By Maître Eolas
I have been receiving a lot of email queries and other comments on the Coupat case, and more generally about the instances of sabotage on high-speed train lines that have been attributed to a far-left group and branded as terrorism.
What follows are just a few basic insights that I can provide as a legal professional. I have no access to any of the case evidence, and I will refrain from expressing an opinion on the responsibility of the persons arrested, although it is a bit surprising that some of them have been released while others are still in custody. But after all, the acts of sabotage reported did not require any elaborate infrastructure, so it is possible that only a few members were involved. Only time will tell.
Before discussing what has happened to Julien Coupat, a few words are in order about the legal background to the investigation.
The Legal Background: Counter-Terrorist Legislation
France’s Code of Criminal Procedure (Code de Procédure Pénale—CPP) sets forth the basic rules governing criminal investigations. Over the years, however, successive reforms have added on a long list of rules marking a departure from general legal principles. Needless to say, none of these waivers are designed for the benefit of suspects; the rationale behind them is invariably our security—the ultimate alibi along with the protection of children (i.e. the same children for whom figures in the French government currently advocate incarceration as of the age of 12).
For example, the CPP now contains specific provisions for the following:
► Acts of terrorism (Art. 706-16 to 706-25-1).
► Drug trafficking (Art.706-26 to 706-33).
► Human trafficking1 (Art.706-34 to 706-40).
► Sexual offenses (Art. 706-47 to 706-53-12).
► Organized criminal activity (Art. 706-73 to 706-106).
In addition, a number of waivers apply to offenses committed by legal entities, adults under legal protection, the demented; to offenses related to health, economic and financial issues; and to marine pollution. You can readily imagine that the tears in the eyes of lawyers and judges when they hear about further reform of the CPP are not exactly a sign of joy or profound gratitude.
In the case at hand, the acts of sabotage committed on high-speed train lines have been classified as acts of terrorism.
This is quite surprising, considering that the word terrorism ordinarily calls to mind bombs in public transportation facilities, planes blown up, or at least sticks of dynamite concealed in a toilet tank. In comparison, damaging a catenary (or railroad overhead line) seems fairly small-time. Although such acts slow down rail traffic, the are unlikely to kill anyone.
Just how does the law define an act of terrorism?
In French law, there is no separate criminal offense referred to by the term terrorism. The acts of terrorism listed in the code2 are defined as violations of other existing laws that are deemed to have been committed “intentionally in connection with an individual or collective undertaking aimed at seriously disturbing the peace through intimidation or terror.”
This category further includes a number of acts classified as separate offenses, e.g. disseminating substances likely to endanger the health of persons, animals or the natural environment in connection with a terrorist undertaking; criminal conspiracy;3 funding an organization engaged in terrorist activity;4 and the inability for an individual who has habitual relations with persons involved in terrorist activity to justify his or her level of spending.5 These are in fact pre-existing criminal charges that have been either adapted or associated with stiffer penalties. (The last item mentioned is modeled on the law against procuring).
The question is what the real purpose of this new legislation is.
To start with, all the offenses covered now carry more severe penalties (except for criminal conspiracy, which was already punishable by up to a maximum 10-year sentence). For example, the standard 5-year sentence for willful destruction of property by two or more parties has been raised to 7 years when the offense is deemed to be related to terrorism.
In addition, these offenses now come within the jurisdiction of the Paris Large Claims Court (Tribunal de Grande Instance de Paris), which proceeds in competition with the prosecutor’s office in the area in which the offenses took place. But that doesn’t mean that there will be two parallel investigations, since the code provides for transfer of such cases to Paris. Why? Because the judges and lawyers in provincial France are considered too mediocre; because the Paris prosecutor’s office possesses a special department, Section C1, with examining magistrates whose special focus is terrorism, and who are well acquainted with the various networks, how they think and operate. It was in that department up on the top floor [of the Palais de Justice] in the Saint-Eloi gallery that the famous counter-terrorist Judge Bruguière had his office for more than 20 years. Last of all, those accused of terrorist crimes are tried by a special Court of Assizes (Cour d’Assises) composed of 7 professional magistrates and no jury to avoid pressure and retaliation by terrorist organizations against citizens called for jury duty.
Special police units are involved at the investigation stage (e.g. the Direction Nationale Anti-Terroriste—DNAT).
But the most significant point is that since the law is supposedly there to protect us ordinary citizens, the rights of the defense have been basically pushed aside. Suspects may be kept in custody for up to 96 hours, or even 144 hours (that’s right—6 days) in the event of an imminent threat (although one wonders whether a non-imminent threat is still really a threat), and they have to wait 72 hours before they can communicate with their attorneys. As everyone knows, depriving suspects of their legal rights is the most effective way of combating terrorism—next to locking them up in a military prison on a small portion of an occupied island, of course.
It should be stressed that if the authorities decide, after holding you for 6 days, that you have no connection with terrorism, you aren’t entitled to the slightest apology.
Returning now to our anarcho-saboteurs, they have been charged with property damage and destruction committed by two or more parties in connection with a terrorist undertaking, since they are deemed to have acted intentionally in connection with an individual or collective undertaking (or, to be more precise, a collectivist undertaking) aimed at seriously disturbing the peace through intimidation or terror, and of criminal conspiracy in connection with a terrorist undertaking.6 That means that they are looking at a prison sentence of up to 10 years.
Supporters of the persons arrested and a few legal professionals have challenged the validity of applying the extraordinary counter-terrorism procedure to this case. Legally speaking, if this procedure were ultimately judged inapplicable due to lack of evidence of any terrorist undertaking (e.g. on the grounds that blocking high-speed trains does not constitute a serious disturbance of the peace), the charges would be amended to lesser charges, but the legal proceedings would nonetheless be maintained, even with custody lasting longer than the maximum period allowed in the case of such offenses.
Trouble for Coupat
According to an article in Lexpress.fr, Julien Coupat, described as the anarchists’ leader (There is something wrong with this picture? Can you guess what it is?) was to remain in custody, even though the pre-trial custodial judge (Juge des Libertés et de la Détention—JLD) ruled that he should be released.
On Friday, the custodial judge ordered his release in response to a petition filed by his attorney, Irène Terrel, after Julien Coupat was questioned on December 12th by the examining magistrate appointed to investigate the case.
This is a standard situation. The examining magistrate questions the suspect, and once the interrogation is over, the defense attorney immediately requests his or her release, because now that the magistrate has had the opportunity to question the person, one of the justifications for keeping the person in custody (to prevent collusion with other perpetrators or accomplices) no longer exists. The examining magistrate may decide on his or her own to release the accused, or the defense attorney may make such a request. If the release is requested, whether by the attorney or directly by the accused at the court clerk’s office in the prison, the examining magistrate must immediately submit the request to the public prosecutor’s office for an opinion, and then either release the accused or, if he or she is opposed to granting the request, transfers the request to the custodial judge, accompanied by his or her opinion, no later than 5 days after submitting it to the prosecutor’s office. Without saying it in so many words, the article in Lexpress.fr suggests that the examining magistrate was opposed to releasing Coupat, since the custodial judge was the one to issue a ruling, and that the prosecutor’s office in turn blocked his release using a special proceeding that effectively countered the custodial judge’s order.
The custodial judge has three working days to issue a well-reasoned ruling that is open to subsequent appeal, either by the accused if the request is turned down, or by the prosecutor’s office if the judge has ruled in favor of the person’s release. And however unbelievable it may sound, there is also nothing to prevent the prosecutor’s office from appealing a denial of release for a person charged with a crime or misdemeanor. It’s been known to happen.
So the custodial judge had until Monday to make up his mind, but he didn’t wait that long. On Friday, he issued an order for Coupat’s release. The prosecutor’s office begged to differ, since the accused was not a dignitary from some dictatorship on friendly terms with France (although some people might call that a redundant expression), but just an ordinary French citizen (an anarchist, yes, but still a citizen).
As a result, the 34-year-old young man was not released, because the prosecutor’s office opposed the judge’s ruling with a summary proceeding (référé-détention) to ensure that he was kept in custody. According to one of those sources, this appeal is to be reviewed on Tuesday by the Examining Chamber of the Paris Court of Appeals (Chambre de l’Instruction de la Cour d’Appel de Paris).
You’re probably wondering what on Earth a référé-détention is.
In 1996, in one of those rare moments in which the [right-wing] majority in parliament realizes how important the rights of the defense are (following the Botton Affair), a summary proceeding for obtaining the rapid release of an accused person was introduced.7 When a custodial judge has a suspect placed in custody, that person or his or her attorney can immediately appeal the decision and request that the judge presiding over the Examining Chamber examine the appeal within three days’ time. The custodial judge may then either release the person or remand the case to the Examining Chamber under the ordinary procedure for examining appeals. To the best of my knowledge, this is the only instance in which an appeal may be filed immediately to the judge who has just issued a ruling (under Article 187-1 of the Code of Criminal Procedure). And I can guarantee you that doing so creates quite an atmosphere.
Then, in 2002, in one of those dismal moments that invariably follow a presidential campaign focused on crime, the same parliamentary majority moved in the opposite direction, passing the référé-détention law. The scenario they had in mind was that of a custodial judge who releases a suspect in opposition to the position of the prosecutor’s office. The custodial judge must inform the prosecutor’s office, which then has four hours to appeal the judge’s decision and can demand that its appeal be examined immediately. It would have made sense to have the judge presiding over the Examining Chamber examine such requests to maintain suspects in custody, since he or she was already responsible for examining requests for their release. As it turns out, the judge presiding over the Court of Appeals was entrusted with this task. Although I personally am not one for malicious sniping, some people might point out that the judge presiding over the Court of Appeals is high enough up on the judicial ladder so that he or she has little chance of getting a promotion without formal, cabinet-level approval. That tends to make such figures highly sensitive to the political implications of their rulings. Once again, I repeat that I’m not one for malicious sniping. Let’s just say that this reflects a lack of consistency in the law.
The judge has until the second working day following the request, as specified in Articles 148-1-1 and 187-3 of the Code of Criminal Procedure.
Returning now to our friend who doesn’t appreciate the market economy or railroad catenaries (although there is some doubt as to this last point), the ruling in favor of his release has been rendered ineffective by the référé-détention summary proceeding, which must be examined no later than Tuesday. Quite understandably, this enraged his attorney. She seemed to be beside herself, unless her comments were misunderstood by the journalist reporting them.
“He should be free at this time,” stated Coupat’s attorney, denouncing an “exceptional procedure that they have no business applying…. It just isn’t right for a référé-détention to obstruct the whole process. Julien Coupat can offer the necessary guarantees,” she added. “A référé-détention right before Christmas is truly appalling,” said Ms. Terrel.
A summary proceeding to ensure that a suspect is kept in custody is every bit as exceptional as a summary proceeding to obtain a suspect’s release. However, it’s an entirely legal form of review available to the prosecutor’s office. Of course, it’s extremely frustrating for a defense attorney to receive a fax entitled “Release order” and joyfully shout “Yay!”, only to discover on one of the next pages that a référé-détention has been instituted. But while that’s a hard one to swallow, it happens to be legal. It’s also understandable that the summary proceeding puts everything on hold, since that’s its basic purpose. And finally, there’s no law barring such proceedings on the night before Christmas or thereabouts.
Those, then, are the legal insights I can offer. Once again, I must emphasize that I am not expressing on opinion on the substance of the case, and I would urge you to show the same restraint in any comments you may add. The investigation is under way, and very few specifics are known to the public. So I have no desire to decide between the people on my right raving about terrorism, and those on my left raging at a setup targeting harmless idealists who believe that opening a grocery store in the Limousin countryside is a first step in the struggle against the market economy. In any case, that was not what motivated me to write this paper.
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