International Journal on Criminology Volume 3, Number 1, Spring 2015 | Page 20

A. A regime tinged with ambivalence
International Journal on Criminology
Although widely seen as synonymous with rigor, the legal framework surrounding
terrorist offenses leaves room in certain circumstances for hints of leniency. Therein lies its
ambivalence.
In terms of the formal structures, the rigor with which terrorist offenses are dealt
with begins at the enquiry phase, and continues through to the relevant limitation periods.
At the investigation and prosecution stage, the conduct of proceedings is made easier by
the ability to centralize all processes in Paris (Code of Criminal Procedure, art. 706-16),
with the main police services in charge of the fight against terrorism (the DGSI [General
Directorate for Internal Security] and the SDAT [Anti-Terrorism Sub-Directorate]) now
gathered together on a single site in Paris, at Levallois-Perret. In order to facilitate the pursuit
of terrorist offenses that are often clandestine, investigators—who can remain anonymous—
are empowered to carry out identity checks, conduct surveillance and infiltration operations,
as well as implement wire taps. They can use pseudonyms to participate in electronic
communications for the purposes of extracting, acquiring, or preserving through such
means evidence against persons likely to be involved in terrorist activity (Code of Criminal
Procedure, art. 706-87-1, in the version modified by the Law of November 13, 2014). With
a written requisition from the Procureur de la République [Public Prosecutor], investigators
can inspect vehicles traveling, stopped or parked on the public highway or in premises open
to the public (Code of Criminal Procedure, art. 78-2-2). In the same spirit, numerous specific
provisions are directed toward the prevention of any damage to the security of vulnerable
places such as ports and airports through the authorization of the police judiciaire [judicial
police, approximately comparable with the FBI] and customs officials to carry out searches
of persons, baggage, or vehicles found in the areas concerned.
Once the inquiry is open and the first suspects have been arrested, the latter may,
with prior judicial authorization, be held under arrest for 96 hours, twice the period normally
allowed in common law cases, with the possibility, in exceptional circumstances, of two
further days being added before they regain their freedom (Code of Criminal Procedure, art.
706-88). In cases where there is a serious risk of imminent terrorist action, or for overriding
needs of international cooperation, the "liberty and custody" judge can in effect prolong the
period of detention of a person suspected of participating in terrorist activity for a period of 24
hours, renewable once, thus potentially leading to a total of 144 hours of detention. Another
exceptional rule, applicable depending on how urgent the circumstances of the particular
case are, is that the intervention of the detainee’s attorney—when necessary, one designated
from a list of qualified persons by the President of the Bar Association (bâtonnier)—can be
delayed for a maximum of 72 hours (Code of Criminal Procedure, art. 706-88). In the case
of an extension of custody beyond four days, the suspect may again consult with an attorney
after 96 and 120 hours. At the beginning of each extension of custody, the suspect is required
to undergo a medical examination in order to determine the fitness of the person to be held
further in custody.
The procedure with regard to terrorism also diverges from common law when it comes
to search and seizure, which may be preceded, in specified circumstances, by the recording
of sound or images (Code of Criminal Procedure, art. 706-96). Under the authority of the
“liberty and detention” judge, such recordings can be made in the course of a preliminary
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