Key Benefits:
(Plenary Assembly - 25 September 2014)
1. On 9 July 2014, a bill to strengthen the counter-terrorism provisions was adopted by the Council of Ministers. This new text comes in an extremely disturbing context where a growing number of young French people leave the territory of the Republic to go abroad to form or fight in armed conflicts within terrorist groups, often before returning "warranted" to France (1). If these behaviours pose a real risk and involve the greatest vigilance of the public authorities, the extreme complexity of this phenomenon must nevertheless be emphasized (2). Some have been able to leave by indoctrination, by clutching or by "reflective idealism" without wanting to go to the act. Others were able, upon return, to abandon any terrorist action to the test of the atrocities experienced. The great diversity of these situations leads the CNCDH to warn against any too simplistic or reducing approach to the phenomenon. It is absolutely necessary to avoid any early and self-directing labelling process. However, the CNCDH fully shares the fears of the Government and can only support and encourage the implementation of a broad policy of prevention and suppression of terrorist acts (3). If it approves without naiveness the need for deterrent measures in this regard, it also considers, and above all, that the phenomenon described above must be combated by mechanisms of social prevention and an ambitious inter-ministerial policy of "tight hand", especially in the school environment, in the "ghettoized" neighbourhoods and in prisons where too many young people are convinced to be without future and without future.
2. The bill, several of which are related to the law of the internet, has undoubtedly the merit of taking note of a major societal evolution already noted by the Constitutional Council and the European Court of Human Rights: "The Internet has now become one of the main means of exercising by individuals their right to freedom of expression and information" (4). However, the impact study makes an alarming observation: "The Internet is today the main vector of propaganda, recruitment and incitement to terrorism" (5). This harmful use of cyberspace by individuals or groups linked to terrorism (6) requires the definition of new strategies and means of struggle to prevent freedom of expression from degenerating into or on the appeal of terrorism. For the CNCDH, a general reflection on the Internet and fundamental rights (7) as well as the possible definition of a "digital public order" must be initiated (8). The Court of Strasbourg has not stated in this sense that "the internet is certainly an information and communication tool that is particularly different from the written press, especially as to its ability to store and disseminate information. This electronic network, serving billions of users worldwide, is not and may never be subject to the same rules and controls. Certainly, online communications and their content are more likely than the press to undermine the exercise and enjoyment of fundamental rights and freedoms." (9). Several provisions of the bill address this concern. The CNCDH shares its philosophy, although it will issue reservations on some parts of the project that appear to it to be able to be improved in the sense of a better guarantee of fundamental rights and freedoms.
3. In addition, on 9 July 2014, the Government initiated the accelerated procedure on the above-mentioned bill. Thus, the CNCDH can only once again reiterate its firm opposition to the implementation of this procedure in such a sensitive matter for rights and freedoms as the fight against terrorism (10). Indeed, the accelerated procedure does not allow a normal functioning of Parliament, as long as it significantly restricts the time for reflection and maturation required for democratic debate, and night by ricochet to the quality of the law (11). It is certainly of interest in exceptional circumstances justifying the adoption of a law in emergency, but many texts whose urgency is not proven and relating to subjects relating to fundamental rights and freedoms are adopted according to this procedure (12). In this connection, it should be noted that this bill was drafted in the context of the recent Nemmouche case and less than two years after a Security and Counter-Terrorism Act No. 2012-1432 of 21 December 2012. An emergency that amazes all the more since the day after the Merah case, which occurred in March 2012, it quickly appeared that some young people, acquired from the ideas of radical Islamism, left France to train abroad in the handling of weapons with the plan to return to commit offences in French territory. It would therefore have taken almost two years for the Government to realize the urgency of a reform that could have taken place within the framework of that of December 2012, several of which already dealt with this issue (13). The CNCDH can only deplore this proliferation of legislative texts, which are more relevant to the political opportunity than to the thoughtful legislative work, and rendering the law imprecise, even indecisive and contradictory, for law professionals and a fortiori for the simple citizen (14). More specifically with regard to recent legislation on terrorism, the most authorised doctrine has noted its editorial weaknesses, sources of ambiguity and redundancy (15). In these circumstances, the CNCDH recalls the importance of a thoughtful, coherent, stable and legible criminal policy, whose quality does not measure its degree of reactivity to the various facts or circumstances of the moment (16). The stacking of reforms in the security and criminal fields (17) unfortunately reveals the extreme segmentation of the subjects treated and, too often, a lack of overall reflection (18).
4. The CNCDH notes, once again, that the development of bills at a frustrating pace does not allow a complete and rigorous assessment of the law in force, so that an assessment of the relevance and effectiveness of existing measures can be made (19). Since the constitutional review of 2008, these texts must be accompanied by a so-called impact study "defined[ant] the objectives pursued by the bill, identifying [ant] the possible options outside the intervention of new rules of law and exposing the grounds for the use of new legislation" (20). CNCDH emphasizes the importance it attaches to this assessment by addressing the poverty of the impact study accompanying the bill strengthening the provisions on the fight against terrorism. This document, which contains only few figures, never addresses the implications of the new measures on the organization and functioning of administrative and judicial courts (21). These shortcomings are likely to be explained by the fact that the drafting of the bill was led mainly by the Ministry of the Interior, like the previous reforms in this area. With regard to texts amending the Criminal Code and the Code of Criminal Procedure, and to restrict certain fundamental rights and freedoms, it would have been desirable for them to be brought by the Minister of Justice, or at least in close cooperation with him.
5. The accelerated procedure is all the more inappropriate in the present case because the consensus on the fight against terrorism undermines a high-quality debate: everything is happening as if the mere invocation of greater effectiveness in the fight against terrorism could justify the adoption, without any discussion, of measures that are offensive to freedoms (22). In the current context marked by years of security drift (23), the CNCDH must strongly reaffirm that States cannot take, in the name of the fight against terrorism, any measure deemed by them appropriate, as long as this would lead to undermine or even destroy democracy on the ground of defending it (24). This constant effort to "justify the reason for state" (25) must not make it forget that it is "in the framework of international law, as well as constitutional law, that the necessary fight against terrorism must be carried out. Otherwise, democracies would ruin the principles that make their strength" (26). The fight against terrorism does not allow everything. The greatest victory of terrorism would be to endanger the rule of law (27). In this regard, the CNCDH can only regret that a number of provisions of the draft law have the administrative police repressive measures to be surrounded by any guarantees relating to criminal proceedings in the field of the administrative police (28). It also deplores the extension of the area of derogatory procedural regimes.
6. Finally, as a result of this accelerated procedure, the CNCDH was unable to effectively carry out its advisory mission as a guardian of fundamental rights and freedoms, which entails being able to inform both assemblies in a timely manner. She was compelled to self-sustain in the emergency, even though the bill had already been deliberated on the advice of ministers and could not, at first, make comments on this text through a note by the President addressed to the Minister of the Interior, as well as to the two commissions concerned. The recommendations of this notice, adopted within a very short period, relate to:
- the ban on leaving the territory (article 1 of the bill);
- the offence of an individual terrorist enterprise (article 5 of the bill);
- the administrative blocking of access to websites inciting to commit terrorist acts or by making apology (article 9 of the bill);
- the provisions concerning the fight against the apology of terrorism and the provocation to it (article 4 of the bill);
- extension of the area of derogatory procedural regimes (articles 3, 6, 7, 12 and 13 of the bill);
- the provisions relating to the regime of security interceptions (articles 15 and 15 bis of the bill);
- the need for social prevention measures.
I. - Prohibition of the exit of the territory (article 1 of the bill)
7. Section 1 of the Bill amends the Internal Security Code. A new article L. 224-1 states: "Every French national may be banned from leaving the territory when there are serious reasons to believe that he plans:
1° Displacement abroad for participation in terrorist activities, war crimes or crimes against humanity;
2° Or travel abroad on a scene of terrorist grouping operations and under conditions likely to lead it to infringe public security upon its return to French territory."
The bill, as a result of the first reading in the National Assembly, provides that this prohibition is imposed, by written and motivated decision of the Minister of Interior, for a maximum of six months. It may be renewed by the same authority as long as the conditions are met and within two years from the original prohibition. These decisions may be contested in the context of an appeal for excess of power, accompanied, if any, by a rebuttal (Article L. 521-1 of the Administrative Justice Code), or by the way of the fundamental freedom referred to in Article L. 521-2 of the Administrative Justice Code (29). According to the latter text, the Referee Judge shall decide within 48 hours.
8. While the reasons for the ban on the release of the territory appear to be justified under Article 2-3 of Protocol No. 4 of the European Convention on Human Rights (ESCHR) (30), the CNCDH wishes to express its greatest reservations about the procedure set out in Article 1 of the Bill.
9. First, section 1 of the bill states that the ban on leaving the territory can be imposed "when there are serious reasons to believe" that a person is planning travel abroad for one of the reasons set out above. In practice, the ban on leaving the territory will be decided on the basis of notes from the intelligence services issued by the General Directorate of Internal Security (DGSI) (31), i.e., documents prepared in a non-adversarial manner, which may, in some cases, be covered by the secret defence. A recent case, the so-called Tarnac case, which was widely reported by the media, demonstrated a risk of faillibility of information from the only services dependent on the Ministry of Interior. The Council of State, in the case of a decision of the administration based on "white notes", requires the production of specific elements enabling it to decide on the merits of the decision under attack (32). However, the CNCDH can only deplore the fact that such a serious infringement of the freedom to go and come can be based on exclusively subjective assessments, even though it should, in order not to run a risk of arbitrariness, always be based on objective criteria intended to allow its control. Indeed, the limitations on freedom of movement must, for the CNCDH, be justified by the existence of "deeds or information to persuade an objective observer" that the individual in question prepares to commit one of the offences covered by the new provisions (33). It is therefore clear that the procedure set out in section 1 of the bill does not meet these minimum requirements. In the light of the above, the CNCDH recommends an improvement of this text by a clear and precise definition of objective criteria justifying the ban on the release of the territory, a measure which cannot have been based on a single form of evidence.
10. Secondly, there is a question of the effectiveness of such a measure, which takes the withdrawal and invalidation of the passport, as long as France is part of the Schengen area. In this sense, the statement of the reasons for the bill recognizes that the ban on the exit of the territory " does not allow it alone to prohibit the movement of French nationals within the Schengen area, which can be carried out without a passport or outside for destinations that require only the presentation of the only identity card". Thus, the issue of the effectiveness of the new measure necessarily leads to that of the possible withdrawal of the national identity card in addition to the withdrawal and invalidation of the passport. In this sense, the National Assembly held on first reading that the ban on the exit of the territory carries out an immediate withdrawal of the passport and national identity card against the surrender of a receipt allowing the person concerned to justify his identity (34). In this regard, the CNCDH can only recall that the fundamental freedom of going and coming includes the right to move outside French territory and that constitutes a grave breach of this freedom the withdrawal by the administrative authority of the passport and the national identity card of a person (35). There is therefore concern that devices intended to ensure the full effectiveness of the territorial ban are likely to characterize a flagrant violation of the principle of proportionality, due to the increased constraints imposed on the persons concerned. These, who will be granted a receipt, will also have great difficulty in carrying out the acts of everyday life (researching a job or housing, contracting a loan, conducting the school enrolment of children, etc.), which will undeniably pose a problem with the requirements of article 8 of the EHRC guaranteeing the right to privacy and family life. The detention of a recipient in place of a passport and national identity card is still extremely discriminating, stigmatizing, even though the ban on leaving the territory is a preventive measure. For this reason, the CNCDH recommends that the public authorities be the greatest discernment in the pronouncement of the bans on exiting the territory and a review of the situation every three months.
11. Thirdly, the seriousness of the breach of the fundamental freedom to leave the territory guaranteed by international and European texts (articles 2-2 of Protocol 4 of the EHRC and 12-2 of the International Covenant on Civil and Political Rights [36]) requires that the ban on leaving the territory be taken at the highest level and with specific procedural guarantees. For this reason, the CNCDH is of the opinion that it cannot be derogated from the principle of the contradictory provisions of article 24 of Act No. 2000-321 of 12 April 2000 on the rights of citizens in their relations with the administrations (37), nor the principle of motivation of unfavourable administrative decisions arising from articles 1 and following of Act No. 79-587 of 11 July 1979 on the motivation of administrative acts and the improvement of public relations. Limitations and derogations relating to the emergency or threats to public order shall in no way be invoked to restrict or exclude the application of these two principles. The CNCDH therefore recommends the organization of an adversarial debate before the decision-making motivated by the Minister of the Interior, the presence of a lawyer being in law with all the effective guarantees relating to the rights of the defence. In the current state of the text, after first reading in the National Assembly, it is anticipated that the measure is pronounced by written and motivated decision of the Minister of the Interior, the hearing of the person concerned, assisted by counsel or represented by an agent of his or her choice, being postponed (38). The bill has undeniably evolved since its passage to the Council of Ministers in the sense of a better recognition of procedural guarantees, which the CNCDH welcomes. However, she regrets the absence of a true conflicting debate, which involves the presence of the interested party and its counsel before the written and motivated decision of the Minister of the Interior.
II. - The offence of an individual terrorist enterprise (article 5 of the bill)
12. Section 5 of the Bill proposes to criminalize "the individual terrorist enterprise" through the creation of a new offence under section 421-2-6 of the Criminal Code (39). He enshrines the possibility of condemning sentences of up to ten years' imprisonment for those who plan to commit a terrorist act alone, thus taking note of a new threat from individuals acting alone or in "micr cells" (40).
13. CNCDH considers that the creation of new offences must strictly meet the principle of the need for criminalization (articles 5 and 8 of the Declaration of 1789) (41) in order to contain criminal inflation. She regretted that the impact study did not include any in-depth research on the relevance of the introduction into the criminal code of the new offence, rigorously assessing whether existing mechanisms did not already allow for the suppression of the behaviours referred to in section 5 of the bill.
14. The new provisions, which evoke "the prepared act", "preparation" or "the fact of preparing" the commission of an offence, suggest, at first reading, that they enshrine a new hypothesis of preparatory acts in an autonomous manner, as already exists in French criminal law (association of criminals for example) (42) and in the law of the European Union (43). For the CNCDH, this type of offence affects the principle of legality (articles 8 of the Declaration of 1789 and 7 of the EHRC) and the presumption of innocence (Article 9 of the Declaration of 1789 and 6-2 of the EHRC): by punishing a very distant behavior upstream of the feared criminal offence, the criminalization of preparatory acts necessarily relies on a moral element In this regard, it should be recalled that in French law the principle lies in the absence of repression of preparatory acts, provided that under article 121-5 of the Criminal Code, there is no punitive attempt without "beginning of execution" (44).
15. With regard to the material element of the new offence, however, it seems that a distinction can be drawn between the behaviours for which criminalization is provided. Those who consist of the action "to hold (...), to obtain or to make objects or substances of a nature to create a danger to others" involve real materiality whose connection with the terrorist project can be established. CNCDH therefore considers that these behaviours can be indicted independently. On the other hand, the action of "seeking" evokes a very unclear conduct because located too much upstream of the beginning of execution of the offence. In order to give rise to a dangerously subjective assessment, it is likely to pose considerable problems of predictability, theoretical and evidence, at the practical level. In this case, we are well confronted with acts that are not even "prepared" in the legal sense of the term, and whose relationship too teen with the planned offence excludes criminalization. That is why the CNCDH recommends the deletion of the action to "search". In addition, the four behaviours defined by new article 421-2-6 of the Criminal Code are alternatively defined (45). With respect to acts prior to the commencement of execution, in principle unrepressed, the CNCDH therefore considers that a plurality of material facts is necessary to constitute the offence. It therefore recommends that the legislator define them with extreme precision, in no case should the acts in question, under penalty of violation of the principle of legality, relate to the "preparing for the preparation of the offence".
16. In this regard, the impact study refers to paragraph 89 of the German Penal Code allowing the prosecution of isolated individuals preparing terrorist acts (46). This text, derived from the Act of 30 July 2009 to combat the preparation of serious attacks against the State (47) was the subject of extremely critical comments in Germany (48). Indeed, the incriminations introduced in paragraphs 89 et seq. of the Criminal Code already concern the "preparation of the preparation" (49), as attested by paragraph 89 a, II, No. 1 which punishes the mere fact of adopting a behaviour that could in the future prove to be terrorist (such as military training or learning the handling of certain weapons). Similarly, paragraph 89 (b), paragraph 1, reiterates the intention of contacting a terrorist organization by e-mail with a view to carrying out an attack. As for paragraph 91, it makes it punishable by making available or downloading on the Internet certain modes of employment that could be used to perpetuate an attack (e.g., bomb manufacturing plans). These behaviours are extremely close to those taken at first reading by the National Assembly, which amended Article 5 of the original project by requiring action to detain, search, acquire or manufacture objects or substances that create a danger to others to be supplemented by a second material sub-element, which may include tracking, training in the handling of weapons, the manufacture of explosive devices or in the control of sites or the control of explosive devices. With regard to what has been previously exposed, as long as one of these last behaviors is combined with the action to seek, all of the repressed acts is located at the stage of the simple " preparation of the preparation" of the offence. CNCDH maintains a violation of the principle of legality in this place, due to the lack of clarity and therefore the predictability of the conduct thus repressed. Beyond that, it shares the reservations of the German doctrine which sees in the increased criminalization of acts prior to the beginning of execution, a disturbing resurgence of the doctrine of the "criminal law of the enemy" (50): it would be a " victory of fear", the victory of a security criminal law on a classical criminal law strictly governed by the principle of legality (51).
17. With regard to the moral element, the new article 421-2-6 of the Criminal Code states that the acts described above must be "intentionally in relation to an individual company intended to seriously disturb public order by intimidation or terror." For the CNCDH, a more precise definition of the moral element of the new offence is required, the new provisions to provide that the acts performed by the isolated individual can only be explained by the will to carry out one of the offences covered by the new text (52). Otherwise, the acts incriminated would necessarily be equivocal. On the one hand, the CNCDH wishes to recall that the moral element of the terrorist offence is, in itself, a "drawing" element, a complex product of the imbrication of a will, intention and motive, sometimes based on mere presumptions of fact intended to reduce the probatory difficulties of this element (53). On the other hand, the more we go back in time to criminise it, thus moving away from the moment of the commission of the final offence, the more it becomes difficult to establish with certainty the exact reality of this element. In total, not only is the quality of the law intended by the principle of criminal legality necessarily affected by this type of criminality, but also the presumption of innocence (articles 9 of the Declaration of 1789 and 6-2 of the ECHR), which requires a certain and complete proof of guilt, is also undermined. If the new article 421-2-6 of the Criminal Code was not amended in the sense that the CNCDH proposes, the number of relaxes pronounced by the correctional courts could be important, because of the "blue of criminality" which, we have seen, would inevitably lead to a "blue in the administration of evidence".
III. - The administrative blocking of access to websites inciting to commit terrorist acts or by making apology (article 9 of the bill)
18. Section 9 of the bill provides for the administrative authority to order Internet service providers to block access to sites inciting to commit terrorist acts or by making apology. Such a mechanism has already existed in relation to child pornography since Act No. 2011-267 of 14 March 2011 on guidance and programming for the performance of internal security (54), since the Constitutional Council found no violation of Article 11 of the Declaration of 1789 on Freedom of Communication (55).
19. However, the administrative blocking of access to websites inciting to commit terrorist acts or by making apology is, for the CNCDH, likely to distort the classic distinction between administrative police and judicial police. The new text empowers the administrative authority to decide on the blockage, even though one or more offences have already been committed (56). It cannot therefore be considered that this is a purely administrative police measure intended to prevent provocation to acts of terrorism or their apology. The new provisions are undeniably within the area of the judicial police, whose direction and control are vested in the judicial authority, the only competent authority for the prosecution and punishment of offences. It is therefore infringed on the principle of separation of powers (Article 16 of the Declaration of 1789) (57). Section 9 of the bill also raises questions with regard to the requirements of section 10 of the EHRC. Although the jurisprudence of the Court of Strasbourg does not appear to be fixed in this matter (58), the CNCDH nevertheless considers the intervention of a judge necessary to order and control the blocking of a website (59), provided that this measure constitutes a serious interference in freedom of expression and communication (60). Indeed, any pre-expression restrictions on the Internet result in a heavy presumption of incompatibility with article 10 of the EHRC (61).
20. For the CNCDH, the power to block access to a website should be vested in the liberties judge, who would decide within a short period of 48 or 72 hours, on the referral of the competent prosecutor's office, especially following a report to the PHAROS platform (62). In this regard, it must be recalled that in a recent opinion on the re-foundation of the criminal investigation (63), the CNCDH recommended the strengthening of the status of the current "judge of freedoms and detention" in order to establish an authentic "judge of freedoms" which would be a specialized judicial function within the meaning of article 28-3 of the statute of the judiciary, exercised by a magistrate of the first rank appointed by decree of the President of the Republic, having a fundamental rights guaranteed. Finally, the intervention of the judge of freedoms must necessarily be subsidiary, the magistrate must be seized after the publisher or the host has been placed by the prosecutor to remove the content of the dispute (65).
21. CNCDH is well aware of the fact that blocking websites encounters many technical difficulties (possibilities of bypassing, risk of "overblocking", etc.) (66). In order to ensure that there is no disproportionate violation of the right to privacy or the right to freedom of expression, CNCDH particularly recommends that the public authorities use effective and reliable technology.
IV. - The provisions concerning the fight against the apology of terrorism and the provocation to it (article 4 of the bill)
22. The public provocation of acts of terrorism and the public apology of such acts are now repressed by the law of 29 July 1881 which regulates freedom of expression. Section 4 of the Bill provides for the inclusion of these offences in a new section 421-2-5 of the Criminal Code (67), on the grounds that it is not "abuse of freedom of expression (...) but of facts that are directly responsible for terrorist acts". In this way, it is once again a matter of deviating the application of the protective criminal procedure specific to press offences (68), in order to increase the powers of the investigators, who would be legally entitled to carry out investigative acts under the derogatory regime on terrorist offences (see infra V). The new provisions are "real exits from the criminal law of the press to contradict the principle of measure inspired by it in the name of freedom of thought, expression and opinion" (69).
23. For the CNCDH, the criminal procedure specific to press offences allows to show to the Court of Strasbourg and the European authorities that, even in the absence of decriminalization of our right of communication - decriminalisation desired by the Council of Europe (70) - the French law in this matter is in accordance with the letter and spirit of article 10 of the CESDH (71). Indeed, the CNCDH is in principle opposed to the introduction in the penal code of offences relating to freedom of expression, which can only be prosecuted under the specific procedural rules defined by the law of 29 July 1881. On the other hand, "when the legislator wants to specifically criminalize certain behaviours that relate more or less distant to communication, and repress them firmly, it is preferable that he do so in the criminal code and not in the law of 1881, which loses his soul..." (72).
24. In order to implement these guiding principles, it must be noted that the new section 421-2-5 of the Penal Code does not distinguish between provocation followed by unfulfilled effect and provocation, as has been done to date in articles 23 and 24 of the Act of 29 July 1881. As a result, the new text encompasses these two types of provocation (73). In this connection, it must be specified that section 4 of the bill removes paragraph 6 of section 24 of the Act of 29 July 1881 on unattended provocation of terrorism, without altering at the same time section 23 of that Act criminalizing the provocation of effect in the same matter. It is therefore likely to be penalized both on the basis of the criminal code and the law of 29 July 1881, in the event of provocation to terrorist crimes or offences. CNCDH recommends deleting this duplicate and harmonizing the above-mentioned texts.
25. Moreover, and above all, the distinction between provocation followed by effect (Article 23 of the Act of 29 July 1881) and unfulfilled provocation of effect (Article 24 of the Act of 29 July 1881) has a meaning: in short, the first "specification" is a case of complicity with that advantage which the judge is exempted from the obligation to prove one of the adjudicators of section 121-7, paragraph 2 of the penal code (don). The second, she, makes punishable, by making an autonomous offence, a case of complicity that would not be due to a main offence ("not followed by effect"). In the hypothesis of a provocation followed by an effect (the commission of acts of terrorism), one leaves the field of freedom of expression to enter that of the protection of persons. The issue of the fight against terrorism becomes even more preponderant, since it is, as is the case in the new article 421-2-5 of the Criminal Code, of a "direct" provocation, materialized by writings or words explicitly specifying the acts called by provocation. On the other hand, in the case of unfulfilled provocation, the wrongdoing remains in the field of freedom of expression. In the light of the above, if the CNCDH is not opposed to the introduction in the penal code of public provocation followed by effect, it considers that the unattended public provocation must remain in the law of 29 July 1881. The same is true for the public apology of terrorism, which must continue to address specific provisions of press law.
V. - Extension of the area of derogatory procedural regimes (articles 3, 6, 7, 12 and 13 of the bill)
26. Article 6 of the Bill amends or supplements the provisions of the Code of Criminal Procedure, so that the offence of direct provocation to acts of terrorism committed in a public manner and that of the apology of these acts is subject only to some of the rules applicable to terrorism and not to the entire derogatory regime (74). In this regard, the CNCDH can only be concerned that the prosecution and punishment of these offences, governed today by the rules of criminal procedure that protect the law of 29 July 1881 and which the bill provides for their transfer into the penal code, are in the process of raising certain provisions of the derogatory regime of offences of terrorism that are particularly injurious to fundamental rights and freedoms. A violation of the principle of proportionality, guaranteed both at the constitutional and European level, is to be feared. The same is true:
- Article 3 of the Bill which adds to the list of acts of terrorism the offences defined in articles 322-6-1 (75) and 322-11-1 (76) of the Criminal Code, for the purpose of allowing the application of the derogatory regime in the prosecution, investigation and judgment of acts of terrorism defined in articles 706-16 and following of the Code of Criminal Procedure;
- Article 7 of the draft law which extends the jurisdiction of the counter-terrorism centre of Paris as long as an accused person, convicted, sought in the context of a European arrest warrant or sought in the context of an extradition procedure for acts of terrorism, is prosecuted for offences committed in detention, for offences of escape, non-compliance with the expulsion and non-compliance of the territory. It should be noted that in the first reading, the National Assembly further broadened the jurisdiction of this specialized jurisdiction, on the one hand, to the facilitative and attempted escape offences provided for in articles 434-28 to 434-37 of the Criminal Code and, on the other hand, to the offence of association of criminal offenders, provided for in section 450-1 of this Code, to prepare for the escape of a detained person, accused or convicted.
27. For CNCDH, the offences covered by the new texts are undoubtedly not sufficiently complex and serious to the point of justifying an even partial increase in the applicable procedural regime (77). The result is a flagrant violation of the principle of proportionality. The CNCDH also wishes to recall that the extension of a derogatory regime, which carries significant restrictions on fundamental rights and freedoms, cannot be decided in the precipitation inherent in an accelerated procedure and without rigorous and detailed prior assessment.
28. In addition, article 12 of the bill amends the texts of the penal code punishing infringements of the automated processing systems of personal data implemented by the State by providing for these offences an aggravating circumstance of organized tape commission. This is to broaden the powers of investigators through the implementation of the provisions relating to the derogatory regime of organized crime, with the exception of specific rules relating to custody and searches. Similarly, section 13 of the bill extends the scope of the investigation under pseudonym by generalizing it to all crimes of crime and organized crime (including terrorist offences), when committed by an electronic means of communication.
29. The CNCDH deplores the multiplication of this type of derogatory provisions demonstrating the " banalization of an exceptional right" (78). She must remember that, according to her, the more serious the offence is, the more necessary the protection of the alleged innocent is, and to reiterate her firm opposition to the maintenance of such derogatory regimes (79). They are also the cause of a breakdown of the criminal proceedings: each offence or offence type corresponds to a specific procedural regime arising from the applicability of the whole or only part of the derogatory regime (terrorism, organized crime) (80). This is the qualification at the beginning of the procedure that will determine the procedural regime. There is a place in this place for a real diversion of the common law procedure to the benefit of an exceptional procedure as long as the qualification in fine is other (81). This break-up of the criminal procedure has finally been an unfortunate consequence of rendering the criminal procedure code unreadable, due to the recurring use of the legislative referral technique, for the purpose of determining the applicable derogatory procedural rules. The accessibility and quality of the law are undermined. The work of prosecutors, examining magistrates and trial courts is made all the more difficult.
VI. - Provisions relating to the security interception regime (articles 15 and 15 bis of the bill)
30. With regard to security interceptions, section 15 of the bill amends section L. 242-6 of the Internal Security Code by increasing the retention period from 10 to 30 days. In the current state of the text, the brevity of the time limit imposes the rapid transcription of these, so that the National Commission for the Control of Security Interceptions (CNCIS) can immediately complete its control mission, confronting the content of the recordings with that of their transcription. As a result of the increase in the time frame provided for in the bill, registrations may remain 30 days without a transcript, resulting in a significant risk of deferral or even disclosure of the information. This extension of the time limit is also an unfortunate consequence of delaying CNCIS control and making it virtually ineffective. In practice, people could be listened for many hours, without being justified under the provisions of the Internal Security Code and without the CNCIS being able to promptly recommend that it be terminated. As a result, the new provisions are likely to disproportionately affect the right to privacy guaranteed in article 8 of the EHRC. CNCDH recommends the deletion of section 15 of the bill.
31. In addition, the National Assembly Law Commission adopted an amendment amending Article L. 244-2 of the Internal Security Code (see Article 15 bis of the Bill passed by the Law Commission) (82) to allow the prison administration to collect directly and by any technical means data relating to persons detained using a clandestine cell phone (83). Once again, these new provisions blur the classic distinction between administrative police and judicial police, as long as the new system in practice reveals the existence of criminal offences already committed. In this regard, it should be recalled that:
- that communicating with a person detained via a mobile phone or handing over such an object constitutes a criminal offence (article 434-35 of the Criminal Code) of which the person is an accomplice;
- that in the absence of a specific offence, a detained person in custody of a mobile phone may be prosecuted for the concealment of objects from an offence (84) or for complicity, if it is proven that he has given instructions to illegally enter the cell phone in a prison (85).
Under these conditions, it cannot be reasonably considered that the new administrative police prerogatives conferred on the prison administration have the sole purpose of "preventing" the commission of acts of terrorism (86). They are in fact intended primarily to find offences under the criminal law, to gather the evidence and to search for the perpetrators. The aim being to "repress" the use of mobile phones in penitentiary institutions, it is clear that purely administrative police measures, under the sole responsibility of the executive, are diverted for judicial police purposes, whose direction and control are vested in the judicial authority (87). For this reason, CNCDH considers that the principle of separation of powers is violated (article 16 of the Declaration of 1789) (88). Finally, it is to be feared that for the implementation of the new provisions, the prison administration uses the so-called "IMSI-catching" technology, which allows to collect the connection data of all persons holding a cell phone in a specified geographic area. For the CNCDH, the implementation of such a technical process entails a major risk of infringement of the right to privacy guaranteed in section 8 of the EHRC, as long as the connection data of persons not suspected of acts of terrorism and located within the scope of action of "IMSI-catcher" (truders, lawyers, magistrates and other judicial personnel, agents of the prison administration, etc.) With regard to the above, the CNCDH can only approve the deletion of Article 15 bis by the National Assembly on first reading.
Conclusion
32. The CNCDH regrets that the bill does not set a time limit for the Government to submit a "national plan for the prevention of acts of terrorism", even though the Stockholm programme enjoins member states of the European Union " to develop preventive mechanisms, in particular to allow the early detection of signs of radicalisation or threats, including those emanating from violent extremist movements" (89). The European Union has funded from 2005 several research missions to identify the causes of violent radicalisation and the tools to combat it (90). These studies are an essential reference for developing and strengthening the anti-violent radicalisation (91), especially in the school environment, in the "ghettoisés" neighbourhoods and in prisons where too many minors and young adults are convinced to be without future and without hope. In this regard, it should be pointed out that the causes of such radicalization reside in "an impression of discrimination (whether real or felt), social exclusion, humiliation and trauma, the rejection of the values of the society in which one lives, the absence of integration and a weak self-esteem" (92). The CNCDH recommends that minors who have committed themselves abroad to terrorist companies and who return to France are subject to special support by juvenile justice, in respect of children in danger or child offenders. It also recommends that the city ' s policy strengthen the support of young people without projects in the most difficult neighbourhoods.
Summary of key recommendations
Recommendation 1: The CNCDH recommends that the public authorities not take, on behalf of the fight against terrorism, any measure deemed appropriate by them, as long as it would lead to weakening or even undermine the rule of law on the grounds of defending it. It strongly recalls that the fight against terrorism does not allow everything and that the greatest victory of terrorism would be to endanger the rule of law.
Recommendation 2: The CNCDH recommends strict compliance with the provisions of Article 8 of Organic Law No. 2009-403 of 15 April 2009 imposing, before any amendment of the legislation, a comprehensive and rigorous assessment of the law in force, in order to assess the relevance and effectiveness of the existing measures. Such an assessment has the advantage of avoiding a stack of segmented and disparate reforms, far from a thoughtful, coherent, stable and legible criminal policy.
Recommendation No. 3: CNCDH recommends that the drafting of Article L. 224-1 of the Internal Security Code be improved by a clear and precise definition of objective criteria justifying the ban on the exit of the territory. It considers that the pronouncement of such a measure, which seriously affects the freedom to go and come, cannot be based on exclusively subjective assessments of services dependent on the Ministry of Interior.
Recommendation 4: The CNCDH recommends to the public authorities the greatest discernment in the pronouncement of the bans on exiting the territory and a review of the situation of the individual every three months. In this regard, she recalls that the removal of the passport and the identity card against the surrender of a recipient infringes, because of the increased constraints imposed on the persons concerned, the principle of proportionality, the principle of non-discrimination and the right to privacy and family life.
Recommendation 5: The CNCDH recommends, always with regard to the ban on the release of the territory, the organization of a conflicting debate before the written and motivated decision of the Minister of the Interior, the presence of a lawyer being in law with all the effective guarantees relating to the rights of the defence.
Recommendation No. 6: CNCDH recommends that the legislator be extremely vigilant about the exceptional nature of the repression of just preparatory acts. Punishing a very distant behavior upstream of the feared criminal offence is likely to affect the principle of legality and the presumption of innocence.
Recommendation No. 7: The CNCDH recommends, with regard to the material element of the offence of an individual terrorist enterprise, to remove in the new article 421-2-6 of the Criminal Code all provisions referring to too much behavior upstream of the beginning of execution of the offence, such as the action of "seeking". The CNCDH further recommends that the moral element of this new offence be clearly defined.
Recommendation No. 8: The CNCDH recommends that the power to block access to a website be vested in the judge of freedoms and detention, who would decide within a short period of 48 or 72 hours, on the referral of the competent prosecutor. In addition, the intervention of the judge of freedoms must necessarily be subsidiary, the magistrate must be seized after the publisher or the host has been placed by the prosecutor to remove the content of the dispute.
Recommendation No. 9: The CNCDH recommends not to include in the penal code public provocation to acts of non-implemented terrorism, as well as the public apology of terrorism. These two criminal acts, which fall within the scope of freedom of expression, must continue to be governed by the specific provisions of press law.
Recommendation No. 10: The CNCDH recommends the simplification of Book IV of the Code of Criminal Procedure, recalling its firm opposition to the maintenance of derogatory regimes to individual freedoms.
Recommendation No. 11: The CNCDH recommends the deletion of section 15 of the bill by increasing the retention period for security interceptions from 10 to 30 days.
Recommendation 12: CNCDH recommends that it not allow the prison administration to collect, directly and through any technical means, data relating to persons detained using a clandestine cell phone. It therefore approves the deletion of section 15 bis of the bill by the National Assembly on first reading.
Recommendation No. 13: The CNCDH recommends that minors, who have committed themselves abroad to terrorist companies and who subsequently return to France, receive special support from the juvenile justice system, in respect of children in danger or child offenders. It also recommends that the city ' s policy strengthen the support of young people without projects in the most difficult neighbourhoods.
(Result of the vote in the Plenary Assembly: unanimous.)
