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In Dialogue with France, Committee on Enforced Disappearances Asks about Safeguards for People in Custody or Facing Extradition

20 September 2021

The Committee on Enforced Disappearances this afternoon held its consideration of a report submitted by France containing additional information under article 29 (4) of the Convention for the Protection of All Persons from Enforced Disappearance.

Committee Experts asked the delegation about topics including domestic law definitions of enforced disappearances, also asking for details about the conditions under which people could be held in detention and which rights they had as regards communication with their families and with society. They further inquired about the rules around ensuring that asylum seekers were not returned to countries where they might face dangers such as enforced disappearance, among other topics examined.

Introducing the report, members of the delegation explained that French legislation criminalized enforced disappearance, as required by the Convention. French courts could prosecute and judge acts of enforced disappearance if the victim or the perpetrator was of French nationality, but also if the perpetrator was in France. France paid particular attention to the victims of enforced disappearance, allowing persons other than the missing person to be considered as victims, such as the missing person's relatives or any other person if they could show that they had personally suffered material or moral damage caused by the crime.

The delegation noted that a person in detention or custody could notify their relatives, employer or legal adviser, adding that access to a lawyer had been considerably extended compared to the previous legislation. On the subject of adoptions, review was possible when the adoption judgment was issued on the basis of falsified documents, which was particularly relevant in the case of adoptions originating in an enforced disappearance.

In concluding remarks, Benoît Chamouard, Deputy Director of Human Rights, Legal Affairs Directorate, Ministry of Europe and Foreign Affairs and head of delegation, thanked the Committee for the fruitful exchange of ideas, and noted that France did not have any cases of enforced disappearance on its territory, as the procedures underway concerned cases abroad.

The delegation of France was comprised of representatives from the Ministry of Europe and Foreign Affairs; the Ministry of Justice; the Ministry of Solidarity and Health; the Ministry of the Interior; the Ministries of the Armed Forces; and the Permanent Mission of France to the United Nations Office at Geneva.

The Committee will issue its concluding observations on the report of France at the end of its twenty-first session, which concludes on 24 September. All documents relating to the Committee's work, including reports submitted by States parties, can be found on the session's webpage. The webcast of the meetings can be accessed at http://webtv.un.org/.

The Committee will next meet in public at 5 p.m. on Friday, 24 September, to close its twenty-first session.

Report

The Committee has before it the report of France (CED/C/FRA/AI/1).

Presentation of the Report

BENOÎT CHAMOUARD, Deputy Director of Human Rights, Legal Affairs Directorate, Ministry of Europe and Foreign Affairs and head of delegation, introducing the report, noted the paramount importance of the Convention to France. In France, prosecutions were centralized within the National Anti-Terrorist Prosecutor's Office, which had a division dedicated to crimes against humanity and enforced disappearances. France could investigate and punish acts that took place outside its borders.

JULIEN RETAILLEAU, Deputy Director of Specialized Criminal Justice, Directorate of criminal affairs and pardons of the Ministry of Justice said that since the transposition of the Convention into domestic law, France had a solid legal arsenal to prevent enforced disappearances and to help the victims of such disappearances. French legislation specifically criminalized the offence of enforced disappearance as an ordinary crime under the Criminal Code in a text which contained all the elements of the crime of enforced disappearance required by the Convention. The statute of limitations for prosecution was set at 30 years from the date on which the victim reappeared or their death was established. Enforced disappearance constituting a crime against humanity was not subject to any statute of limitations and was punishable by life imprisonment. French courts could prosecute and judge acts of enforced disappearance if the victim or the perpetrator was of French nationality, but also if the perpetrator was in France. The National Anti-Terrorism Prosecutor's Office, which began operating in July 2019, dealt with or followed up all enforced disappearance proceedings, of which there had been 23. 

The French system for preventing enforced disappearances had many safeguards, including the use of legitimate coercive measures by the authorities. In the case of police custody, the person had the right to notify a relative, his or her employer, and the consular authorities if he or she was a foreign national. They also had the right to be assisted by a lawyer under conditions of confidentiality. In the case of pre-trial detention, the person could receive visits or telephone a third party. In addition, all prisons had to maintain a register of detainees, which made it possible to keep track of the person's release.

France paid particular attention to the victims of enforced disappearance and ensured their right to compensation, as well as that of their families. It also took into account the specific problem of adoptions resulting from enforced disappearances. French law allowed persons other than the missing person to be considered as victims, such as the missing person's relatives or any other person if they could show that they had personally suffered damage caused by the crime, and the damage could be material or moral. On the question of adoptions, there were no statistics to quantify the number of adoptions in France originating in an enforced disappearance. France did not consider it appropriate to create a specific remedy against an adoption judgment originating in an enforced disappearance, since the current remedies could be applied to such situations.

GAËLLE DUMONT, Head of the Aliens Litigation Office at the Ministry of the Interior provided clarifications following the Committee's findings on communication No. 3/2019 E.L.A. v. France, in which it concluded that there had been a violation of article 16 of the Convention in the case of the applicant's return to Sri Lanka.

French law guaranteed that a foreign national who was subject to an obligation to leave the territory had access to a suspensive appeal against the decision determining the country of destination, she explained. When examining that appeal, the administrative judge ensured compliance with the code, which prohibited the removal of a foreigner to a country if it was established that his or her life or freedom was threatened or that he or she would be exposed to treatment contrary to the provisions of article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the prohibition of torture. That protection was broad enough to include a risk of enforced disappearance alleged by a foreign national, she said.

Questions by the Committee Experts

MOHAMMED AYAT, Committee Vice Chair and Country Co-Rapporteur, noted the progress made by France since 2013, when the additional information had been requested. Turning to the harmonization of domestic law with the Convention, he said the definition of the crime of enforced disappearance did not correspond exactly to the definition presented in article 2 of the Convention, as it required that the deprivation of liberty took place in "conditions which place the person outside the protection of the law".

On the issue of transparency in the integrity of investigations into enforced disappearances, Mr. Ayat noted the important safeguards in criminal procedure and investigation to ensure the impartiality of the investigation. However, he noted that the legislation did not explicitly prohibit law enforcement and security forces whose members were suspected of involvement in an enforced disappearance from participating in an investigation of that crime. Mr. Ayat also asked for more information on new forms of enforced disappearance in the context of immigration and trafficking in persons.

JUAN JOSÉ LOPEZ ORTEGA, Committee Member and Country Co-Rapporteur, noted that the principle of non-refoulement was one of the core components of the Convention, expressing surprise that France had not thought it necessary to include a specific prohibition on refoulement in the case of a risk of enforced disappearance. An appeal against an extradition request should have suspensive effect, according to the Committee, but that suspensive effect was not automatic in French legislation. Was France considering a reform that would make it possible to incorporate the standards of the Convention in that area? He also asked for more information on the method of risk assessment in the country of destination in cases of extradition and refoulement.

Replies by the Delegation

In response to questions regarding the definition of enforced disappearance, the delegation underscored that the legislation did not aim to deviate from the Convention and that there was no risk of distortion in interpretation. Moreover, of the 23 procedures in progress, none of them had given rise to difficulties of interpretation.

The delegation noted that the crime of enforced disappearance was not subject to any statute of limitations. Recent jurisprudence had recalled the principle that the statute of limitations for continuing offenses only ceased when the disappeared person was found, or when his or her death was established.

On the principle of non-refoulement, although France did not specify it in its legislations, it was envisaged in other European laws, which France complied with. An appeal automatically suspended the removal order, she said. The appeal must be distinguished from the asylum procedure itself. With regard to the examination of the risks of enforced disappearance in the event of extradition, the administrative judge examined the elements according to the provisions of the European Court of Human Rights.

On the jurisdiction of military courts, the delegation explained that in times of peace, there was no military jurisdiction in France. In times of major crisis, such as a state of war, the penal code provided for the re-establishment of military jurisdictions.

France made ongoing efforts to ensure that measures providing rights and guarantees to suspects were provided when exercising restraint measures, the delegation said. A person in detention or custody could notify their relatives, employer or legal adviser. Access to a lawyer had been considerably extended compared to the previous legislation.

Follow-up Questions by the Committee Experts

MOHAMMED AYAT, Committee Vice Chair and Country Co-Rapporteur, asked for further information about statistics.

JUAN JOSÉ LOPEZ ORTEGA, Committee Member and Country Co-Rapporteur, asked for more details on the question of communication between persons deprived of their liberty and their relatives, especially in cases of police custody. Could the detainee use the telephone? What were the restrictions in investigations for terrorist acts?

With regard to the right to reparation, he recalled the Committee's jurisprudence, which called for it to be integral. Could the delegation provide information on reparation policies and the nature of reparations granted?

On the topic of current French legislation concerning irregular adoption procedures, he invited the delegation to reflect on the relevance of adapting its legislation to the Convention in this respect.

Follow-up Replies by the Delegation

In response to questions about adoption, the delegation said revocation was only possible for simple adoptions, not full adoptions as in the case of international adoptions. Review was also possible when the adoption judgment was issued on the basis of falsified documents, which was particularly relevant in the case of adoptions originating in an enforced disappearance. The purpose of the legislation was also to prevent an adoption from being unjustifiably called into question. A draft bill was currently being examined which aimed to put an end to so-called "individual" international adoptions and to strengthen the control of authorized adoption bodies in order to prevent possible illicit practices.

Concluding Remarks

BENOÎT CHAMOUARD, Deputy Director of Human Rights, Legal Affairs Directorate, Ministry of Europe and Foreign Affairs and head of delegation, thanked the Committee for the fruitful exchange of ideas. They pointed out that although not everything was written black and white, they had many provisions to ensure that French legislation was in accordance with the Convention. France did not have any cases of enforced disappearance on its territory, as the procedures underway concerned cases abroad, he said. The delegation would provide the Committee within 24 hours with information about those ongoing investigations. The delegation confirmed their intention to continue to tackle the cases of enforced disappearances, and promote the ideas behind the Convention.

The Committee Experts thanked the French delegation, expressing gratitude to France for accepting the challenge of a virtual dialogue. The Committee aimed to help its State parties, working together to eradicate and prevent enforced disappearances.

Link: https://www.ungeneva.org/en/news-media/meeting-summary/2021/09/disparitions-forcees-de-nouvelles-dispositions-du-droit-francais