradition that would render a person liable to torture would be considered to be unlawful by French courts. With the entry into force of the Convention, that is now definitively the case.

Presentation of Report

MICHEL DOUCIN, French Ambassador for Human Rights, said the National Consultative Commission of Human Rights, which brought together many members of French civil society, had been included in the preparation of the report. Five points were of interest in the presentation of the report: physical conditions for the deprivation of liberty; the evolution of the penitentiary system; the reinforcement of guarantees; the training and punishments that accompany the ban on torture; and the promotion of the Convention on the international level.

On the first point, the European Commissioner for Human Rights had noted the over-crowding in some French prisons, and that in some cases minors and adults were held together. A renovation programme was underway, which would improve the situation of overcrowding and increase levels of hygiene, whilst hopefully decreasing incidents of violence. A plan aimed at improving the capacities of the penal system would only be effective in the context of the possible evolution of the incarcerated population, and therefore there was a need to reflect upon the purposes of the sentencing. The reasons for the over-crowding were being examined. The deprivation of liberty was not an end in itself, it had as a final goal the reinsertion of the detainee into society. France was searching for solutions in this regard and alternatives including braceleting were being examined.

Imprisonment was often suspected of encouraging ill-treatment, and this was also a topic of concern for the French legislation and administration, which had legislated in order to ensure that bodies be charged with the oversight of the respect for the rights of detained foreigners, as well as the respect of standards linked to hygiene, cleanliness, and the organization of places of detention. Another law and a decree had confirmed the right of access of representatives of the High Commissioner of the United Nations, as well as of humanitarian associations. Lawyers also had permanent access to places of detention. Specific guarantees were made with regards to asylum seekers.

These, Mr. Doucin said, were the five points on which France was developing its policies to fight against torture and cruel, inhuman and degrading treatment. The presentation had not tried to hide the difficulties that France was meeting, and did not wish to conceal that some mistakes could have been made, and, despite France’s divergence of opinion with the Committee in certain cases, it recognised certain disfunctionalities, several of which had earned France the condemnation of the European Court of Human Rights, or decisions from the Committee on specific situations. The introduction had also tried to present the reasons explaining the difficulties encountered, and the remedies that had been identified.

Response by Delegation

The delegation responded to a series of written questions prepared by the Committee in advance and sent to the State party beforehand. French legislation did not have secret detention in its legislation, and detainees had the option of contacting their families immediately and informing them of their situation. Detainees could also have contact with the outside, receiving mail and visits. They had limited access to phone calls in some institutions. If a detainment continued beyond 72 hours, then this was under the supervision of the Public Prosecutor. Access to a doctor was authorised at any time.

On the law of June 30 2000 on interim measures, this law had been implemented to change the regime with regard to administrative decisions, and had set up two different types of procedures: the deprivation of liberty and the conditions for these. The conditions for interim measures had been relaxed. For their suspension, there needed to be a serious risk, indeed a condition of emergency. On the follow-up to recommendations on the respect of article 3, and with regards to precautionary measures taken by France when the refoulement measure was implemented at the border or expulsion from French territory applied, the delegation said that the Aliens Code and Right of Asylum specified that an alien could only be expelled to a country if it was established that their life or freedom was not endangered, and that the person was not at risk of being exposed to treatment that ran counter to Article 3 of the European Convention on Human Rights.

On the use of force when executing expulsion measures, new guidelines had been issued in 2003, which stressed the need to use specialised persons to accompany such expulsions and specific measures which were to be applied. Only necessary force should be used, and only certain technical gestures could be applied, following a review made by medical personnel. On a question on issues linked to violence that occurred during expulsion procedures, these had led to specific measures being taken to be applied during the procedure. There had been two complaints of violence.

Concerning a question on the follow-up of the recommendations made at the last report on a definition of torture in the Criminal Code. French legislation had specific mention of acts of torture and barbarous acts, which could be sanctioned by 15 years imprisonment, and aggravating circumstances could increase this penalty. There was a definition of acts of barbarity, as acts that were severe, going past simple violence, and which caused the victim suffering and pain, and had a moral element resulting in the degradation of the victim. Aggravating circumstances included a person acting in the course of a public function. There were articles in the Criminal Code, which provided an option for any person on French territory to be tried for acts of torture committed abroad.

Asked about the practical guide or manual issued to police, the delegation said this did not actually mention the United Nations Convention against Torture, but it did highlight the various needs to respect a person's dignity, to limit acts of violence, and in the next edition, there would be a mention of the Convention. On a question on ill-treatment, France stressed the need to respect the physical integrity of persons detained before trial, as well as their psychological integrity. Foreigners benefited from medical attention with the aim of finding traces of physical or psychological violence, in the case of which, medical personnel were to take certain measures.

With regard to administrative detention of foreigners who were leaving the country, this was reviewed by a law of December 2003, which had extended the maximum period for which people could be held, in order to ensure the effective implementation of removal measures, and was accompanied by a number of legal guarantees, including that this prolongation could only be decided by the judge on freedom and detention. In practice, average detention did not extend beyond 10 days. At present, French law did not contain any provisions dealing with the prevention of trade or export of any equipment designed for torture or degrading treatment, but this lack would be filled soon.

Questions by Experts

GUIBRIL CAMARA, the Committee Expert serving as Rapporteur for the report of France, said the dialogue of the Committee and France had been broken off since 1998, and the present report should have been submitted in 1996. However, the quality of the report was excellent, not only meeting the guidelines, but the delegation had tried hard to respond to the Committee’s questions, and had responded frankly.
With respect to the actual scope of the report, it appeared that no distinction was drawn between the metropolitan area of France, and the overseas territories. The Committee would like to know what the situation was with regards to the respect of the Convention in these last areas, and it would be useful to include a part in the report on these territories. France, within the United Nations, had sent troops to various places such as Côte d’Ivoire, and how were these troops managed, and how did France ensure respect for the provisions of the Convention by its troops on foreign soil, Mr. Camara asked.

On definitions, Mr. Camara said that the Committee recognised the efforts of France to ensure recognition and punishment of torture. It was not the first time a State party had claimed to have a wider definition than that of the Convention, but there was a problem in this case: the actual definition of the Convention aimed at covering behaviour that should be condemned in the way in which the penal processes were conducted. The Convention aimed at protecting those who were in the hands of the State, among others, but there was a need to stress even more and to insist to the State party that despite its good will and intentions in the general way to combat torture, it should not be subsumed in general violence, which was the case in the statistics provided by France, in which it was impossible to determine where torture was carried out by public officials, or by private individuals. The State party should clearly distinguish between violence as part of the penal process, and general violence.

The Convention provided absolute protection for any individual, regardless of their behaviour on the territory of the country, Mr. Camara said, especially if that person feared torture if sent back to their country of origin. France would have to examine the administrative question to ensure that persons fearing torture were not returned to their country along with other people in different circumstances. The Committee had already made some observations on the question of appeals and remedies to expulsion, and more clarifications were required.

ANDREAS MAVROMMATIS, speaking on behalf of CLAUDIO GROSSMAN, the Committee Expert serving as Co-Rapporteur for the report of France, said the report was of high quality, but there were a number of cases of abuse of rights of individuals by the police. Incommunicado detention was also raised - there had been information that a person had been held in this detention for nine years, and there was a need to confirm or deny this report. The international community had put time limits on this, as the longer one could not see a lawyer, the greater the risks of resorting to measures that were unwanted and unwarranted by the international community. France should explain what measures were taken when this form of detention was prolonged, and what measures were taken to ensure that no malpractice or resort to torture or cruel treatment was taking place in this circumstance.

The situation had not yet been reached where it could be said that every member of the European Union was free of torture, Mr. Mavrommatis said. How did French asylum law square with the provisions of the Convention, he asked, in particular with regards to the law stipulating that a person who had access to an area of safety within their country had no need to be granted asylum. The procedure in place for examining asylum claims was marred by the fact that many agents implicated in this had not received specific human rights training and relied on personal experience, and this needed to be remedied, and the delegation should explain what France was doing in this regard. Mr. Mavrommatis also raised specific issues linked to events and circumstances in which expelled detainees had died, asking whether France had implemented European Union guidelines for deportation.

How had France maintained its standards with regards to the implementation of human rights in prisons in the light of reduction of the number of prison personnel, Mr. Mavrommatis asked. Significant breaches by those involved in public security and an increase in police violence had been reported, and the delegation should explain what France was doing to reverse this situation. Was mistreatment suffered by prisoners automatically brought to the attention of the authorities, and how was this applied, he asked. Pending the construction of new prisons, what other measures were being taken to ensure there was no over-crowding, he asked, suggesting that one independent body be entrusted to visit prisons, making recommendations including temporary, long-term and short-term measures.

Other Committee Experts also raised a series of questions and raised issues, namely over-crowding in prisons, which was touched upon by several Experts: were there any cases of complaints by prisoners of inhuman and degrading treatment and whether these had been taken to court, and whether compensation had been paid in reparation; what was done to prevent the spread of contagious diseases in the prison system; a request for an elaboration of the special circumstances for incommunicado detention and how far this could be extended; whether there was a complete ban on measures blocking the respiratory system during the deportation process; issues linked to statistics; allegations that police officers had a two-tier system in which charges were brought quickly against others, but took a long time when charges were made against police officers; and whether there were any guidelines or instructions governing body cavity searches of persons taken into detention either temporarily or long-term.

An Expert noted the Committee had full sympathy with France in this trying time, and had full sympathy with the efforts of the police to stabilise the situation, noting that no serious casualties had occurred. The main concern of the Committee was the pronouncement of the Ministry of the Interior that he had ordered the immediate expulsion of those convicted of crimes during the riots, whether they had regular or irregular papers, including those with residence permits, as this could be seen as a form of punishment.

For use of the information media; not an official record

CAT05030E