1/ For the second periodic report submitted by the Government of France, see CCPR/C/46/Add.2; for its consideration by the Committee, see CCP/C/SR.800 to SR.803 and the Official Records of the General Assembly, Forty-third session, Supplement No. 40 (A/43/40), paragraphs 357-412.
2/ The information provided by France in accordance with the guidelines on the first part of the reports of States parties is contained in core document HRI/CORE/1/Add.17/Rev.1.
Paragraphs
Article 1: 1 - 17
Article 2: 18 - 37
Article 3: 38 - 67
Article 4: 68 - 82
Article 5: 83 - 85
Article 6: 86 - 90
Article 7: 91 - 94
Article 8: 95 - 99
Article 9: 100 - 137
Article 10: 138 - 177
Article 11: 178
Article 12: 179 - 191
Article 13: 192 - 199
Article 14: 200 - 258
Article 15: 259 - 260
Article 16: 261
Article 17: 262 - 278
Article 18: 279 - 292
Article 19: 293 - 308
Article 20: 309 - 319
Article 21: 320 - 323
Article 22: 324 - 338
Article 23: 339 - 360
Article 24: 361 - 382
Article 25: 383 - 392
Article 26: 393
Article 27: 394
Paragraph 1
1. France is committed to the principle of the self-determination of peoples, as set forth in the preamble and article 1 of the Constitution of 4 October 1958, and, in observance of this principle, article 53, paragraph 3, of the Constitution provides that "No cession, exchange, or adjunction of territory shall be valid without the consent of the population concerned".
2. Associated with the right of peoples to self-determination is their right freely to determine their political status and to promote their development. France has recognized this right to development and, in this connection, supported the Declaration adopted by the United Nations General Assembly in resolution 41/128 of 4 December 1986, to the preparation of which it made a significant contribution.
Paragraph 2
3. France recognizes the right of peoples freely to dispose of their natural wealth and resources in conformity with international law.
Paragraph 3
4. Article 74 of the Constitution states that the status of the overseas territories shall be determined by constitutional enactments defining, in particular, the powers of their own institutions; changes to their status can be made in the same way, after consultation of the territorial assembly concerned. The territorial assemblies must also be consulted on any bill concerning the individual organization of the overseas territories. Thus, the following former overseas territories of Africa have acceded to independence, having expressed their wish to do so: (Guinea in 1958; other West and Central African States in 1960; the Comoros in 1974 and Djibouti in 1977). The former departments of Algeria did the same in 1962. The former protectorates, mandated territories and trust territories, as well as the former condominium of the New Hebrides, now the State of Vanuatu (since 1980), have also acceded to independence.
5. Consequently, the French Republic currently comprises, in addition to its European territories, four overseas departments (Guadeloupe, Guiana, Martinique, Réunion), four overseas territories (New Caledonia, French Polynesia, French southern and Antarctic Territories, Wallis and Futuna) and two communities sui generis (Mayotte and St. Pierre and Miquelon). The Constitution stipulates that territorial entities shall be free to govern themselves through elected councils and under the conditions laid down by law. The Government Delegate to these entities is responsible for the national interests, administrative supervision and law enforcement (art. 72).
6. The Constitution stipulates that the overseas departments are represented in Parliament, in proportion to their population, by 15 deputies and 8 senators. Subject to certain adjustments dictated by their special situation and provided for in article 73 of the Constitution, the four overseas departments have been administered, since the Act of 19 March 1946, under the same conditions as departments in metropolitan France. They thus follow the general rules for the organization of local communities established, in particular, by the 1982 and 1983 decentralization acts.
7. However, the overseas departments are unusual in that a single territory includes both a region and a department, administered respectively by a Regional Council and a General Council, both of which are elected by universal suffrage. As in the departments of metropolitan France, a prefect is a Government representative responsible for national interests, administrative supervision and law enforcement, in accordance with article 72 of the Constitution.
8. The overseas territories of the French Republic are governed by special rules which take account of their special interests in the context of the overall interests of the Republic, of the local conditions that obtain in communities which are far from the mainland and highly individualistic and also of the unusual features of their legal systems.
(a) French Polynesia
9. The status of the territory of French Polynesia was established by the Act of 6 September 1984, which set up a regime providing for wide-ranging autonomy characterized, on the one hand, by the existence of a territorial executive consisting of a president of Government and of ministers and appointed by the Territorial Assembly and, on the other, by the transfer to the territory of many powers, with those powers to be retained by the central Government being exhaustively enumerated under the regime. The acts of the territorial authorities are directly enforceable.
10. The status of French Polynesia has been modified since that time, also at the request of the territorial authorities, by the Act of 12 July 1990 and the Organization Act of 20 February 1995, which describe the functions of various territorial institutions and establish a distribution of powers more favourable to the territory.
(b) New Caledonia
11. The regime for New Caledonia was established by the Act of 9 November 1988, which includes provisions on the status of the territory in preparation for the referendum on the independence of New Caledonia, to be held in 1998. Through reorganization of the government authorities and, in particular, decentralization of the provinces, this regime, which was adopted by referendum in 1988, will establish the conditions under which the people of New Caledonia will be asked to vote in 1998, through a self-determination referendum, on whether the territory will remain part of the Republic or become independent. A monitoring committee holds regular discussions with the representatives of the territory concerning problems faced, or progress desired, by the territory.
12. The 1988 Act also calls for the creation of three provinces with general jurisdiction in all matters except those which the law places under State or territorial control. Each province elects an assembly and has its own budget. The three provincial assemblies meet as the Territorial Congress, which is headed by the High Commissioner of the Republic. The 1988 referendum was amended by the Organization Act of 20 February 1995 at the request of the territorial authorities in order to strengthen provincial competence in some areas.
(c) Wallis and Futuna
13. The regime for Wallis and Futuna was established by the Act of 29 July 1961. The Government of the Republic is represented there by a senior administrator. After consulting the Territorial Council, he performs all regulatory acts necessary to implement the deliberations of the Territorial Assembly and those consistent with his mandate as head of the territory under the terms of laws, decrees and regulations. The customary authorities are members of the Territorial Council.
(d) The French southern and Antarctic Territories
14. The French southern and Antarctic Territories have an administrative organization different from that of the other territories because they are unpopulated, except for scientific missions, and hence have no parliamentary representation of their own.
(a) Mayotte
15. The special status of Mayotte, whose people opted to remain part of the French Republic in the referendum of 8 February 1976, is laid down by the Acts of 24 December 1976 and 22 December 1979. The Government designates a representative having the rank of prefect. A General Council is elected through universal direct suffrage and is responsible for considering all matters related to the territorial unit. Legislation adopted in metropolitan France does not, as in the overseas territories, apply to the territorial unit of Mayotte unless it is explicitly stated to do so.
(b) Saint Pierre and Miquelon
16. The territory of Saint Pierre and Miquelon became an overseas department and, on 11 June 1985, a special territorial unit. Its regime is akin to that of the overseas departments, although it is adapted to the special nature of the archipelago: the deliberative assembly is the General Council, which is assisted by an advisory Economic and Social Committee, and the President of
the General Council constitutes the executive branch of the territorial unit. The representative of the central Government there exercises the same functions as in the departments.
17. These territories and territorial units are represented in Parliament by deputies (two in the case of New Caledonia and French Polynesia and one in the case of Mayotte, Wallis and Futuna and St. Pierre and Miquelon) and by senators (one per overseas territory or territorial unit). Ongoing cooperation between the State and the overseas territories makes possible the implementation of reforms which allow for the specific characteristics of the territories.
Paragraphs 1 and 2
18. The Constitution guarantees the equality of all citizens before the law without distinction as to origin, race or religion. It respects all beliefs (art. 2). The preamble to the Constitution also refers to the 1789 Declaration of the Rights of Man and of the Citizen, article 1 of which states that "Men are born and remain free and equal in rights". The 1958 preamble also refers to the preamble of the Constitution of 27 October 1946, which states that "Every human being, without distinction as to race, religion or belief, possesses inalienable and sacred rights". France also ratified the International Convention on the Elimination of All Forms of Racial Discrimination on 28 July 1971.
19. At the national level, under the 1958 Constitution, Parliament establishes the rules concerning the civil rights and fundamental safeguards granted to citizens for the exercise of public freedoms. Act No. 72-546 of 1 July 1972 on action to combat racism punishes incitement to discrimination, defamation against any person because of his origin or his membership or non-membership of any ethnic, national, racial or religious group and any affront to a person on the same grounds.
20. This Act has been supplemented by other legislative instruments, such as Act No. 75-625 of 11 July 1975, amending and supplementing a number of articles of the Penal Code, and the Acts of 22 July 1992, amending the provisions of the Penal Code. Article 225-1 of the new Penal Code makes discrimination not only against individuals, which was already prohibited under the former Code, but also against the members of bodies corporate, punishable by law. This article also broadens the definition of discrimination, which already included discrimination on grounds of race, ethnic origin, nationality, religion, gender, family situation, state of health, disability and mores, to include discrimination on grounds of political opinion or trade union membership.
21. Under article 225-2 of the Penal Code, (a) refusing to provide goods or services; (b) interfering in the normal exercise of any economic activity whatever; (c) refusing to hire, penalizing or dismissing an individual; (d) placing discriminatory conditions on provision of goods or services; and (e) placing discriminatory conditions on an offer of employment constitute discriminatory treatment.
22. Furthermore, article 432-7 of the Penal Code prohibits public officials or employees from engaging in discriminatory behaviour as described in article 225-1 by refusing to recognize any right conferred by law or by interfering in the normal exercise of any economic activity whatever.
23. It should be mentioned that the provisions of the Act of 1 July 1901 on associations allow the courts to dissolve associations whose statutes or activities are contrary to the law and, in particular, to Act No. 72-546 of 1 July 1972 concerning action to combat racism.
24. The law is endeavouring to extend existing prohibitions to new situations, particularly those arising out of technological developments. In this connection, the Act of 6 January 1978 on data processing, the keeping of records and freedom reflects the will to overcome the risks to individual freedoms inherent in the compilation and use of computerized records. This Act will be considered in greater detail in connection with article 17 (see paras. 272-275 below).
25. Lastly, two measures on specific points have been adopted recently:
(a) Act No. 83-634 of 13 July 1983 on the rights and obligations of public officials, which constitutes Title I of the new regulations governing the civil service, provides that "public officials shall have the right to freedom of expression" and that "no distinction may be made between public officials on the grounds of their political, trade union, philosophical or religious opinions, or their gender or ethnic origin". This Act restates the main principles of the regulations applicable to civil servants, as derived from the judicial practice of the Council of State (Conseil d'Etat) and reflected in the Act of 4 February 1959 containing the civil service regulations;
(b) Article 99 of Act No. 85-10 of 3 January 1985, containing various provisions of a social nature and amending article 2-1 of the Code of Criminal Procedure, has extended the right of "associations working to combat racism" to claim damages in criminal proceedings by enabling them to sue in respect of offences against the person or against property when such offences are racially motivated and are classified as simple or aggravated homicide, injury causing death, threats, assault and battery, vandalism, wilful damage to property or arson.
26. The separation of powers between the legislative and the executive leaves the latter with only residual jurisdiction in relation to public freedoms. Moreover, the governmental and non-governmental authorities responsible for law enforcement measures, i.e. the regulation of individual activities, have to observe the general principles of law and legislation and, in particular, the principle of the equality of all citizens before the law. This principle implies that persons in identical situations are treated in the same way. In its decisions, the Council of State pays careful attention to this principle.
27. Any administrative decision may be challenged before the administrative court as ultra vires. The court has the right to annul such a decision. Annulment has the absolute force of res judicata and is binding on all parties, including the administration which is responsible for the enforcement of judgements (on sanctions against violations of public freedoms, see core document (HRI/CORE/1/Add.17/Rev.1)).
28. If the administrative decision in litigation has caused injury, the victim may, in addition, impugn the responsibility of the administration, as well as that of the administrative officer who took the decision, where there has been a personal error on his part. If the officer in question has committed a criminal offence, he may also be prosecuted before a criminal court. As we have already seen (para. 22), the question of liability of an administrative officer may give rise to criminal proceedings if he has been guilty of discrimination (new Penal Code, art. 423-7).
29. These measures mean that citizens have to be properly informed of their rights and of the ways and means of securing the remedies available to them against decisions by the administration. They have to be supplemented by non-contentious procedures so that any problems that arise can, if possible, be settled without the need to go to court. This was the purpose of several reforms introduced recently.
30. If it is to be accessible to citizens, the administration must first of all allow free access to administrative documents of a non-confidential nature. The right of citizens to information is laid down in and governed by Act No. 78-753 of 17 July 1978, which provides for various measures to improve relations between the authorities and the public and was amended and supplemented by Act No. 79-587 of 11 July 1979. Lastly, the administration must inform citizens of the remedies available to them to challenge its decisions and the time limits by which such challenges must be made. Decree No. 83-1025 of 18 November 1983 concerning relations between administration and users lays down the rules which the administration has to follow in this connection.
31. In addition to this reform of the law, the French Government has taken various measures to improve relations between the authorities and the public. A public information service development programme based, inter alia, on the Inter-Ministerial Administration Information Centres (Centres interministériels de renseignements administratifs) (CIRA) and the "Government at your service" centres ("administration à votre service") (AVS), has been set up.
32. There are now eight CIRAs (one in Paris and seven in the provinces). Their task, as laid down by Decree No. 59-153 of 7 January 1959, is to provide the public with information by telephone on all administrative matters and to improve relations between the authorities and the public.
33. The AVS system arises out of a desire to provide the public, at the local level, with a central reception point which provides information and advice and which can serve as a link between the various administrative services. The AVS operation entails the establishment of at least one reception point per department, under the responsibility of the prefect. It promotes personalized information for citizens, coordination of services and dialogue at the local level with users of public services.
34. All these measures come as a response to the requirements of a modern democracy, where new approaches must be introduced and encouraged so as to change the thinking and methods according to which relations between authorities and users must be built up without in any way reducing the control of the courts over the authorities - indeed, quite the contrary.
35. If a violation of the rights and freedoms recognized under article 2 of the Covenant is committed by a private individual, the victim may institute proceedings before the criminal courts, where there has been an offence, or before the civil courts, where there has been negligence.
36. Since 2 October 1981, it has been possible for any person to submit a petition to the European Commission on Human Rights if he believes himself to be the victim of a violation by France of the rights recognized in the European Convention on Human Rights of 4 November 1950. If the petition is admissible, the Commission seeks to promote a settlement out of court between the plaintiff and the State. If the Commission does not achieve such a settlement, it prepares a report which may be transmitted to the European Court of Human Rights. On completion of judicial proceedings, the Court hands down a judgement which is binding on the member States.
37. Lastly, France acceded on 3 February 1984 to the Optional Protocol to the International Covenant on Civil and Political Rights, which provides persons who consider that they have been victims of a violation of one of the rights set forth in the Covenant with an individual right to a remedy.
38. Equality between men and women is proclaimed in the basic instruments of the Republic: the preamble to the 1958 Constitution explicitly refers to the preamble to the 1946 Constitution, which provides that "the law guarantees women equal rights with men in all domains". Recent economic and social trends have brought about a parallel evolution in the status of women.
39. On 22 April 1957, France ratified the International Convention on the Political Rights of Women, which entered into force in France on 21 July 1957.
(a) Political rights
40. French women have the same political rights as men. In particular, they enjoy on an equal footing with men, without any discrimination, the right to vote in all elections and the right to be elected to all publicly elected bodies (Ordinance of 21 April 1944).
41. Furthermore, Organizational Act No. 83-1096 of 20 December 1983 abrogated article LO-128 of the Electoral Code, which provided that women who had acquired French nationality by marriage were not eligible for membership in the parliamentary assemblies until 10 years from the date on which such acquisition became final. As men have since then also gained the ability to acquire French nationality in this way, the result was that article LO-128 discriminated against women because men were not explicitly mentioned in the second paragraph of this article. The elimination of article LO-128 removed such discrimination since, henceforth, men and women who have acquired French nationality by any means whatever are immediately eligible for the offices of senator, deputy or President of the Republic.
42. Women also enjoy on an equal footing with men the right to hold any public office and to perform any function at all levels of the Government. Act No. 83.634 of 13 July 1983 on the rights and obligations of civil servants states that "No distinction between civil servants may be made on grounds of their opinions on politics or trade unions, their philosophy, religion, gender or ethnic origin" (art. 6). Fifty years after winning the vote, women now account for 53 per cent of the electorate and take part in elections as frequently as men. The abstention rate for women (24 per cent in the 1993 legislative elections) is virtually the same as for men (23 per cent). However, there are still very few women in political decision-making bodies: they account for only 6.1 per cent of the members of the National Assembly and 4.8 per cent of the senators. On the other hand, there has been a greater increase in the number of women elected to local bodies: 17.1 per cent of the members of the Municipal Councils, 5.6 per cent of the members of the General Councils and 12.3 per cent of the members of the Regional Councils are women. The European Parliament, 26 of whose 87 members are women, is the only body in which the number of women members approaches 30 per cent.
(b) Nationality
43. Women also have the same rights as men with regard to questions of nationality. Act No. 73-42 of 9 January 1973, supplementing and amending the Code on French Nationality, provides for equality between men and women with regard to the acquisition, loss or retention of French nationality. Act No. 84-341 of 7 May 1984 did away with one of the remaining cases of discrimination between the sexes with regard to the automatic extension of the loss of French nationality to the wife of a Frenchman who conducts himself as a national of a foreign country. Neither marriage with a foreigner nor a change in the husband's nationality during the marriage automatically entails a change in the wife's nationality.
44. Women enjoy the same rights as men with regard to the nationality of their children, whether born in or out of wedlock. Act No. 73-42 of 9 January 1983 has done away with inequalities between the father and mother in the transmission of French nationality. There is no longer a distinction between paternal and maternal descent or between legitimate and natural descent.
46. Act No. 70-459 of 4 June 1970 concerning parental authority places parents on an equal footing and puts an end to patria potestas. Henceforth, "during the marriage, the father and mother exercise their authority jointly". "Parental authority includes control of person and property".
47. The purpose of the Act of 22 July 1987 is to facilitate the exercise of joint parental authority. In the first place, this Act adds a provision which explicitly gives judges the right to assign joint parental authority when a couple separates. The Act of 1987 thus reflects the axiom according to which "the parental partnership continues even after termination of the marital partnership". Similarly, with regard to natural descent, the 1987 Act encourages the exercise of joint parental authority by amending article 374 of the Civil Code: the exercise of such authority requires only a joint statement by the parents before the guardianship judge.
48. Act No. 85-1372 of 23 December 1985, supplementing Act No. 65-570 of 13 July 1965, paved the way for further progress with regard to matrimonial regimes, the legal administration of the property of minors and their name.
(a) Matrimonial regimes
49. The reform carried out is a continuation of the 1965 reform, which established a new legal regime of community property (community of property acquired during the marriage). The 1965 Act was an important step forward in ensuring equality between the spouses, particularly by restoring to a married woman the management of her own property, but it maintained the principle of the management of common property by the husband even if the wife had taken part in the most important decisions and even if she had some privileges, mainly at the time of liquidation. Because of the weight of custom and the logic of a system dominated by the husband's powers, however, advantage could not be taken of the text's egalitarian potential and further legislative action was required.
50. Such action concerned the following three areas:
(a) Management of common property. The new Act has "bilateralized" the powers formerly given to the husband alone: in order to ensure equality, but also the autonomy of each spouse, the wife, like the husband, may henceforth manage and dispose of common property on her own, although certain important acts can be carried out only by mutual agreement of both spouses.
(b) Composition of the community. The community is unified by the elimination of the wife's assets and by removal of the very complex distinctions hitherto made between men and women in respect of joint liabilities. The purpose of these provisions, in addition to establishing equality, is to make it easier for the wife to obtain credit, particularly where she exercises a separate occupation. Thus, the law now stipulates that "both spouses are free to practise an occupation, receive earnings and wages therefrom and dispose of them as they see fit after meeting the expenses associated with the marriage" (Civil Code, art. 225) and that each spouse "shall be free to administer, commit or dispose of his or her own personal property".
(c) Dissolution of the community: as the wife now has the same powers as her husband, the privileges formerly granted to her (the right to recover possession, for example) have been cancelled; the rule for the assessment of indemnification due as compensation for the transfer of community assets to a single estate or vice versa has been made more flexible.
(b) Legal administration of the property of minors
51. The father no longer has a pre-eminent role. Adopting a solution consonant with that already in force for parental authority, the new Act provides that, where both parents exercise parental authority in common, whether they are married or unmarried, they jointly ensure the administration of the property of their under-age children. In other cases, such administration is ensured by the parent with parental authority under the supervision of a guardianship judge.
52. In the case of joint administration, each parent is regarded by third parties as having received the power to perform alone administrative acts concerning the estate of the child. Acts involving the disposal of property require the consent of both parents. Lastly, the right to dispose of income from the property of the children, which is connected with legal administration, is granted to the father, the mother or both jointly, according to the particular case.
(c) Name
53. With regard to transmission of a name, according to long-standing custom, accepted by the courts, the father's name has taken precedence. Thus, legitimate children bear their father's family name and natural children bear the family name of whichever parent was the first to recognize them. If recognition was simultaneous, the child bears the father's name (Civil Code, art. 334-1).
54. Without invalidating the rules concerning the transmission of name by filiation, Act No. 85-1372 of 23 December 1985 grants to each child the right to add to his surname, and use, the surname of the other parent which has not been transmitted to him. A name thus added cannot be transmitted to one's children. Its utilization is left to the judgement of its holder, who is under no other obligation in order to make use of it than that of indicating his intention to the administrative departments entitled to issue the documents which he wishes to have drawn up in the two names and that of providing proof of his right to use them. During a child's minority, this right is exercised by the person with parental authority.
55. Marriage in no way alters the family names of the two spouses (Act of 6 Fructidor II); the Decree of 20 March 1985 adds to the family record book a paragraph stating that "marriage shall have no effect on the names of the spouses, each of whom shall continue to bear only the surname entered on his or her birth certificate".
56. Either spouse may add the other's family name to his or her own and, in the case of the wife, substitute for her own in daily usage; in the case of the wife, this may, under the Prime Minister's circular of 26 June 1986, be the name of her former husband if she is authorized to continue to use it (Civil Code, art. 254), without the words "wife", "divorced" or "authorized to use the name of".
57. Act No. 83-635 of 13 July 1983, amending the provisions of the Labour Code and the Penal Code relating to occupational equality between men and women, prohibits job discrimination on grounds of gender and establishes the rule of equality. Henceforth, pursuant to articles 225-1 and 225-2 of the new Penal Code, a person's gender can in no circumstance constitute grounds for refusal to hire, for dismissal or for offering employment. The Act also incorporates into the Labour Code provisions on the prohibition of occupational discrimination between men and women.
58. An Equal Opportunities Board set up under the Act has been attached to the Ministries responsible for women's rights, labour, employment and vocational training. The Board, made up of representatives of the authorities and of labour and qualified individuals, is responsible for helping to define and implement policies relating to occupational equality between men and women (Labour Code, art. L 330.2).
59. Furthermore, article 1 of Act No. 85-772 of 25 July 1985 containing various provisions of a social nature (Journal Officiel of 28 July 1985) completed the 1975 and 1983 reforms by including among punishable discriminatory acts that hamper the exercise of an economic activity discrimination based on gender, moral conduct or family situation. The Act also adds article 2-6 to the Code of Criminal Procedure in order to enable associations working to combat discrimination based on gender or moral conduct to institute proceedings before the civil courts.
60. Furthermore, the Act of 22 November 1992 added to the Labour Code article L.122-46, prohibiting any employee from being penalized or dismissed for having suffered, or refused to suffer, sexual harassment from an employer and nullifying ipso jure any provision to the contrary. Furthermore, article 222-33 of the new Penal Code makes sexual harassment by a person in abuse of authority deriving from his post punishable by one year of imprisonment and a fine of 100,000 francs.
61. Lastly, on 1 July 1983, the French Parliament adopted an Act authorizing the ratification of the United Nations Convention on the Elimination of All Forms of Discrimination against Women. The instruments of ratification were deposited with the United Nations on 14 December 1983.
62. Article 6 of Act No. 83-634 of 13 July 1983 on the rights and obligations of public officials provides that no distinction may be made between officials because of their gender, subject to the application of article 21 of Act No. 84-16 of 11 January 1984, which contains statutory provisions relating to Government public service and allows separate recruitment of men or women to bodies in which the person's gender is a prerequisite for performance of the duties involved. A list of the bodies in question was laid down in the Decree of 15 October 1982; the number of such bodies was limited by the Decree of 26 August 1985.
63. The Act of 11 January 1984 also establishes in article 21 a procedure whereby the few remaining derogations are reviewed, in consultation with the competent joint bodies, on the basis of a report on the application of the principle of equality of the sexes in public service that is submitted to Parliament every two years. For example, physical education and sports teachers and police officers on active service are no longer on the list of bodies with separate recruitment.
64. Act No. 72-662 of 13 July 1972, the Armed Forces Act, does not include any provisions on the recruitment of women into the armed forces or their situation therein. Soon after the promulgation of this Act, the women's corps, which had existed since the end of the Second World War, were scheduled to be abolished, by 1 January 1976 in the case of the officers' corps, and by 1 January 1997 in the case of non-commissioned officers. At the same time, new regulations specifically applicable to officers and non-commissioned officers of both sexes were enacted by Council of State decrees, and it was stipulated that women could elect to serve under either the old or the new set of regulations. Most chose to serve under the new ones.
65. Henceforth, therefore, women, whether career soldiers or enlisted, serve under the same regime as their male counterparts. They have the same rights, employment guarantees and obligations (with regard to general duties, chain of command, promotion, decorations, brevets, diplomas or certificates and remuneration). With regard to recruitment, women may volunteer for national service, enlist in the ranks or as non-commissioned officers or take the recruitment examinations for the officers' corps.
66. It should be explained that while enlistment in some corps (for example, the corps of military engineers, special staff officers, naval education instructors, nurses and military hospital technicians) is open to either sex, other corps are open to both men and women but, in view of conditions of employment of these corps, which are subject to operational constraints, limitations on women's access thereto may be established by decree of the Minister responsible for the armed forces.
67. Lastly, it should be noted that Act No. 92.9 of 4 January 1992, amending the National Service Code, deals with voluntary service by women. If temporarily unfit for service, women volunteers may be temporarily exempted from the obligations resulting from enlistment. Special conditions apply to women volunteers on maternity leave: they are entitled to an allowance of 15 per cent of the base pay. A new article R 233.1 of the National Service Code summarizes the rights of pregnant women volunteers (compulsory prenatal examinations, a maternity record issued by the Ministry of Defense health service, maternity leave and a young child allowance).
68. This article makes it possible for the parties to derogate from their obligations under the Covenant "in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed". The protection of individual freedoms cannot be envisaged in the same way during normal periods and in time of emergency. When a State is experiencing a crisis, the ordinary law of freedoms gives way to much more restrictive measures which may be envisaged prior to the situation or may be introduced on such occasion.
69. In France, emergency regulations concerning public freedoms have been drawn up. They are governed by article 16 of the Constitution and by law.
70. Article 16 of the Constitution concerns situations where "the institutions of the Republic, the independence of the nation, the integrity of its territory or the fulfilment of its international commitments are under grave and immediate threat and when the proper functioning of the constitutional authorities is interrupted". In such a situation, "the President of the Republic shall take the measures demanded by these circumstances after official consultation with the Prime Minister, the Presidents of the Assemblies and the Constitutional Council". The decision to invoke article 16 is taken by the President of the Republic, who informs the nation by a message.
71. The basic effect of the entry into force of article 16 is to extend the competence of the President of the Republic in both the legislative and the regulatory fields. He may take all measures "prompted by a will to ensure within the shortest possible time that the constitutional governmental authorities have the means of fulfilling their duties. The Constitutional Council shall be consulted with regard to such measures". In addition, the entry into force of article 16 entails ipso jure the meeting of Parliament and the suspension of the right to dissolve it.
72. The measures taken to apply article 16 may involve both matters which normally fall within the scope of the law and those which derive from regulatory powers. The administrative courts may be called upon to exercise control in this area since the legality of such measures may be challenged before the Council of State.
73. Article 16 has been applied only once since the entry into force of the Constitution of 4 October 1958, i.e. from 23 April to 29 September 1961.
74. States of siege and states of emergency are governed by the law.
(a) State of siege
75. This is an exceptional measure which dates back to the era of besieged towns. This long-standing measure is provided for by the Act of 9 August 1849, as amended by the Act of 3 April 1878. A state of siege is declared in the event of immediate danger resulting from a foreign war, a civil war or an armed insurrection. It is decreed in a meeting of the Council of Ministers and it may not be maintained for more than 12 days; any extension beyond that limit must be authorized by Parliament (Constitution, art. 36).
76. In the past, a declaration of a state of siege has had a number of effects, all having in common the assumption of law-enforcement powers by the military authorities:
(a) the military authorities take over from the civilian authorities in maintaining law and order;
(b) the powers to maintain law and order exercised by the military authorities are broader than normal;
(c) the jurisdiction exercised in normal times by the ordinary criminal courts in matters of crimes and offences against State security may be transferred to the military courts.
(b) State of emergency
77. Governed by the Act of 3 April 1955, a state of emergency is declared in the event of imminent danger resulting from serious attacks on public order and in the event of national disasters (floods, earthquakes, explosions, etc.). It is decreed in the Council of Ministers.
78. Its main effect is to extend the powers to maintain law and order.
(a) In a simple state of emergency, the police are still the normal civilian authority, but they are invested with powers which derogate substantially from the law of the land, such as restrictions on movement, local expulsion, restricted residence and restriction of collective freedoms. The Act nevertheless provides specific guarantees: a person against whom an expulsion or restricted residence measure has been ordered may appeal to a commission consisting of general councillors. In addition, the administrative court with which an appeal is lodged on the grounds of action ultra vires, and the State Council in the event of an appeal, must give a decision within a very short time;
(b) A grave state of emergency gives the police authorities powers to order searches at any time of day or night and to control the press, radio, cinema and theatre. Such extended measures must be expressly decreed.
79. Under Act No. 82-621 of 21 July 1982 concerning the investigation and trial of military offences and offences against the security of the State and amending the Codes of Criminal Procedure and of Military Justice, the Permanent Courts of the Armed Forces have been abolished. In the event of a declaration of a state of siege or a state of emergency, territorial courts of the armed forces may be established; they will have the same jurisdiction as in time of war.
Reservation to article 4, paragraph 1
80. When France acceded to the Covenant, the Government made a reservation in relation to article 4, paragraph 1. This reservation states that "the circumstances as set forth in article 16 of the Constitution for its implementation, in article 1 of the Act of 3 April 1878 and in the Act of 9 August 1849 for the declaration of a state of siege, in article 1 of the Act of 3 April 1955 for the declaration of a state of emergency and for the proper application of these instruments, must be understood as complying with the terms of article 4 of the Covenant". The French reservation specifies the interpretation to be given to measures taken by the President of the Republic in application of article 16 by stating that the expression "to the extent strictly required by the exigencies of the situation" would not be such as to limit the power of the President of the Republic to take "the measures required by these circumstances".
81. When France acceded to the Covenant, it undertook not to derogate from articles 6, 7, 8 (paras. 1 and 2), 11, 15, 16 and 18, should it be required to take measures derogating from its obligations in the circumstances provided for in article 4, paragraph 1.
82. France has also undertaken, in the event of its being required to avail itself of the provisions of article 4, paragraph 1, to inform the other States parties, through the Secretary-General of the United Nations, of the provisions from which it has derogated and of its reasons for doing so.
83. This paragraph envisages the hypothesis of a State, group or person interpreting a provision of the Covenant in such a way as to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized in the Covenant. The French Government believes that such an activity or act would in itself be contrary to the Covenant.
84. Paragraph 2 of the article envisages another hypothesis: one in which other basic human rights are recognized and protected pursuant to instruments
other than the Covenant or pursuant to custom. This article prohibits any restriction upon or derogation from these rights which may be based on the pretext that the Covenant does not recognize them.
85. The French legal system, the main features of which are outlined in the core document (HRI/CORE/1/Add.17/Rev.1), is based on instruments which guarantee certain rights and freedoms to individuals. Some of them are not included in the Covenant but, since they form part of ordinary legal norms, they enjoy the same protection and the fact that they are not mentioned in the Covenant cannot be interpreted as a licence to derogate from them.
86. The right of every human being to life is affirmed in article 3 of the Universal Declaration of Human Rights and in article 2 of the European Convention on Human Rights, both of which form part of the French legal system. There are legal provisions making homicide and murder of a child under the age of 15, a parent or grandparent, a particularly vulnerable person, a Government representative or a witness punishable by life imprisonment. Murder and poisoning are punishable by a 30-year prison sentence.
87. These crimes carried the death penalty until 9 October 1981, when the death penalty was abolished by Act No. 81-908, which abrogated articles 12-17 of the Penal Code relating to the death penalty and article 713 of the Code of Criminal Procedure concerning the enforcement of sentences. It also abrogated or amended a number of articles of the Code of Military Justice concerning the death penalty as a sentence by military courts.
88. As mentioned above, the death penalty was abolished in France by Act No. 81-980 of 9 October 1981. This Act is general in scope and there are no specific derogations from its application. Article 9 of the Act extends its effect to death sentences passed since 1 November 1980 and to sentences appealed on a point of law if the appeal is withdrawn or dismissed.
89. Since 26 November 1950, France has been a party to the Convention on the Prevention and Punishment of the Crime of Genocide. French criminal legislation provides for the punishment, on various counts, of the different aspects of genocide.
Paragraphs 4, 5 and 6
90. Since the death sentence has been abolished, these three provisions do not apply to French law.
91. The French Government is deeply committed to the condemnation and punishment of torture. France thus took an active part in the preparation both of the Universal Declaration of Human Rights of 10 December 1948 and of later instruments designed to combat this odious practice, particularly the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations General Assembly resolution 3452 (XXX) of 9 December 1975). On 18 February 1986, France ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It also took an active part in the preparation of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which it ratified on 9 January 1989.
92. French legislation provides for the punishment of acts of torture. Article 222-1 of the new Penal Code states that offenders who employ torture or commit barbaric acts shall be sentenced to 15 years of imprisonment. Such acts are punishable by life imprisonment if committed before, during or after a crime.
93. Moreover, individuals are protected from any act of violence committed without lawful cause by public officials or employees carrying out their functions or mission or on duty. The punishment depends on the nature and gravity of the act of violence, and the offender's rank constitutes an aggravating factor in many crimes or offences.
94. For the implementation of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 72 of Act No. 85-1407 of 30 December 1985, containing various provisions of criminal procedure and criminal law, incorporated into the Code of Criminal Procedure an article 689-2 introducing the rule of universal jurisdiction in matters relating to torture.
95. France abolished slavery by the Decree of 27 April 1848 and, since that time, it has been associated with all activities aimed at putting an end to the practice of slavery. It is therefore a party to the Slavery Convention of 25 September 1926 and its amendments and to the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 7 December 1956. France is also a party to the United Nations Convention of 2 December 1949 for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.
96. Similarly, the state of servitude does not exist in France and the French Constitution refers to the 1789 Declaration of the Rights of Man and of the Citizen, which states in article 1: "Men are born and remain free and equal in rights" and in article 6: "The law is the expression of the general will of the community ... All citizens (are) equal in its sight". The Constitution itself embodies this principle in article 2: "It (France) ensures the equality of all citizens before the law, without distinction as to origin, race or religion".
97. The general principle of freedom set forth in the Declaration of the Rights of Man and of the Citizen covers the individual and collective freedoms guaranteed by the Constitution, the laws and judicial practice, as outlined in the core document (HRI/CORE/1/Add.17/Rev.1) and as an examination of some of these freedoms will show.
98. The relationship between a man and his work is governed in France by the principles embodied in the preamble to the Constitution of 24 October 1946: "Everyone has the duty to work and the right to obtain employment". The worker is recognized as possessing certain rights: the right to defend his rights and interests by trade union activity, the right to strike and to participate in determining working conditions and in the management of enterprises. These rights are exercised in accordance with the relevant legislative instruments.
99. "Forced labour" was abolished in France by an ordinance of 4 June 1960. Forced or compulsory labour would therefore be illegal even outside the cases listed in paragraph 3 (c). "Traffic in women" and the exploitation of the prostitution of others are thus punishable offences. Articles 225-5 and 225-10 of the new Penal Code make procuring an offence punishable by imprisonment and a fine - the punishment being even harsher in the case of the prostitution of a minor. Criminal sanctions are incurred if procuring is committed by an organized band or is accompanied by torture or barbaric acts.
100. The preamble to the Constitution refers to the 1789 Declaration of the Rights of Man and of the Citizen, article 7 of which states: "No person shall be accused, arrested or imprisoned except in the cases and according to the forms prescribed by law".
101. The right to liberty as provided for in article 9, paragraph 1, is recognized in article 66 of the Constitution, which states: "No one may be arbitrarily detained". It is the task of the judicial authority to ensure that this principle is respected under the conditions prescribed by law.
102. This instrument and those enacted for its enforcement embody three basic principles:
(a) The legality of offences and penalties: this is the principle that, before an act is punishable, it must be declared so by law; it also implies that the applicable penalty must also be specified by law;
(b) The exclusive jurisdiction of the judicial authority for penal action;
(c) The presumption of the innocence of the accused as the guiding principle of penal procedure.
103. The arrest or detention of an individual may not be decided arbitrarily and must be effected in conformity with the procedure established by law. When an offence has been committed, the judicial police carries out an on-the-spot or preliminary investigation designed to identify the person or persons presumed responsible and to search for and safeguard evidence of the offence. During this phase, the judicial police is subject to the authority of the public prosecutor.
104. The police may keep a person who is considered a suspect on police premises for a certain period of time in order to question him. This is known as police custody, a procedure regulated by the Code of Criminal Procedure. Such a measure may be decided only by an officer of the judicial police and may not exceed a period of 24 hours, which may be extended for a further 24 hours by the prosecutor.
105. After this first extension, a further prolongation of 48 hours may be authorized in cases of drug trafficking or acts of terrorism. This measure must be authorized by the examining magistrate or, at the request of the Government Attorney, by the presiding judge of the court of major jurisdiction or a judge delegated by him (Code of Criminal Procedure, arts. 706-24 and 706-29). In principle, no prolongation of custody may be ordered until the person in question has been produced before the judge.
106. Anyone held in custody may, at his own request, have a person with whom he normally lives, a parent, grandparent, brother or sister, or his employer, notified by telephone. If the judicial police officer considers it necessary for the purposes of the investigation to refuse this request, he must refer the matter without delay to the Government Attorney for a decision.
107. Anyone held in custody may request an immediate medical examination (Code of Criminal Procedure, art. 63-3). Such persons may also meet with a lawyer after being in custody for 20 hours (Code of Criminal Procedure, art. 63-4); this is extended to 36 hours in cases involving procuring, extortion or conspiracy and 72 hours in cases involving drug trafficking and terrorist acts.
108. Lastly, any documents signed by detainees while in custody must give the grounds for the use of this measure, its exact duration, the exact duration of the periods of questioning and the intervals between them. These records must also mention the fact that the individual has been informed of his rights in a language which he understands at the beginning of the procedure.
109. In the case of minors, the Act of 4 January 1993 states that:
(a) Minors under the age of 13 may not be placed in custody;
(b) If the minor is over the age of 13, his guardian or the person or agency responsible for him must be informed immediately of his placement in custody unless the Government Attorney or the examining magistrate decides not to do so for a given period of time;
(c) The custody period for a minor over the age of 13 may not be extended until he has been brought before the Government Attorney or the examining magistrate;
(d) A minor against whom proceedings have been brought must have a lawyer. Furthermore, the Act of 24 August 1993 states that where there are serious and corroborating indications that a minor between the ages of 10 and 13 has committed, or attempted to commit, an offence punishable by at least seven years' imprisonment, he may, for the purposes of the investigation and with the prior approval, and under the supervision, of a magistrate, be held in custody for a period not to exceed 10 hours.
110. Lastly, it should be noted that article 35 bis of the amended Ordinance of 2 November 1945 on conditions governing the entry and sojourn of foreigners in France establishes the procedure for administrative custody. A foreigner who must be handed over to the competent authorities of a member State of the European Community, is the subject of a deportation order or must be escorted to the border but cannot immediately leave France may, if necessary, be assigned to premises not part of the prison system pursuant to a written, substantiated decision of the departmental State representative.
111. This assignment, which is for a 24-hour period, may be extended by the presiding judge of the court of a major jurisdication or a judge delegated by him for a period of six days after the person concerned has been heard by the court in the presence of counsel. This six-day period may be extended by the judge for a maximum of 72 hours in the case of an emergency presenting a serious threat to public order or if there is proof that additional time is needed to obtain the travel documents required for implementation of the deportation order.
112. Court orders extending such custody may be appealed before the senior president of the Appeals Court, who must hand down a decision within 48 hours of submission of the case. Throughout the period in question, the Government Attorney may visit the premises and verify the conditions of custody. A person in custody may also request the assistance of an interpreter, a doctor or a lawyer and, if he wishes, may communicate with his consulate or with an individual of his choice.
113. Furthermore, Act No. 93-1417 of 30 December 1993, which includes various provisions related to immigration control and amending the Civil Code, established a new procedure known as judicial custody. This procedure applies to foreigners who have not submitted to the competent administrative authority the travel documents necessary for implementation of a deportation order or who have not provided the information which would make possible the implementation thereof. The judge may place such persons in detention for a maximum of three months. The judge must inform the person in question of his rights with regard to assistance and communication. In addition to the
assistance of an interpreter, a doctor or a lawyer, foreigners have the right to communicate by mail or by telephone with anyone whom they choose and to receive visitors authorized by a court-appointed magistrate.
114. The Code of Criminal Procedure empowers the examining magistrate to charge any person who has taken part, either as perpetrator or as accomplice, in the acts brought before him. The accused is defended by a lawyer who is entitled, throughout the investigation, to consult the case file, which must contain all the documents pertaining to the procedure.
The writ of capias ("mandat d'amener")
115. The writ of capias is an order given by the court to the police to bring the accused before it without delay. Article 123 of the Code of Criminal Procedure states that the order must specify the identity of the accused, the nature of the charge and the applicable section of the law. It thus informs the accused of the charges against him.
116. In the event of a flagrant crime, where the case has not yet been brought before the examining magistrate, the Government Attorney may issue a writ of capias against any persons suspected of having taken part in the offence and must question such persons forthwith (Code of Criminal Procedure, art. 70).
The arrest warrant ("mandat d'arrêt")
117. The arrest warrant is an order given to the police to search for a person with no known address where there are serious and corroborating grounds for charges being brought against him, or a person who has been charged and is currently a fugitive, so that he may be taken to the place of detention indicated on the warrant, admitted and held in custody.
118. French law has long governed in great detail the form and use of writs of capias and arrest warrants. However, it set no maximum limit on the time spent in detention during transfer before the judge who issued the warrant or the waiting period before the person appeared before the judge. The Act of 9 July 1984 stipulates the duration of these periods. It establishes the principle that any person found within 200 km of the bench of the examining magistrate who has issued a warrant must appear before the magistrate within 24 hours at the latest.
119. Where the accused person is apprehended beyond this limit and where he cannot be transferred immediately or does not agree to such transfer, he must be produced within the same period of time before the Government Attorney of the place where he is arrested. He must then appear within four days before the examining magistrate who has issued the warrant, this period being extended to six days in the case of transfer from an overseas department to another department or from metropolitan France to an overseas department.
120. Except in cases of force majeure, failure to comply with these time limits entails the release of the person apprehended by order of the examining magistrate hearing the case. In any event, deprivation of freedom suffered as a result of the execution of a writ of capias or arrest warrant is deducted, from the duration of any sentence passed.
121. In order to protect individual freedoms, the period from the time when an individual is arrested or detained until he appears in court must be kept as short as possible.
Pre-trial detention
122. In order to prevent an accused person from covering his tracks or disappearing, it may be necessary to place him in pre-trial detention for this period. This is decided by the examining magistrate and must meet certain formal requirements. The decision must specify the exact reasons for the order, the opinion of the prosecutor and the comments of the accused and of his defence counsel, if any. Secondly, pre-trial detention may be ordered only if the penalty for the presumed offence is a minimum of two years' imprisonment. Furthermore, this decision is authorized only where the constraints provided by judicial supervision are insufficient and this measure is the only means of (a) maintaining public order; (b) preventing pressure from being exerted on witnesses or collusion from taking place between the accused and their accomplices; (c) preserving material proof or evidence; (d) halting commission of an infraction or preventing its recurrence; or (e) ensuring that the person remains at the court's disposal. The Act of 6 August 1975 limited the period of pre-trial detention to six months in the case of a first offence where the penalty does not exceed five years' imprisonment.
123. Act No. 84-576 of 9 July 1984, which is intended to strengthen the rights of persons with regard to pre-trial detention and the execution of a court order, provides for statements to be made by the prosecution and the defence before an examining magistrate who is considering the possibility of placing the suspect in pre-trial detention (new Code of Criminal Procedure, art. 145). In this case, the examining magistrate, following the statements made during the first appearance or, if necessary, during the investigation, must inform the accused that he has the right to be assisted by counsel of his own choosing or by a court-appointed lawyer. The lawyer who is chosen or appointed is immediately informed and may consult the file without delay and communicate freely with his client. The examining magistrate then holds a hearing in chambers during which he hears first the charges brought by the public prosecutor, then the comments of the accused and his counsel.
124. If the accused cannot be assisted immediately by counsel or if the lawyer requests time to prepare a defence, the judge has to postpone his ruling on placing the accused in detention. He may then, if he deems it essential, by a substantiated decision referring to the circumstances which have just been described, order the imprisonment of the accused for a specific period which may not exceed five days. During this period, statements by the prosecution and the defence must be made in the presence of the accused. If, after the hearings, the judge does not order him to be placed under detention, the accused is released, whether or not the public prosecutor appeals that decision.
125. A genuine exchange is therefore conducted between the parties before any decision is taken to imprison an individual who is presumed innocent. In 1993, the average length of pre-trial detention was 7.3 months. In 1992, of a total of 49,838 individuals held in pre-trial detention, 35 per cent were detained for less than one month, 32 per cent for one to four months, 18.23 per cent for four to eight months and 13 per cent for more than eight months (source: National Criminal Records Office).
126. When the trial is concluded, if the accused is found guilty, the period spent in pre-trial detention will be counted as part of the period of imprisonment. If the case is dismissed (because the examining magistrate deems that the evidence is insufficient to justify a trial) or the accused is discharged or acquitted, he may claim compensation if the detention has caused him injury that is manifestly abnormal and of particular gravity (Code of Criminal Procedure, art. 149). This compensation procedure was introduced by the Act of 17 July 1970.
Judicial surveillance
127. The Act also established a new legal technique, judicial surveillance, designed to replace detention. The decision to place an accused person under this type of surveillance is taken by the examining magistrate if he considers that the measure is necessary for the purposes of the investigation or in the interests of public safety. The accused is then subject to various types of restriction on his freedom of movement, on whom he can associate with and on his professional activities and must report regularly for checking.
128. The order placing an accused under judicial surveillance may involve the requirement that he should post bail, the amount and payment schedule to be determined by the examining magistrate, bearing in mind, for example, the accused's financial situation. He may be allowed to pay the amount in several instalments. The bail serves to guarantee his appearance at all stages of the proceedings leading up to sentencing and the payment of legal expenses and fines.
129. Moreover, the immediate referral procedure instituted by the Act of 9 September 1986 empowers the Government Attorney to refer a case to the court on the same day as the accused is brought before him. In order for him to do so, the charges must, in his opinion, be sufficient and the prescribed penalty must be not less than two or more than five years' imprisonment.
130. It should be added that the Acts of 30 December 1987 and 6 July 1989 placed limitations on the grounds for, and length of, placement of minors in pre-trial detention. For example, pre-trial detention is no longer authorized under any circumstances for minors under the age of 13. With regard to ordinary offences, pre-trial detention of minors aged 13 to 16 has been prohibited since 1 March 1989. If the minor is between the ages of 13 and 16 and the prescribed penalty is seven years' imprisonment or less, pre-trial detention may not exceed one month with the possibility of extension for one month. If the prescribed penalty is greater than seven years' imprisonment, pre-trial detention may not exceed one year (4 + 4 + 4). With regard to criminal offences, if the minor is between the ages of 13 and 16, pre-trial detention may not exceed one year (6 + 6). If the minor is between the ages of 16 and 18, it may not exceed two years (1 year, adversary proceedings + 1 year).
131. It should also be explained that the court education service must be consulted before any application or decision for placement of a minor in pre-trial detention or prolongation of such detention. The report prepared by this service must be attached to the record of proceedings. Any decision for placement in, or prolongation of, pre-trial detention must be preceded by adversary proceedings held in the presence of all the parties concerned and their lawyers.
132. For example, during 1993, 1,299 minors were detained. In 50 per cent of those cases, the period of detention did not exceed one month. It should also be emphasized that the number of minors in detention (both pre-trial and post-sentencing) has steadily decreased over the past few years. For example, the number of minors in pre-trial detention fell from 989 on 1 January 1987 to 445 on 1 January 1993.
Paragraph 4
133. Any violation by the administrative or judicial authorities of the rules for the protection of personal security is punishable by law. The new Penal Code defines the acts which are punishable and specifies the persons concerned (arts. 432-4 to 432-6). Generally speaking, the acts concerned involve attacks on individual freedoms. The persons concerned are public officials or employees carrying out their functions or mission or on duty. Article 136 of the Code of Criminal Procedure states that, in the event of violation of individual freedom, the administrative authority may never take the case to a higher court and the regular courts have jurisdiction in all cases.
134. Moreover, the defendant may at any time apply for release. The application must be submitted to the examining magistrate, who must immediately transmit the file to the Government Attorney and take a decision within five days. If he fails to do so, the accused may raise the matter directly with the public prosecutor, who must take a decision within 20 days. The accused also has the option of applying for release at any time. In this case, the court must reach a decision within 10 days, failing which the accused is automatically released.
Paragraph 5
135. As indicated in the comments on paragraph 3, anyone who has been wrongfully detained may claim compensation (para. 126). The Act of 17 July 1970 introduced a special procedure for the compensation of persons held in pre-trial detention in connection with proceedings which conclude with a decision not to prosecute them or to discharge or acquit them, when such detention has caused them "damage that is manifestly abnormal and of particular gravity". The compensation, awarded by a Board composed of three judges of the Court of Cassation whose decision is final, is payable by the State, which can claim against any person who has provided information in bad faith or any person who has given false evidence and whose wrongful act has led to or prolonged the detention.
136. As for actual unlawful arrest or detention, the Government is required under article L.781-1 of the Judicial Organization Code to make good any damage caused by a defect in the administration of justice. Liability is incurred in the event of gross negligence or a denial of justice. Where liability is due to personal fault on the part of a judge, the Government undertakes to make good the damage, but can claim against the judge.
Reservation to article 9
137. France has made a reservation concerning this article, on the basis of the very subtle nature of the distinction it implies between criminal charges and purely disciplinary charges. Thus, the article cannot be invoked against the application of the regulations governing discipline in the armed forces. The same reservation applies to article 14 of the Covenant (see para. 258). A reservation has also been made to similar provisions in articles 5 and 6 of the European Convention on Human Rights.
138. French prison regulations are fully in line with European prison regulations (recommendations Nos. R (87) 3 and R (92) 16, adopted by the Committee of Ministers of the Council of Europe).
139. A broad movement of legislative reform has been undertaken in recent years, whose main stages have been:
(a) Act No. 70-643 of 17 July 1970, aimed at providing stronger safeguards for the individual rights of citizens;
(b) Act No. 72-1226 of 29 December 1972, simplifying and supplementing a number of provisions relating to criminal procedure, penalties and their enforcement;
(c) Act No. 73-624 of 11 July 1975, amending and supplementing a number of provisions of criminal law;
(d) Act No. 78-1097 of 22 November 1978, amending a number of provisions of the Code of Criminal Procedure on the enforcement of custodial penalties;
(e) Act No. 87-482 of 22 June 1987, relating to the public prison service, defining the aims of the public prison service: enforcement of penal decisions and sentences, preservation of public security, reinsertion of persons entrusted to it by the judicial authorities and individualization of penalties. This Act makes provision for and determines the extent of private sector involvement in the planning, building and certain aspects of the operation of penal institutions. Lastly, it abolishes the obligation for convicts to work, while making provision for work and training activities to be taken into account in assessing the convicts' conduct and capacity for reintegration;
(f) Act No. 90-589 of 6 July 1990, amending the Code of Criminal Procedure and the Insurance Code, and relating to the victims of offences. This introduces a new article 728-1 into the Code of Criminal Procedure, concerning the financial assets of detainees. The article incorporates into law the general rules applicable to the allocation of detainees' financial assets and the procedure for compensating claimants from the portion reserved for them;
(g) Act No. 90-9 of 2 January 1990, amending article 720 of the Code of Criminal Procedure, in order to enable convicts working outside penal institutions to enter into contracts of employment;
(h) Act No. 92-1279 of 8 December 1992, amending book V of the Public Health Code and relating to pharmacies and medicines, and in particular article L 595-9 1 instituting pharmacies for internal use in penal institutions;
(i) Acts Nos. 92-683, 92-684, 92-685 and 92-686 of 22 July 1992, abrogating the 1810 Penal Code and establishing the new Penal Code;
(j) Act No. 92-1336 of 16 December 1992, relating to the entry into force of the new Penal Code and the amendment of a number of provisions of criminal law and criminal procedure required by the entry into force of the new Code; the new Penal Code became applicable on 1 March 1994;
(k) Act No. 93-2 of 4 January 1993, reforming criminal procedure and Act No. 93-1013 of 24 August 1993, amending the Act of 4 January 1993;
(l) Decree No. 93-192 of 8 February 1993 amended a number of provisions of the third part (decrees) of the Code of Criminal Procedure and updated the provisions relating to the transfer of prisoners, social welfare, education and appeals against decisions by the visiting magistrate;
(m) Decree No. 93-347 of 15 March 1993 amended articles D 200 and D 347 of the Code of Criminal Procedure to bring them into line with the new texts relating to efforts to combat smoking;
(n) Act No. 94-43 of 18 January 1994, relating to public health and social welfare amended the arrangements for providing health care to detainees, by transferring responsibility for it from the prison service to the public hospital service, and extending welfare to all detainees, who are thus covered by the general social security system from the moment of their incarceration.
140. Detainees are divided into different categories, details of which will be provided in the section relating to paragraph 3 (paras. 151 to 177), and prisoners awaiting trial are separated from convicted prisoners. Prisoners awaiting trial are held in the local prison (maison d'arrêt) nearest the court before which they are to appear. Prisoners with less than one year of their sentence remaining are also held in local prisons.
141. On 1 January 1995, the total prison population was 51,633 in mainland France and 2,272 in the overseas departments. Of the total prison population of 53,905, 23,093 were awaiting trial (including prisoners pending appeal or application for judicial review), 22,990 were serving ordinary prison sentences and 7,511 criminal sentences and 311 were serving civil imprisonment or awaiting extradition.
(a) Prisoners awaiting trial
142. Visiting permits are issued by the magistrate investigating the case. Prisoners may correspond with whomsoever they wish, unless the magistrate decides otherwise. They may communicate freely with their lawyer without the presence of a warder and in a special visiting room, and may correspond with their lawyer without any check by the prison authorities.
143. Under the provisions of article 716 of the Code of Criminal Procedure, prisoners awaiting trial are kept in individual cells, day and night. Any departure from this principle is attributable to space limitations or temporary overcrowding. The same applies if a prisoner awaiting trial has applied to work and if the demands of such work involve a derogation from the principle.
(b) Convicted prisoners
144. The prison governor issues visiting permits. Visits now take place in visiting rooms without any dividers, unless the governor decides otherwise or a request is made by the prisoner or his visitor.
145. Convicted prisoners may correspond with anybody, daily without restriction and receive letters from anybody. However, their correspondence may be read and monitored by the prison authorities. Whatever the case, all detainees, whether awaiting trial or convicted, have the unrestricted right to sealed correspondence, unchecked by the prison authorities, with certain French administrative and judicial authorities and with European authorities (the European Court of Human Rights, the European Commission of Human Rights and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment). In addition, this list is regularly updated.
146. In order to preserve family ties, convicted prisoners in detention centres are also authorized to telephone their families once or persons holding a visiting permit as often as authorized by the establishment's internal regulations. Convicted prisoners held in detention centres are also permitted to arrange and decorate their cells as they wish, provided no damage is done to the prison installations.
147. Article 11 of the Ordinance of 2 February 1945 specifies that "in all cases juveniles shall be held in a special area or failing this in special premises; they will as far as possible be kept isolated at night". When their imprisonment is unavoidable, means of limiting its duration are adopted.
For example:
(a) Families are informed as soon as the juvenile is brought before the magistrate and throughout the procedure, at the initiative of the judge responsible for the case;
(b) Particular attention is also paid to the individual report on the suspect;
(c) The purpose of the visit by the juvenile magistrate is to enable him to acquaint himself with the actual living conditions of detained juveniles and to meet all persons responsible for them on the spot;
(d) Special attention is also paid to preparing juveniles for release and to the conditions of their release. As soon as they leave the penal institution it must be possible for juveniles to be taken into the care either of their family or of an education service.
148. The conditions under which juveniles are detained were detailed in a circular from the Minister of Justice, dated 4 February 1994. The circular also emphasizes the need for complementarity between measures taken by the prison administration and the young persons legal protection service, in order to limit the period of imprisonment of juveniles and to make preparations for their reintegration when they leave prison.
149. As a means of improving the conditions under which juveniles are imprisoned and of effectively complying with the requirements of article D 53 of the Code of Criminal Procedure concerning appropriate premises for minors, a chart of penal institutions has been jointly prepared by the prison authorities and the young persons' legal protection service, after consultations with the heads of the courts and the regional directors of the prison service and of the young persons' legal protection service.
150. Fifty-three penal institutions were selected. The institutions, which are distributed throughout France, were chosen with a view to preserving family relations and avoid isolating imprisoned juveniles in unsuitable premises. They also possess suitable premises for accommodating juvenile detainees and guaranteeing their security, and for ensuring compliance with the principle that juvenile detainees are held in adjoining cells grouped together in a section of the prison. Lastly, they ensure the provision of socio-educational and training activities suited to the requirements of this category of prisoner.
151. One of the prison administration's priorities is to pursue an active approach to the development of alternatives to imprisonment. In addition to increasing the number of prison places, the multi-annual plan for the judicial system provides for the creation of jobs in open institutions, thereby doubling the membership of the probation committees. The increase in prison capacity will be achieved by providing an extra 4,180 prison places.
152. This effort will be supplemented by diversifying prisons and setting up regional prisons, thereby making it possible better to deal with notoriously dangerous prisoners and to build central prisons for small numbers. It is also planned to improve the treatment provided for difficult prisoners by regional medico-psychological services, as well as supervision of dangerous prisoners held in regional prisons.
153. These objectives are also accompanied by special measures:
(a) The work of prison personnel is specially adapted to meet the needs of modern prisons, with a focus on an individualized approach;
(b) Improved provision for the needs of prisoners and for their reinsertion.
These efforts require the introduction of programmes for prisoners in all penitentiaries.
154. The need for planned induction and the definition of such programmes for convicted prisoners are affirmed by recommendation R (87) of the Committee of Ministers of the Council of Europe, dated 12 February 1987. The programmes will make it possible to involve prisoners more actively in serving their sentence and will ensure that their obligations towards victims are more fully taken into account. In addition, by defining programmes it will be possible to provide better treatment for convicted prisoners and better to prepare them for their release. Introduction of the programmes requires a reorganization of induction and observation centres for detainees, formal assessment and the definition of individualized goals closely linked to the policy of individualization within the judicial system.
155. Lastly, the prison service, which intervenes at the last stage of a penal process which in many cases merely reflects a deterioration in an individual's social and economic circumstances, must be organized to cope with individuals who pose problems (imprisoned juveniles, the illiterate, the destitute and prisoners with psychological and psychiatric problems). Consequently, custodial sentences are no longer seen as a form of punishment but as a means of reintegrating convicted persons into society. The assignment of convicted prisoners to a specific institution thus depends on their criminal status, age, state of health and personality.
156. Convicted prisoners are assigned to penitentiaries on the basis of their sex, age, penal status, background, state of physical and mental health and their aptitudes, and, more generally on the basis of their personality and of the penal regime applicable to them for rehabilitation purposes.
157. Counselling of prisoners is based on the information provided by the judicial authorities and the prison service and, if appropriate, on the examinations carried out on them by the prison service's national observation centre. Wherever possible, prisoners are involved in drawing up or adjusting their own programme, which is defined and implemented in consultation with the different categories of staff.
158. Convicted prisoners may be held either in (a) central prisons whose organization and security regime are nevertheless such as to preserve and develop opportunities for the reintegration of convicts and (b) detention centres whose regime focuses principally on the reintegration of convicted prisoners.
159. Assignment of convicted prisoners to central prisons or national detention centres is decided exclusively by the central prison service. Regional detention centres hold prisoners serving sentences of less than seven years who have less than five years of their sentence remaining. As a rule, assignment to these establishments is the responsibility of the regional directors. Convicted prisoners serving a sentence of more than one year are sent to central prisons, detention centres or specialized establishments. Prisoners serving a sentence of less than one year are sent to local prisons. If a juvenile is sentenced to prison, he is entitled to a special regime.
160. In 1991 the prison service drew up a chart of prison establishments for the accommodation of juvenile prisoners in local prisons. Fifty-three establishments were chosen on the basis of their location in terms of the requirements of the courts concerned and to avoid isolating juvenile detainees in unsuitable establishments. This new chart requires efforts to ensure not only that the conditions of detention of juveniles are fully in conformity with legislation and regulations, but that they are suited to juvenile detainees' requirements as regards training and socio-educational measures.
161. The French system of individualization of sentences relies on the visiting magistrate, who is responsible for monitoring the sentences of convicted prisoners and ensuring court sentences are individualized, by deciding upon the main elements of "penal treatment". Individualization of sentences can occur at two points:
(a) When sentence is passed;
(b) When the sentence is being served, the possibilities for individualization are laid down by the Code of Criminal Procedure: suspended sentence, suspended sentence with probation, deferment of sentence in exchange for community service, alternative sentences such as suspension of a person's driving licence, confiscation of his vehicle, the daily fine and temporary immobilization of his vehicle.
162. The penalty of community service (introduced by the Act of 10 June 1983) has been diversified:
(a) It may take the form of a suspended sentence in conjunction with the obligation to perform community service, which is generally specified at the sentencing stage or subsequently when a custodial sentence of six months or less (handed down in absentia) is "converted";
(b) It may be handed down as a complementary penalty either for certain road traffic offences (art. L.1-1 of the Highway Code), or for certain minor offences.
In this latter case, the introduction of the new Penal Code (Act of 16 December 1992) made provision for the penalty of community service to be handed down as a complementary penalty to punish minor offences of the fifth category.
163. As regards the enforcement of sentences, the law affords a number of possibilities for individualization: parole, furlough, normal or supplementary remission of sentence, suspended sentence, splitting up of sentence, assignment to an open prison and so on. Decisions regarding the enforcement of sentences are generally taken by the visiting magistrate, occasionally by the public prosecutor (suspension of a non-custodial sentence), the trial court (which may pass a concurrent sentence and, in certain cases, suspend the enforcement of custodial sentences) or even by the Minister of Justice (as in the case of certain decisions regarding parole).
164. The Code of Criminal Procedure offers several possibilities for dealing with convicted prisoners in an open environment.
(a) A suspended prison sentence with an 18-month to 3-years period of probation
165. The convicted prisoner is placed under the supervision of the visiting magistrate whose task it is, with the assistance of the probation board, to ensure compliance with the conditions imposed on him and to provide him with such welfare and educational assistance as he may require. A suspended sentence combined with probation is allowed for only part of the prison sentence.
(b) A prison sentence in conjunction with community service
166. The court which hands down a prison sentence may order a suspended sentence together with community service for between 40 and 240 hours. As in the case of a suspended sentence with probation, the convicted person must perform a number of obligations, including community service. This sentence can be handed down only if the accused is present at the hearing.
(c) Community service
167. Community service may constitute a principal or complementary penalty (offences or infringements).
(d) Deferment of the sentence in conjunction with probation
168. This may only be decided at the time of the judgement if the accused is present at the hearing, his rehabilitation is under way, the damage is being repaired and the injury caused by the offence is being remedied. As in the case of a suspended sentence with probation, the party concerned is placed under the supervision of the visiting magistrate for a period which, in this case, may not exceed one year.
(e) Parole
169. The right to grant parole lies with the visiting magistrate or the Minister of Justice. Subsequent to the Act of 4 January 1993, the visiting magistrate is empowered to grant parole to persons serving a sentence of not more than five years. If the penalty involves more than five years' imprisonment, parole is granted by the Minister of Justice. As in the case of the previous measures, a person on parole is under the supervision of the visiting magistrate and of the probation board for a probationary period.
170. This complementary penalty (in respect of correctional or criminal offences) was considerably amended by the Act of 16 December 1992 concerning the entry into force of the New Criminal Code. The prerogatives previously exercised by the Ministry of the Interior were transferred to the judicial authorities. A person sentenced to restricted residence is subject to one or more supervisory measures determined by the court and monitored by the visiting magistrate.
171. Partial release allows a convicted prisoner, outside the prison, to engage in an occupation under the same conditions as ordinary workers, to follow educational courses or receive vocational training, to follow an internship or take on a temporary job in anticipation of their return to society, to participate in family life or receive medical treatment. Convicted prisoners who benefit from the partial release regime are required to return to the prison as prescribed by the visiting magistrate.
172. External placement enables a convicted person to be employed outside the prison on work supervised by the authorities.
173. Furlough can be granted to a convicted prisoner for a limited period with a view to preparing his occupational and social rehabilitation and to maintaining his family ties.
174. One of the priorities for the prison administration is to strengthen functional links between the social and educational services in closed and open prisons, since it is a means of guaranteeing better treatment for the individuals entrusted by the judicial authorities to the public prison service.
175. To achieve this, consolidated socio-educational services have been introduced on an experimental basis. The purpose of these services is to ensure continuity in the social and educational aspects of the treatment of prisoners. The services are responsible, at specific locations, for all the tasks entrusted to the probation committees, the committees to assist released prisoners and the social and educational services of prisons.
176. This work, whose primary purpose is to assist persons in their efforts at rehabilitation, involves:
(a) In closed prisons: helping to mitigate the social isolation resulting from imprisonment and preserve social and family ties; and preparing measures for the individualization of penalties;
(b) In open prisons: helping to prepare judicial decisions of a penal nature and ensuring follow-up and monitoring.
177. A circular on social work methods (in open and closed prisons), currently being completed, should allow for a better insight into the social work already under way.
178. Failure to perform a contractual obligation is not punishable by deprivation of liberty under French law. Physical constraint in civil and commercial cases and against aliens was abolished by the Act of 22 July 1867. When a debtor is not in a position to fulfil a contractual obligation, the case is resolved by payment of damages.
179. Freedom to come and go within the national territory is recognized in French law; there is complete freedom of movement. Anyone can travel in France without administrative formalities of any kind and without being subject to any checks, irrespective of the extent of the travel and the purpose of the journey. The same is true when someone leaves his place of abode for good and settles somewhere else or, in other words, where there is a change of domicile. This principle of freedom is subject only to rare exceptions, which will be set out in connection with paragraph 3.
180. Movements of aliens within French territory are governed by special regulations laid down by the Decree of 30 June 1946, as amended by the Decree of 2 September 1994, concerning conditions for the entry and residence of aliens in France. Aliens are free to move within French territory, subject to a declaration in the case of a change of domicile. In exceptional cases, in the light of the attitude or background of the persons in question, the Ministry of the Interior may order surveillance measures, exclusively in respect of aliens temporarily residing in France.
181. Controls are performed by the national authorities at frontier crossings. French nationals must be in possession of an identity card or passport if so required by the country of destination. No exit visa is required for French nationals leaving the national territory.
182. The right to leave national territory is one of the essential components of freedom of movement, which is a constitutional principle. However, the administrative authorities are empowered, subject to close supervision by the administrative court, to refuse to issue a passport, pursuant to general legislation, in six cases: (a) to people who owe money to the Inland Revenue; (b) to persons under judicial supervision; (c) to persons convicted of procuring; (d) to drug traffickers; (e) to persons given an unsuspended sentence of ordinary imprisonment and who have failed to serve their sentence, or to persons on parole, if they have not been issued with a travel permit by the visiting magistrate, and (f) to persons whose travel abroad is likely to jeopardize national security or public order.
183. Where aliens are concerned, departure from French territory may be monitored on grounds of national security. In principle, all aliens, whatever their type of residence permit, may leave the national territory. However, nationals of certain States - the list of which is determined by a decision of the Minister of the Interior - are required to inform the administrative authorities of their intention to leave France, although this does not constitute prior authorization (Act of 24 August 1993, art. 29).
184. Travel by non-sedentary persons is regulated by Act No. 69-3 of 3 January 1969 concerning the practice of itinerant activities and the regime applicable to persons travelling in France without a fixed home or address. This Act was framed along liberal lines and introduced noteworthy improvements to the previous regulations, which dated from 1912. Persons who exercise an itinerant activity and who have a fixed domicile in France have simply to sign a declaration, which is renewable periodically. Persons having no domicile or fixed abode must be in possession of a travel permit and must choose a commune for administrative purposes. This commune has certain effects relating to domicile.
185. The freedom of movement of accused persons under judicial supervision and of persons subject to restricted residence is subject to certain limitations because of their status under the Penal Code.
186. A French national may not be deprived of the right to enter (or return to) France. Only the loss of nationality, as provided for by the Act of 22 July 1993 amending the Code of Nationality, may have such consequences.
(a) Loss of nationality on request
187. French nationals may lose French nationality at their request, in the following cases:
(i) A child who was not born in France and only one of whose parents is French (Civil Code, art. 18-1), or a child who was born in France, but only one of whose parents was himself born in France (Civil Code art. 19-4). In both cases, the child has the right to relinquish French citizenship in the 6 months preceding and the 12 months following his coming of age;
(ii) Persons of full age who are ordinarily resident abroad, who voluntarily acquire a foreign nationality and file a declaration with a view to loss of French nationality within not more than one year of the date on which the foreign nationality was acquired (Civil Code, art. 23). French males under 35 years of age may file this declaration only if they have complied with the military service requirements under the National Service Code or if they have been excused or exempted from them (Civil Code, art. 23-2);
(iii) French nationals, including minors, who have a foreign nationality may seek the authorization of the French Government to lose French citizenship. This authorization is granted by decree (Civil Code, art. 23-4);
(iv) The French spouse of an alien may relinquish French nationality if he or she has acquired the foreign nationality of his or her spouse and if the matrimonial residence is normally established abroad (Civil Code, art. 23-5).
(b) Loss of nationality through declaration by decree
188. A French national may be declared to have lost French nationality in the following cases:
(i) If he conducts himself, for practical purposes as the national of a foreign country and if he has the nationality of that country. The declaration will be made by a decree issued following confirmation by the Council of State (Civil Code, art. 23-7).
(ii) If, when holding a post in a foreign army or a foreign public service or in an international organization of which France is not a member or, in more general terms, when rendering assistance to them, he fails to resign from his post or desist in his assistance despite having been ordered by the Government to do so. The person concerned will be declared, by a decree of the Council of State, to have lost his French nationality if, within the period set by the order, which may not be less than a fortnight or more than two months, he has not ceased his activity. Should the opinion of the Council of State be unfavourable, the measure may be taken only by a decree of the Council of Ministers (Civil Code, art. 23-8). Application of these provisions is exceptional.
(c) Loss of nationality by judgement
189. Loss of French nationality may be registered by a judgement when the person concerned, being of French origin by filiation, does not have the corresponding status and has never been ordinarily resident in France and if the progenitors from whom he derived French nationality themselves have neither possessed French status nor had their residence in France within the past half century (Civil Code, art. 23-6). Moreover, in such cases, the person concerned will not be allowed to adduce evidence that he has French nationality by filiation (Civil Code, art. 30-3).
(d) Deprivation of French nationality
190. A French national who has acquired French citizenship may be deprived of French nationality in the following circumstances:
(i) If he is convicted of an act constituting a crime or offence against the security of the State;
(ii) If he is convicted of an act constituting a crime or offence covered and penalized by Book IV, Title III, Chapter II of the Penal Code; this chapter penalizes, in particular, persons, who, while being vested with public authority and acting in their official capacity, commit acts prejudicial to the authorities, for example by abuse of office;
(iii) If he is convicted of evading his obligations under the National Service Code;
(iv) If he has committed acts incompatible with French citizenship and prejudicial to the interests of France for the benefit of a foreign State;
(v) If he has been convicted in France or abroad of an act constituting a crime under French law and sentenced to a penalty of at least 5 years' imprisonment (Civil Code, art. 25).
Loss of nationality will be declared by decree following confirmation by the Council of State. Application of this provision is also highly exceptional and subject to very strict time limits.
191. Pursuant to the Council of Europe Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, which entered into force for France on 27 February 1965, French nationals who are of full age and who acquire of their own free will, by means of naturalization, option or recovery, the nationality of another contracting party, lose their former nationality. They may not be authorized to retain their former nationality.
192. The expulsion of an alien legally residing in France may be ordered when his presence constitutes a "serious threat to public order". The expulsion procedure is governed by the Ordinance of 2 November 1945, most recently amended by the Acts of 24 August and 30 December 1993. Expulsion is ordered by the Minister of the Interior and, in the overseas departments and territories, by the representative of the State. The law provides for a normal expulsion procedure and an emergency procedure.
193. Administrative case law has defined the concept of "a threat to public order" as being the result of the alien's personal and usual behaviour. It is, moreover, neither necessary nor sufficient for the alien to have been convicted on a criminal charge for an expulsion measure to be justified. Expulsion may be ordered only on the advice of a committee composed of three judges. An alien against whom an expulsion order has been issued is called before the committee to present his case. The proceedings of the committee are open to the public and the person concerned may be assisted by a lawyer, or by any other person of his choice, and by an interpreter.
194. Certain categories of persons may not be expelled:
(a) Aliens aged under 18;
(b) Aliens married for at least one year, whose spouse is of French nationality, provided they have not ceased to live together and that the French spouse has retained his or her French nationality;
(c) Aliens who are the father or mother of a French child residing in France, provided they exercise parental authority, or partial parental authority, over the child or support it;
(d) Aliens who can prove that they have been ordinarily resident in France since the age of 6;
(e) Aliens receiving an industrial accident or illness allowance from a French agency and whose level of permanent incapacity is equal to or higher than 20 per cent;
(f) Aliens who can prove by any means that they have been habitually resident in France for more than 15 years, and aliens who have been regularly resident in France for more than 10 years, unless, during this period, they have been issued with a temporary residence card showing them to be students;
(g) Aliens regularly residing in France on the strength of one of the residence permits provided for by the Ordinance of 2 November 1945 or international conventions, who have not been sentenced to a final unsuspended sentence of at least one year's ordinary imprisonment. However, aliens who have been given a final unsuspended sentence of any length for an offence covered or penalized by article 21 of the Ordinance of 2 November 1945, articles 4 and 8 of Act No. 73-548 of 23 June 1973, articles L 362-3, L 364-2-1, L 364-3 and L 364-5 of the Labour Code or articles 225-5, 225-6, 225-7 and 225-10 of the Penal Code may be expelled.
Finally, it should be emphasized that the aliens referred to in paragraphs (b), (c), (d) and (f) above, may be expelled if they have been given a final prison sentence of at least five years.
195. In time of emergency, expulsion may be ordered without any prior consultative procedure. Moreover, in cases of overriding necessity for State or public security, expulsion of all categories of aliens, with the exception of minors under the age of 18, may be ordered. Lastly, in time of emergency and of overriding necessity for State or public security, expulsion may be ordered, without any prior consultative procedure, against any category of aliens, with the exception of minors. As is the case with all administrative decisions, an expulsion order may be appealed in an administrative court within a period of two months. A stay of proceedings may be requested.
196. An alien who is unable to leave French territory immediately may, if necessary, be kept in premises not within the jurisdiction of the prison authorities, in accordance with an administrative decision explaining the grounds for such an arrangement and under judicial supervision. During this period, which may not exceed nine days in all, the person concerned may request the assistance of an interpreter, a doctor, and counsel, and may, if he so wishes, communicate with his consulate and with a person of his own choosing.
197. If an alien establishes that he is unable either to return to his country of origin or to go to any other country, he may be required to reside in a specific place, where he must report periodically to the police or the gendarmerie until a country of reception can be found for him.
198. An alien against whom an expulsion order has been issued may not return to France until the order is rescinded. An application to have an expulsion order rescinded after a period of five years from the date of its implementation may be rejected only on the advice of the committee, before which the person concerned may be represented.
Reservation to article 13
199. France has made a reservation to article 13 of the Covenant in respect, in particular, of the regulations applicable overseas, since geographical remoteness and the resulting special public safety problems have led, as is explained above, to government representatives in such regions being vested with some of the powers exercised in metropolitan France by the Minister.
200. The principle of equality is affirmed several times in the Declaration of the Rights of Man and of Citizens of 1789. Article 6 provides that the law "should be the same for all, whether it protects or whether it punishes". The same principle is affirmed in article 2 of the French Constitution.
201. Any person subject to French jurisdiction is thus entitled to present his case before the competent court, either in person or through a representative. A minor must be represented by his legal guardian. Adults may be placed under the protection of the court when their mental or bodily faculties are affected by illness, infirmity or weakness due to old age. Where one of these causes, while not preventing them from acting on their own behalf, makes it necessary for them to be advised or supervised in the conduct of their civil affairs, they may be placed under a system of guardianship.
202. Foreign minors enjoy the same rights and guarantees as all other minors residing on French territory. They may therefore benefit from court protection (educational welfare procedure), the goal of which is to protect children in danger and to solve the difficulties which hinder their normal development. This procedure, which takes place before a juvenile judge, is not intended to permanently arrange for a minor to live away from his family. It is flexible enough to allow the measures taken to be amended at any time, depending on circumstances and the child's development. The juvenile judge should nevertheless endeavour to secure the family's acceptance of the measure he intends. Various procedural guarantees are recognized vis-à-vis the minor and his parents.
203. Specific actions with regard to foreign minors have been taken by the external services for the legal protection of young people, together with the representatives of the French education system. For example, in several places, it has been possible, as part of municipal policy, to programme a special class for young gypsies in vocational schools and major efforts are being made to combat illiteracy effectively and encourage the integration of these young people into the school system.
204. All persons, even if not of French nationality, are entitled to appear before a court when they have suffered an infringement of their civil rights. When a person brings his case before a civil court or when he is to be tried by a criminal court, he must follow the procedures laid down to ensure the "proper administration of justice". These procedures are designed to ensure the fairness of the trial and the impartiality of the court.
205. Civil and criminal cases are tried by courts instituted by the State. In France, the creation of new types of court is within the competence of the legislature (Constitution, art. 34). Civil courts try private suits between individuals; criminal courts try criminal cases between the State and a person who, by his offence, has disturbed the social order.
206. All courts of the judiciary obey common rules in judging cases:
(a) The decision is usually pronounced by several persons (rule of collegiality);
(b) The same case, whether civil or criminal, may as a general rule be considered by two courts of different levels in succession (rule of the dual level of jurisdiction). This rule is discussed further in the comments on paragraph 5 of article 14 (see paras. 250-252 below);
(c) All decisions pronounced as final may be appealed on grounds of error before the Court of Cassation.
207. In criminal cases, the independence and impartiality of the court are guaranteed by the separation of the functions of prosecution and sentencing. The function of sentencing belongs exclusively to the criminal courts (police court, correctional court, Assize Court). The prosecution of the person who has committed the offence is entrusted to the Attorney-General, represented by the Public Prosecutor, who directs the activity of the judicial police officers responsible for the criminal investigation. In some cases (criminal procedures or procedures involving a minor), an examining magistrate must be appointed. In other cases, it is the Public Prosecutor who judges whether the nature of the acts requires preliminary proceedings to be initiated by an examining magistrate. In any case, a complainant may always file a claim for criminal indemnification with the senior examining magistrate and thus ensure the initiation of preliminary proceedings.
208. Article 64 of the Constitution of 4 October 1958 states the principle of the independence of the judiciary, of which the President of the Republic, assisted by the Judicature Council, is the guarantor.
209. In the case of trial judges, this independence is ensured by the rule of irremovability: no judge may be given a new assignment, even if it means a promotion, without his consent. Government procurators are answerable to their direct superiors and come under the authority of the Minister of Justice. However, during hearings they may speak independently. Judges and procurators are appointed by decree of the President of the Republic.
210. The Judicature Council, established by the Constitution, is concerned in particular with the appointment of magistrates, and submits a proposal (in the case of the judges of the Court of Cassation, the first president of the Court of Appeal or the President of a High Court), on approval (in the case of the other judges) or a simple opinion (in the case of the government procurators, with the exception of the procurators-general) to the President of the Republic.
211. In principle, there is no time limit to the appointment of judges other than the age-limit, which, with some exceptions, is 65. However, the reporting judges of the Court of Cassation - who only take part in decisions in cases on which they are required to report - are appointed for 10 years but can neither be renewed nor extended. At the end of this period, they receive another appointment in keeping with their wishes.
212. The Judicature Council is presided over by the President of the Republic; the Minister of Justice is vice-president ex officio and may replace the President of the Republic. It comprises two bodies, one with jurisdiction vis-à-vis trial judges and the other vis-à-vis government procurators.
213. Only the Minister of Justice may initiate disciplinary proceedings. The French Constitution of 4 October 1958, as amended by Constitutional Act No. 93-952 of 27 July 1993 lays down that disciplinary matters shall be dealt with by a single body whose membership varies, depending on whether a trial judge or a government procurator is involved. The adversary proceedings are conducted in camera.
214. The Judicature Council sits as the trial judges' disciplinary body. Its decisions may be appealed before the Council of State. When acting as the disciplinary body for the government procurators, the Judicature Council gives its opinion on the disciplinary measures to be taken. Appeals against the final decision, taken by the Minister of Justice, are heard by the Council of State.
215. As regards the recruitment of judges, the regulations for judges include the provision that candidates for the post of junior magistrate (the title given to trainee magistrates, who are in principle recruited by competitive examination, or in special cases on the basis of qualifications) should, inter alia, be of good moral standing.
216. French citizens of either sex who are over 23 years of age, can read and write in French, enjoy political, civil and family rights and do not come within any of the categories of disqualification or incompatibility laid down in the Code of Criminal Procedure (such as having been sentenced to certain penalties, holding specific public offices, etc.) can serve on a jury.
217. The assize jury is constituted by successive ballots:
(a) A first ballot is held annually, in public, by the mayors of the communes, on the basis of the electoral roll. After verification, persons drawn by lot who do not meet the requirements as to legal capacity are excluded.
(b) A second ballot, where every assize court sits, is held by a board composed, inter alia, of judges and local elected representatives who draw up an annual list of jurors, together with a special list of alternate jurors. Capacity to serve as a juror is again verified.
(c) A third ballot, at the opening of each session of the assizes, is held in open court to draw up the sessional list and the special list of alternate jurors for the session. This, too, is accompanied by a verification of legal capacity.
(d) A final ballot is held for each trial so as to select nine jurors. Both defence and prosecution have the power to challenge.
218. Hearings of criminal trial courts for adults are held in public and are, of course, open to the family of the defendant or the accused. The court may, however, order the hearing to be held in camera if it considers that a public hearing would be prejudicial to law and order or to morality. The decision is nonetheless always delivered in open court (Code of Criminal Procedure, art. 306). The presiding judge of the court can also forbid minors, or some of them, to enter the courtroom.
219. Hearings of the juvenile court and the juvenile assize court are held without the presence of the public, with the exception of close relatives. Decisions, however, are delivered in open court. Article 14 of the ordinance of 2 February 1945 concerning juvenile delinquents prohibits the publication of the report of the court proceedings in books, in the press, on the radio, in the cinema, or in any other form, and of all written texts or illustrations concerning the identity or personality of the juvenile delinquents. Thus the decision handed down at a public hearing may not be published unless the minor's name is carefully concealed.
220. The presumption of innocence is one of the basic principles of French penal procedure. It is one of the individual's basic rights. This principle is enshrined in article 9 of the Declaration of the Rights of Man and of the Citzen of 1789: "Every man is presumed innocent until he has been declared guilty", for which the French Constitution affirms its support. An accused person must therefore be considered innocent and treated as such until proof of his guilt is established.
221. The purpose of Act No. 93-2 of 4 January 1993 was to provide further guarantees in that respect. It introduced an article 9-1 into the Civil Code, whereby "everyone has the right to presumption of his innocence" and provides for a specific judicial mechanism which any person who has not yet been tried but has been publicly charged with the acts under investigation may use. Such a person may apply to a judge, even as an interim measure to have a notice inserted in the pertinent publication, in order to put a stop to the infringement of the presumption of his innocence, without prejudice to the possibility of additional damages proceedings.
222. From this principle stems a theory of proof as protective of the rights of the accused. First, proof must be established by the plaintiff or, in other words, by the public prosecutor, and by any claimant for criminal indemnification; it is for the prosecution to establish the legal and material existence of the offence, as well as the participation in that offence by the person being prosecuted. Secondly, at the inquiry stage, the evidence must be sufficient; in other words, the examining magistrate must discover and assemble not only unfavourable evidence, but also evidence favourable to the accused. In addition, if the trial court considers the evidence insufficient, it may order further information to be provided.
223. The type of evidence admissible is subject to certain limitations which will be described below in the comments on paragraph 3 (sect. 7, paras. 242-244). The judge is entirely free in assessing the evidence submitted to him; the only criterion is his "innermost conviction". If it is considered that the evidence produced is insufficient and that some doubt persists, the accused or defendant must be given the benefit of the doubt and must be acquitted or released.
224. It has already been stated in the comments on article 9 concerning security of persons how a person accused of a criminal offence is informed of the nature of, and the reasons for, the charge brought against him.
225. In addition, the Code of Criminal Procedure condemns the practice of bringing charges at a late stage, as when the examining magistrate hears as witnesses persons who may themselves have committed, or be accomplices to, the offence. The moment that there are serious indications of a person's guilt and there is a possibility that his being heard as a witness might deprive him of his rights as a defendant, the examining magistrate must no longer hear him as a witness but only as an accused and by examination (Code of Criminal Procedure, art. 105).
226. During the investigation procedure, at the "first appearance", the examining magistrate ascertains the identity of the accused and expressly acquaints him with each of the acts attributed to him. If the accused has already requested the assistance of a lawyer and the lawyer has been duly called in, the examining magistrate may proceed to examine him. In the other cases, the magistrate advises the accused of his right to choose a lawyer or to have a lawyer appointed by the court. The lawyer may immediately consult the case-file and may communicate freely with the accused. The examining magistrate then notifies the person that he may only be examined immediately with his consent, given in the presence of his lawyer. If, however, he wishes to make a statement, the examining magistrate will take it immediately.
227. Every bar has a panel of lawyers and trainee lawyers. A duly and officially assigned lawyer cannot refuse to act without a valid excuse or reason. The lawyers' code of conduct stipulates that "any infringement of the law and regulations, any breach of professional rules, any lack of integrity or decorum even in the case of acts not connected with the profession" renders any lawyer committing them liable to disciplinary measures and even disbarment. Disciplinary proceedings are held before the Bar Council to which the lawyer in question is answerable, with appeal lying to the Court of Appeal. Disputes over lawyers' fees are referred successively to the President of the Bar, the President of the High Court and the First President of the Court of Appeal.
228. If irregularities are committed during the investigation, particularly if there has been a violation of a substantive rule such as the rights of defence, measures of various kinds may be applicable: disciplinary, criminal, payment of damages and nullity (acts which are thus annulled must be removed from the record).
229. The Code of Criminal Procedure lays down a number of time limits, particularly for pre-trial detention, with a view to expediting procedures. Congested courts may, however