COMMITTEE ON ENFORCED DISAPPEARANCES EXAMINES THE REPORT OF FRANCE
The Committee on Enforced Disappearances today concluded its consideration of the initial report submitted by France on how it implements the provisions of the International Convention for the Protection of All Persons from Enforced Disappearances.
A statement by Christiane Taubira, Minister of Justice of France, was delivered in which the Minister recalled how France had played a key role in bringing about the Convention for the Protection of All Persons from Enforced Disappearance. France was honoured that the Convention, which crowned three decades of tireless effort, was signed in Paris on 6 February 2007. The joint and tenacious efforts of many nations were commensurate with the extent and the gravity of the crime of enforced disappearance. No country could believe it was free from the scourge of it. The Minister recognized that French law did not currently meet all obligations but a new draft law would bring French legislation into line with the Convention and would hopefully enter into force toward the end of June 2013.
Presenting the report, Nicolas Niemtchinow, Permanent Representative of France to the United Nations Office at Geneva, said even though enforced disappearance was not yet a standalone crime in the Criminal Code there could be no doubt about the prohibition of enforced disappearance in France. French national legislation would only fully comply with obligations once draft law 736 was passed by the Senate and no obstacles to its adoption were foreseen.
The Committee was also addressed by a representative of the National Human Rights Institution of France who spoke about the responsibilities of a hierarchical superior to a specific liability regime, the statute of limitations and its extra-territorial competence.
During the dialogue Committee Experts asked questions about matters including secret detentions, extradition proceedings for French and non-French nationals, the independence of investigations into cases of enforced disappearance, the abduction of a child and the rights of a person who was being held incommunicado.
In concluding remarks Suela Janina, Committee Member acting as Co-Country Rapporteur, thanked the contribution of France for the drafting of the Convention and the activities it had undertaken towards the universality of the Convention, and made recommendations on how draft law 736 could be strengthened.
Alvaro Garcé García Y Santos, Co-Country Rapporteur, said the Committee expected much from France and would be deeply honoured if its recommendations were taken on board. It was a common endeavour and the masters of the codifying generation would be delighted to see their work continuing today.
In concluding remarks Mr. Niemtchinow expressed great pleasure with the high-level exchanges that went to the core of a matter that was extremely complicated in nature. He assured the Committee that its recommendations would be looked at very closely, not only by the Government and legislature but also by civil society.
Mamadou Badio Camara, Committee Chairperson, concluded the meeting by thanking the delegation and the French Government for their firm commitment to promote and effectively implement the Convention.
The delegation of France consisted of representatives from the Ministry of Justice, the Ministry of Foreign Affairs, the Ministry for Home Affairs, the Ministry of Defence, the Judicial Department and the Permanent Mission of France to the United Nations Office at Geneva.
The next public meeting of the Committee will be at 5 p.m. on Wednesday, 17 April when it meets with national human rights institutions to discuss methodology of engagement. The Committee will conclude its fourth session on Friday,19 April.
Report
The initial report of France can be read via the following link: CED/C/FRA/1
Presentation of the Report
CHRISTIANE TAUBIRA, Minister of Justice, in a message delivered by NICOLAS NIEMTCHINOW, Permanent Representative of France to the United Nations Office at Geneva, said she would have been honoured to lead the delegation herself and very much regretted that her burden of work meant she was unable to do so. The report was the outcome of a very long procedure and lengthy fight that France had actively participated in. France had initiated the draft Convention for the Protection of All Persons from Enforced Disappearance, and the initial Declaration on Enforced Disappearance adopted by the General Assembly on 20 December 1978. France chaired negotiations on the Declaration for the Protection of People from Enforced Disappearance on 18 December 1992 and held the Presidency of the Working Group of the Human Rights Commission in order to develop what became the International Convention for the Protection of All Persons from Enforced Disappearance, for which the Committee was now responsible for overseeing.
France was honoured that the Convention, which crowned three decades of tireless effort, was signed in Paris on 6 February 2007. The joint and tenacious efforts of many nations were commensurate with the extent and the gravity of the crime of enforced disappearance. The Minister stressed that the crime of enforced disappearance was irreducible to the sum of its component actions, even when its components constituted crimes in themselves. In the same way, the crime of enforced disappearance was not just an addition to violations of fundamental rights recognized and protected by other instruments, whether the right to liberty and security, the right to recognition of legal personality, the right not to be subjected to inhuman or degrading treatment or the right to life. Enforced disappearances were all of those violations, but they were also more.
The singularity of the frightening crime of enforced disappearance was indeed the will to hide acts committed as well as to hide the victims. The perpetration of the crime involved the organization of the conditions under which it could be denied. It was that secrecy, that "veil of nothingness" that covered entire disappearances. That victims were withdrawn from the protection of the law and perpetrators could hide from justice only instilled in the minds of many the idea that ultimately, no help could be expected from the law. To counter the heinous crime the Convention imposed an original, comprehensive and effective legal instrument that took international humanitarian law, human rights law and criminal law in term, to protect, prevent and provide reparations for the crime of enforced disappearance. No country could believe it was free from the scourge. Recently the French and Argentinean Foreign Ministers wrote to all countries that had not yet ratified the Convention urging them to do so and recognize the competence of the Committee.
France would loyally recognize and implement all conditions and obligations. The Minister recognized that French law did not currently meet all obligations but a new draft law, number 736, would bring French legislation into line with the Convention and would hopefully enter into force toward the end of June 2013. France was very much attached to its membership of all the human rights treaty bodies. The Minister emphasized the importance her Government held that the Convention be universal and fully implemented.
NICOLAS NIEMTCHINOW, Permanent Representative of France to the United Nations Office at Geneva, presenting the report, spoke first about a new bill to adapt the Criminal Code of France. The Rule of Law held very strong guarantees for individual freedoms. Even though enforced disappearance was not yet a standalone crime in the Criminal Code there was no doubt that enforced disappearance were absolutely prohibited in France: it was a manifestly unlawful act, even if the perpetrator were to act as the result of a lawful, legitimate command, and it was an act that any State agent, be he or she a member of the military or the Government, could refuse to carry out. There could be no doubt about the prohibition of enforced disappearance. Other rights, such as protection against slavery and torture, and the right to life, also covered it. The current legal framework, within the common law framework, allowed for the implementation of the Convention. Many of the rights guaranteed by the implementation of the Convention could more easily be guaranteed under Common Law.
Regarding the legislative work currently underway in France, French national legislation would only fully comply with obligations once the draft bill 736 was passed by the Senate – through which it would go before as an emergency reading. A text of bill 736 had been circulated to the Committee. No obstacles to its adoption were foreseen. That bill intended to make the crime of enforced disappearance a standalone offence, with a single definition, that was also a crime against humanity, and to establish a regime of specific responsibility, ensure competence of French jurisdictions to hear cases of enforced disappearance and meet other principles. Mr. Niemtchinow and his delegation looked forward to a constructive and fruitful dialogue with the Committee and were prepared to answer any questions.
Questions from the Experts
ALVARO GARCE GARCIA Y SANTOS, Committee Member acting as Co-Country Rapporteur, thanked France for submitting the report and responding to requests for clarification in a timely manner, and their generally incredibly helpful approach.
Mr. Grace Garcia y Santos recalled that in the latter half of the 1970s there were reports of many atrocities of enforced disappearance from the southern cone of South America, particularly Argentina, Bolivia, Chile, Paraguay and Uruguay. Between 1978 and 1980 the international community sketched out an initial response to those crimes seen in that southern cone. Argentina led other States to create a right for persons not to be victims of enforced disappearance, including victims’ rights to reparations. The Convention was indeed a result of the initiative of France, and was also a result of the tenacity of many civil society organizations and individuals. Mr. Santos particularly praised the valuable contributions of Professor Manfred Nowak, and two Frenchmen, Professor Joinet and Ambassador Bernard Kessedjian.
All history was contemporary history, meaning that the past had a positive impact on the present, Mr. Grace Garcia y Santos said. The Convention needed to fully meet its potential, so it did not just gather dust as a limited international mechanism.
Firstly, what role did civil society have in the drafting of the report? Secondly, the report referred to Article 55 of the French Constitution; did that imply a condition of reciprocity? Did there exist in French law a provision which expressly prohibited enforced disappearance under any circumstances including exceptional circumstances, such as emergency law, political instability, or a state of war, etcetera?
Mr. Grace Garcia y Santos asked in which cases a person could refuse to carry out an order to commit an enforced disappearance, and in which cases such an order would be manifestly illegal? Could the delegation provide specific examples of how junior officers might refuse such an order? What was the difference in terms of responsibility between civilian superior officers and military superior officers for committing a crime of enforced disappearance? What would be the minimum punishment meted out for the crime of enforced disappearance under both the current system and under the draft proposed system? What was meant by the criminal responsibility of companies in cases of enforced disappearance?
SUELA JANINA, Committee Member acting as Co-Country Rapporteur, said the Committee welcomed the Government’s decision to use accelerated procedures for draft law 736 but asked for clarification in various areas. She asked about the definition of enforced disappearance, and where acts of terrorism or crimes of kidnapping took place that seriously disrupted political order, what the punishment could be. The Committee noted that the crime of enforced disappearance would be defined as a crime against humanity in the French Penal Code. What did the phrase ‘execution of a concerted plan’ mean in that definition?
Ms. Janina asked about the statute of limitation being 30 years and asked why that length of time had been chosen, and what was the longest sentence for the most serious crimes in French legislation?
A Committee Expert thanked France for their efforts in the drafting and preparation of the Convention, not just their country report. Many questions had already been asked, but the Expert briefly outlined some areas on which he sought clarification, including whether current laws defined enforced disappearance as a form of torture. France’s concentration on Article 3 meant that the Committee had had to raise the spectre of terrorism, the fight against terrorism. The expression ‘non-State entity’ applied to various groups including terrorist groups, and also paramilitary groups. How were those groups treated by the current law?
Another Expert asked for clarification on a specific issue relating to article 12 of the Convention, on carrying out sufficient investigations into cases of enforced disappearance. The questions were raised by alternative reports submitted by several different civil society organizations, particularly those fighting impunity. In order to guarantee the effectiveness of an investigation those carrying it out had to be independent. The organizations had concerns about the independence of public prosecutors and the judiciary, and referred to the fact that it might be necessary to end the monopoly of investigation enjoyed by the Public Prosecutors office for crimes of that nature. What process was followed for investigations within what timeframe? Furthermore what training did the judiciary and public prosecutors have to carry out such investigations?
Did French legislation allow for the extradition of French nationals accused of committing an enforced disappearance, and was it allowed beyond the provisions of the European Arrest Warrant, and were French nationals allowed to be surrendered if they had been requested to stand trial in a country that was not a party to the Convention or a Member State of the European Union?
Regarding the obligation to investigate crimes of enforced disappearance, an Expert asked how the criminal justice system was organized to do so. Of course such investigations may be highly secretive because high-level State officials could potentially have the power to cover up those crimes, and be carried out by independent experts, but how did that work? The Expert recalled a recommendation made by the Committee Against Torture to France requesting some sort of mechanism to guarantee that the authority investigating such a crime be entirely separate from the investigation if the people making up the authority were involved in the alleged events. Had that recommendation been taken up?
Was there any provision within the French legal system for a victim to appeal against a Public Prosecutor’s decision not to prosecute a crime, including a crime of enforced disappearance?
An Expert paid his sincere respects for the leading role France had played in the fight against enforced disappearance as well as its work in bringing about the Convention. With regard to the principle refus d’extradition there seemed to be a legislative gap between the obligations to prosecute or expedite. Could the delegation comment? What about immunity under national or international law?
Statement by the National Human Rights Institution of France
A representative of the Comision Nationale Consultative des Droits de l’Homme said the Institute was established in March 2007 in order to monitor France’s obligations in regard to international human rights treaties. The Institute drew the Committee’s attention to three main points. First, that the draft law 736 would strictly comply with the definition of the crime of enforced disappearance as the intentional element was not an element required for the qualification of the crime. Secondly, regarding the responsibilities of high-level officials, the law should refer to the responsibility of a hierarchical superior to a specific liability regime, rather than a regime of complicity. Thirdly, regarding a prescription of public action, it was hoped that the draft bill would state that the starting point of statute of limitations would start from the time the offense began in all its elements. The Institute also spoke about its extra-territorial competence, saying that draft law 736 would allow for extraterritorial jurisdiction of French courts.
Response of the Delegation
A delegate turned to the responsibility of senior officers or officials, saying that was an area outlined in draft law 736. For crimes of that nature there was an autonomous definition of an accomplice, who would receive their same sentence as a perpetrator, and that included senior officers or line-managers.
The statute of limitations could only begin once the crime was finished. There was no requirement for reciprocity for human rights treaties; a judge did not need to see how other States parties applied the Convention before making his own ruling.
Yes, there was a general prohibition of enforced disappearance, and all such behaviours would be sanctioned. Even in exceptional circumstances, such as states of war or emergency, the criminal code would remain applicable.
The first debate of the new draft law 736 would be next week, 18 April, and until then people could submit amendments to it. The law would then be debated in the Senate the following week.
Asked about the actions of a person who committed enforced disappearance who was not an agent of the State, a delegate replied that then it would be a criminal act and punishment would depend upon who the victim was, and could vary from 20 years to life imprisonment.
The difference between the responsibility of military and civilian perpetrators came from the Rome Statute of the International Criminal Court. Military personnel had a very specific power to act upon their subordinates, whereas civilians had more of a distance. French law was entirely in line with the Convention on acts committed in wartime, whereas sanctions in any case were exactly the same.
There were no minimum sentences for the crime of enforced disappearance, a delegate confirmed. He added that yes, there was a possibility for early release; it depended upon whether the person concerned was a first or a repeat offender, upon the sentence, and other conditions (a list of which could be provided to the Committee).
Concerning extenuating circumstances, optional under the Convention, France had not acted upon that option as they believed enforced disappearance was such a serious crime they did not want to provide for extenuating circumstances. However, aggravating circumstances were different, as a life sentence was at stake and a life sentence was very lengthy, especially towards the end, as was commonly said.
The delegate confirmed that there was a court specializing in terrorism in Paris, but no court specifically for enforced disappearance: all French courts were competent to judge those cases.
Crimes with a longer statute of limitations than 30 years were war crimes and crimes against humanity, for which there was no statute of limitations. For all other crimes it was 30 years.
Regarding the differences in jurisdiction, any victim could benefit from legal aid, which was means tested and available to everybody below a certain level of income.
France did provide assistance to other States parties and non-States parties; it did not require countries to be a State party to the Convention or to have a bilateral agreement.
The Experts referred to the parallel report by non-governmental organizations referring to the monopoly by the Public Prosecutors in investigating cases of enforced disappearance, a delegate said, stating that no such monopoly existed by the Public Prosecution in that respect.
Under French law victims in the broadest terms could instigate civil proceedings, then they could request official documentation, respecting the formal requirements, appropriate deadlines and so on. A magistrate must formally answer them, a Court of Appeals must have a say, and so on.
Turning to whether France could extradite French nationals, and the European Arrest Warrant, a delegate said France did not extradite its own nationals but it did judge them. If a French national was wanted for questioning abroad France would refuse to extradite them but it would question them itself. However, if a European Union Member State asked for a French national to be handed over then France would do so. Assets, people, etcetera freely circulated within the European Union, which France was a part of.
In France prosecution was carried out under the initiative of the public prosecution. In criminal proceedings an information system was compulsory, so an independent examining magistrate was appointed who had all the authority of a fully appointed magistrate. They could hear witnesses, summon evidence, search for evidence and had all possible powers.
The Committee asked whether the secret nature of the crime of enforced disappearance made it easier for perpetrators to escape from justice. That was not the case, for example an examining magistrate could carry out investigations in police cells, prisons or detention centres. The judge was always independent and could act in that manner, and that was typical of the French system.
Regarding the recommendation of the Committee Against Torture for the investigating authority to be made entirely independent, a delegate said it did rarely occur that a military or police officer was accused of torture, or there was an accident between, say, a police car and burglars. There was a special service under the inspectorate of the service so that investigators were always independent of the suspects. Obviously it had to be that way otherwise the judicial system would not stand up.
France applied the principles arising from the International Court of Justice, for example ‘extradite or prosecute’. French courts had a triple competence; either the victim or accused was French, or the crime had been committed on French soil. Any person suspected of committing the crime of enforced disappearance on French soil could be judged by a French judge. In a case that did not fall under the jurisdiction of French courts France did have an extradition agreement even to States not party to the Convention.
Regarding the matter of immunities recognized by the French Constitution and under international law, a delegate said that to put it simply there were immunities from prosecution for the highest levels of the State, e.g. the President and Members of Parliament. Those people enjoyed immunity vis a vis the French authorities. There could be no appeal against those immunities in the case of prosecutions taken by the International Criminal Court. Other immunities included diplomats, foreign Heads of States and Ministers. In those cases French Courts applied international agreements, for example the United Nations Educational, Scientific and Cultural Organization (UNESCO) Headquarters agreement which provided immunity to UNESCO staff working at the headquarters in Paris. Or immunity provided by customary practice which was also recognized by French authorities. However, if a crime of enforced disappearance was committed by the Head of State it was probable it would be a systematic and widespread crime rather than committed by that one individual; it was difficult to see how a Head of State could singularly commit a crime of enforced disappearance without involving someone else, they simply would not have the time. However a Head of State could go before the International Criminal Court. Nobody’s immunity went so far that if they had committed a crime of enforced disappearance they could not be prosecuted.
Reciprocity was required in all extradition treaties and France did not want to cast any doubt on that at all. Looking at the trends in French courts, a delegate said, French magistrates paid attention to that need for reciprocity. When they requested an extradition they did not dwell on whether there was reciprocity, as French mutual support was not based on reciprocity. Requests for mutual aid were always responded to favourably without the need for reciprocity.
A delegate explained that accomplices to a crime would always be given the same sentence or sanction as the person who committed the actual crime. In fact often they were given a heavier sentence as they were the ‘mastermind’ of the crime and more responsible than the individual who carried out the actual act. For example, the people who attempted to assassinate General Charles de Gaulle were sentenced to death, while the person who pulled the trigger, who fired the actual bullet, was not. In the end General de Gaulle pardoned all of them, but the accomplices who planned the assassination did initially receive the ultimate sentence.
Questions by the Experts
SUELA JANINA, Committee Member acting as Co-Country Rapporteur, asked the delegation to provide information on legal provisions and effective procedures that guaranteed the prohibition to expel, return, surrender or extradite a person in danger of being subject to enforced disappearance. She asked whether those procedures applied in the so-called ‘waiting zone’, and what mechanisms were available for persons whose removal from French territory may put them at risk of being subjected to enforced disappearance?
Ms. Janina asked about the so-called ‘priority procedure’ and for which cases and under which protocol it was used. Did persons treated under that procedure have recourse before the National Asylum Court? Were diplomatic assurances used by the State party for the transfer or extradition of a person in danger of enforced disappearance? Ms. Janina also asked about the principle of non refoulement and how it was respected during the transfer of detainees held in custody by State party officials on the territory of a third country in periods of armed conflict.
Article 25 of the Convention required States parties to punish the wrongful removal of children of disappeared parents as well as falsification, concealment or destruction of documents attesting the true identity of such children, Ms. Janina said. She noted that French legislation criminalized the abduction of children, but that draft law 736 did not codify the crimes provided in article 25. Could the Committee please comment on that, and also on the conditions that could lead to the review or even annulment of any adoption or placement of children that originated from enforced disappearance? How did the State party maintain the best interests of the child, as defined by the Convention on the Rights of the Child in such cases?
ALVARO GARCE GARCIA Y SANTOS, Committee Member acting as Co-Country Rapporteur, said that the prevention of enforced disappearance was a key issue and correspondingly important. As regarded preventative detention and being held in solitary confinement, the Government stated that solitary confinement was rarely used in practice: could the delegate please provide figures to back that up? As it was legally possible to keep a person in solitary confinement could the delegation explain the conditions under which that was possible?
In respect of cases involving external operations or armed conflicts in which there was participation of the French armed forces, in situations of seizing or holding foreign prisoners, the Committee would like examples of technical or security reasons that stood in the way of communicating personal details about such arrests. What happened in practice where it was impossible to provide such communications?
Turning to the definition of a victim, Mr. Garce Garcia y Santos asked for further information on the status of a person who suffered direct damages as a result of enforced disappearance? What was the difference between a ‘direct victim’ and an ‘indirect victim’ (a victime par ricochet)? Finally, the right to truth, as recognized in Article 24 of the Convention, was that recognized as a stand alone right in French legislation?
Another Expert asked about the rights of a person who was being held incommunicado. It seemed that under French law there was no provision for a person to ask about the whereabouts of another person, as that violated the right to privacy of the person being held incommunicado. In view of the Convention the right of the relatives of a disappeared person must prevail over the rarely claimed right to privacy of the appropriated person who was being held incommunicado. The Expert said he very much doubted that such a person’s right to privacy would be his utmost concern in those circumstances.
Under French legislation arbitrary detentions were prohibited, but secret detentions were not. What scope was there for a secret detention to take place that was not arbitrary? Secondly, the Expert said, people were allowed to be held in solitary confinement for up to 20 days. Solitary confinement could lead to torture, and could also be considered a cruel punishment. The Expert turned to persons accused of terrorism: obviously enforced disappearance was often connected with persons accused of terrorism, there was a close link there. Was there a link between the length of detention for persons accused of terrorism and the chance of enforced disappearance occurring to those persons?
It seems habeas corpus was not a principle that featured in French legal system: did the State party envisage allowing it? An Expert insisted upon the importance of allowing attenuating circumstances for the crime of enforced disappearance, as it may favour the eventuality that the victim be found alive.
Response by the Delegation
A delegate confirmed it was correct that there was no express mention in French legislation prohibiting the return of a person to a country where they would be at risk of enforced disappearance. However, the provisions of the Convention were sufficiently clear to ensure that they could be invoked before a judge and taken into account. The risk of enforced disappearance must be taken into a broader context of the risk of violation of fundamental rights: the right to life, to freedom or the risk of inhuman or degrading treatment. All of those risks could be invoked before a French judge.
A delegate spoke about the exercise of the rights of a person exposed to the risk of enforced disappearance while in a ‘waiting zone’, which was a custodial area of deprivation of liberty, located at a French border, for persons who had applied for asylum or were refused entry into French territory. They were held at those zones until the competent authorities had addressed their situation. After four days, only a judge could extend a person’s time to be held in a waiting zone, up to a maximum of 20 days. All services, including free interpreters, legal aid and advocacy services were provided to individuals held there. If a person believed that, if returned to their country, they would be exposed to a risk of enforced disappearance, they could request asylum. The decision for asylum was taken by the French Office for the Protection of the Stateless and Refugees. The final decision was taken by the Minister for Home Affairs. Entry was only refused if an asylum application was manifestly unfounded. Since 2007, and as a result of the European Court of Human Rights’ condemnation of France in this respect, France has established a suspensive appeal process which allowed an individual a 48 hour period to refer the matter to a magistrate, during which they could not be returned. The judge then had 72 hours to deliver a ruling on the appeal. Those short periods were in line with the fact that individuals could not stay in a waiting zone for longer than 20 days. Criticism had been made that appeals must be submitted in French, which could be a problem, although a civil society organization helped aliens to draft their appeals in French.
The ‘priority procedure’ was the possibility to have an asylum application accelerated in three criteria: in cases of public order, if a foreign citizen came from a country that was listed as a safe country of origin or if the asylum application was considered fraudulent aiming to distort proceedings. Granting of priority procedures must be implemented by administrative authorities, and considered on their own merit. In 2012 approximately 30 per cent of asylum applications were considered via the priority procedure. The delegate noted that the list of safe countries of origin was drawn up by the Office for the Protection of the Stateless and Refugees, not the Ministry of Foreign Affairs or any other, which was entirely independent and included representatives of the United Nations High Commission for Refugees and other bodies. The list was always under review; in fact countries recently removed from the ‘safe list’ included Albania, Kosovo and Bangladesh.
Turning to the questions on terrorists, a delegate reminded the Committee that in France they had an absolute obligation to protect against inhumane, cruel or degrading treatment. The European Court of Human Rights often reminded of that obligation, which was firmly enshrined in the Constitution: the law was crystal clear on that. Contrary to what occurred in other countries, France accepted no diplomatic assurances, meaning that France always conducted its own investigations rather than be satisfied by diplomatic assurances as to the safety of an individual.
There was no secret detention in France. The term ‘rarely’ was wrong, a delegate said, emphasizing that France never used secret detention. If a person was in police custody they could only be held without seeing a lawyer for a maximum of 12 hours. In some cases a person could be prevented from contacting their family for up to 10 days, but a public prosecutor was still involved in their case – they were not being held in secret detention. The European Court of Human Rights made it possible that a person be held for five days and six hours in that way.
Enforced disappearance was now a crime in French law and that took into account the principle of non refoulement. The only thing that was not yet settled, but would be by draft bill 736, was the individual crime of enforced disappearance.
Concerning the concept of a victim, a delegate explained that a victime par ricochet or indirect victim required personal injury to be done to the person. For example, in a car accident if a person was knocked over and wounded by a car they were directly injured, a direct victim. An indirect victim could be indirectly wounded by the injury made to the direct victim, the disappeared person, and thus the family of the direct victim.
Turning to the discord between the right to privacy and the right to truth, the delegate agreed that there was a conflict there. A person in police custody did not necessarily want his family and friends to know if he was detained, or indeed why. However, in some extreme cases the family needed to know what had become of that person. In those cases the family could file an appeal with a public prosecutor, and be told what had happened to that disappeared person; as a result of that the right to privacy would be violated.
If a child believed that her parents were her parents, but the true, biological parents intervened, then the French courts would deal with the situation in the best interests of the child. Such a situation could involve very painful and sensitive circumstances, it was a human problem and there were no clear-cut answers to how to deal with those situations.
There could be a legal ruling upon the wrongful adoption of a child but how things happened in practice vis a vis the child was an extremely difficult thing to solve. If a child was very young he or she could be moved from the adoptive family that had fraudulently obtained him, but if older – for example a teenager – it was more difficult to ignore the opinion of the child even if his rightful paternity was established. Criminal sanctions meted out to the parents in such cases depended upon whether the adoptive parents were co-authors of the crime of enforced disappearance or not. Enforced disappearance was an ongoing crime so the statute of limitations question did not even arise. However it was possible that the parents were not co-authors of the crime and innocent.
It was true that habeas corpus was not formally enshrined in French law. However, French law entitled any person to a 30 minute interview with a lawyer who had access to the case file. The only exceptions were to do with terrorism or serious crimes such as enforced disappearance, for which the right to a lawyer could be postponed for up to 12 hours. Most countries in the world did have a habeas corpus provision, but they also allowed for much longer detention periods before a person must be brought before a judge or public prosecutor.
France did not wait until the third millennium to categorize as a crime the abduction of a child: it was a crime under the Napoleonic era in the 1800s! The sentence for the abduction of a child under 15 years of age was a life sentence, without the possibility to be freed before 22 years had been served.
Concluding Remarks
SUELA JANINA, Committee Member acting as Co-Country Rapporteur, thanked the contribution of France for the drafting of the Convention and the activities it had undertaken towards the universality of the Convention. The Committee knew that the legislative framework of France was not currently in compliance with the Convention but welcomed new draft law 736 and hoped that the State party would take into account the Committee’s concluding recommendations to strengthen that law and ensure it fully complied with the Convention. The Committee recommended that France adopt a definition of the crime of enforced disappearance as an individual crime avoiding vague expressions, and clarify the starting point of its statute of limitations from the moment the crime ceased in all elements. It expressed concern over the definition of enforced disappearance as a crime against humanity in the draft law, which included an element of coordinated plan not seen in the national law. The Committee was not convinced that the priority procedure offered adequate removal. It also recommended that the wrongful removal of children whose father or mother was subjected to enforced disappearance be made a specific crime.
ALVARO GARCE GARCIA Y SANTOS, Committee Member acting as Co-Country Rapporteur, thanked the large and well qualified delegation for an excellent dialogue. The Committee expected much from France and would be deeply honoured if its recommendations were taken on board. It was a common endeavour and the masters of the codifying generation would be delighted to see their work continuing today. He made further recommendations, including that the State party adapt its definition of a victim to recognize all persons who had suffered direct injury or harm as a result of enforced disappearance without it being a personal injury. Recommendations were also made in the field of compensation and reparation, as well as on establishing the responsibility of a superior hierarchy in the crime.
NICOLAS NIEMTCHINOW, Permanent Representative of France to the United Nations Office at Geneva, said Uruguay and France had the honour of being the first two countries to be heard by the Committee and he was happy that the dialogues had gone beyond expectations, with high-level exchanges that went to the core of a matter that was extremely complicated in nature. The delegation had had to explain transparently what measures France needed to take to bring its laws into line with the Convention, and he assured the Committee that its recommendations would be looked at very closely, not only by the Government and legislature but also by civil society. The draft law 736 would be debated by the National Assembly of France next week, with a view to being adopted by the summer of 2013. These first hearings were not only the outcome of a tenacious process started several decades ago, but the start of a collective enterprise to which France would be as dedicated in the future as it was in the past.
MAMADOU BADIO CAMARA, Chairperson of the Committee, thanked the delegation and the French Government for their firm commitment to promote and effectively implement the Convention.
For use of the information media; not an official record
CED13/004E