France
Detention is an important part of this pre-emptive system. It’s important to note that the French system of justice is based on an inquisitorial approach in which an investigating magistrate (an inexact translation of juge d’instruction) conducts a judicial investigation of serious criminal offenses. The investigating magistrate, somewhat of a cross between a prosecutor and a judge, has no precise analogue in the Anglo-Saxon system of justice. He is not an advocate for the prosecution or the defense, but rather he is charged with conducting an impartial investigation to determine whether a crime worthy of a prosecution has been committed. Because these magistrates are in theory impartial arbiters, they are granted fairly wide powers to open judicial inquiries, authorize search warrants and wiretaps, and issue subpoenas: powers that in the U.S. would require authorization from a judge. There are seven investigating magistrates in France that handle all of the terrorism cases in the country. In practice, the terrorism magistrates are not impartial investigators, they act like prosecutors but have the powers of a judge—a fact often noted by human rights advocates.
The investigating magistrate can make use of two types of detention, both highly regulated within the judicial system: pre-charge detention (garde à vue) and pre-trial detention (détention provisoire). In normal cases, pre-charge detention is allowed for 24 hours, extendible once. But if the case involves terrorism or a few other serious crimes, the investigating magistrates can authorize pre-charge detention for four days and, under some circumstances, six days. Suspects are not entitled to see their lawyer until after 72 hours, and even then the lawyer is usually only allowed 30 minutes with the suspect. The suspect can usually notify his representatives of his arrest, but that privilege can be denied by the prosecutor if he believes it might prejudice investigations and it often is in terrorism cases. He is also not notified of his right to silence and can be interrogated without his lawyer present. As noted, the limitation of these rights is justified by the supposed impartiality of the investigating magistrate who is not considered an advocate for the prosecution.
If the investigating magistrate recommends that the suspect be charged, he may also recommend pre-trial detention. Such detention is by law recommended only if it is necessary to preserve material evidence, prevent witness pressure, prevent flight, or to protect the accused, but it is quite common in terrorism cases. Pre-trial detention can last for up to four years in terrorism cases with the investigating magistrate effectively determining the pace of the investigation and therefore the trial. Alternatively, the investigating magistrates can also decide on house arrest and other limitations, such as bail or the surrender of a passport. There were some well-publicized abuses of pre-trial detention in terrorism cases during the 1990s, so since 2001, all pre-trial detentions must be approved by a new type of independent magistrate, the Liberty and Detention Judge (juge des libertés et de la detention). That judge must also hold a hearing every four or six months (depending on the charge) to re-authorize pre-trial detention in which he insures that that the investigation and trial are progressing at a reasonable pace.
There have been many allegations of torture taking place during detentions, particularly of the use of extended questioning periods and sleep deprivation, but no accusation of systematic abuse. In response, France created in 2007 an independent authority for the monitoring of all places of detention, the Inspector General of Places of Deprivation of Liberty (Controleur Général des lieux de privation de liberté), but it is not yet operational. There are also controls in place to ensure that the suspects are seen by doctors at various points in the process.
French counterterrorism officials view both types of detentions as critical to their success. The ability to hold essentially anybody for four days and to hold charged suspects for four years gives them ample opportunity to assemble a case. The investigating magistrates have occasionally chafed at the short pre-charge detention period, gaining an increase to six days under exceptional circumstances in 2006. But they consider the ability to question suspects for three days without a lawyer as critical and usually sufficient to obtain information about terrorist networks. In the 1990s, there were many instances of mass arrest (50-100 people) for preventative and intelligence purposes, including before the 1998 World Cup in Paris in which people would be arrested in what were essentially sweeps. That technique is no longer used, but the pre-charge detention period is still clearly used as an investigative technique in a more individualized fashion. The investigating magistrates also see the pre-trial detention as allowing them the time to assemble evidence from multiple sources, and to find alternatives sources for intelligence information that can’t be used in trial.
This system of detention has been roundly criticized by human rights organizations within and beyond France, including in a highly critical report by Human Rights Watch released this month. The role of the investigating magistrates is broadly condemned as too powerful and lacking in procedural checks, even after the reforms to create a Liberty and Detention Judge. Certainly, by American standards, the French counterterrorism apparatus is extraordinarily repressive and intrusive and this repression falls particularly on specific groups, primarily Muslims and Corsicans. During the wave of terrorist attacks in 1995, French authorities detained some 70,000 people for questioning; the vast majority of them were North African.