International Journal on Criminology Volume 3, Number 1, Spring 2015 | Page 23

Terrorism and Criminal Law
term sentence, it can never exceed a third of the sentence pronounced. For the remainder,
the reduction of the sentence reaches its maximum at one third of the probation period
of 15 years (Code of Criminal Procedure, art. 729), after which conditional release may
be considered. Regardless of the place of arrest or place of residence of the terrorist, only
the Parisian jurisdictions for the enforcement of sentences (JAP (Juge de l'application des
peines—judge responsible for the enforcement of sentences), TAP (Tribunal de l'application des
peines—court responsible for the enforcement of sentences), and the Chambre de l'application
des peines (chamber responsible for the enforcement of sentences)) have authority in this
matter (Code of Criminal Procedure, art. 706-22-1, as modified by the Law of January 23,
2006). In addition to these mitigations of their punishments, those who offer up evidence
can now benefit, as in Italy and the English-speaking countries, from two types of protection
(Code of Criminal Procedure, art. 706-63-1). The first type is purely legalistic, and concerns
civil identity. Following a reasoned order from the President of the Paris Tribunal de grande
instance [High Court] (or of the First President of the Paris Court of Appeal in the case of
a refusal to proceed on the part of the President of the Paris Tribunal de grande instance),
those who “collaborate with the authorities” and their close family can be authorized to use
an assumed identity. This authorization cannot be revoked, but it can be withdrawn in the
hypothetical situation where it is deemed no longer necessary, or if its beneficiary adopts
behavior incompatible with the implementation and appropriate operation of said measure.
The second form of protection concerns physical security and the social reintegration of
the individuals concerned. All such measures (police protection, payment of compensation
where the person is unable to work, and so on), which are very useful in practice, fall within
the competencies of a national commission working alongside the Minister of the Interior—
the Commission nationale de protection et réinsertion [National Commission for Protection
and Reintegration]—the composition, remit, and modes of operation of which are detailed in
a very recent decree issued by the Council of State (decree No. 2014-346, of March 17, 2014,
relating to the protection of persons mentioned in art. 706-63-1 of the Code of Criminal
Procedure who receive exemptions from or mitigation of their penalties). The measures are
implemented by SIAT, the Service interministériel d’assistance technique [Interministerial
Technical Support Service], whose decisions are not subject to appeal, and must be obeyed
by all administrative bodies and organizations with a public service function.
B. A system showing signs of administrative overlap
Although the war against terrorism relies on an arsenal of repressive measures that
can regularly adapt to the evolving threat, criminal law has not yet exhausted the range of
legal options put in place against this modern-day threat. In addition to the apparatus of
criminal law, there is an increasing battery of administrative measures available. The scope,
combination, and ongoing nature of them are not without risk to the fragile relationship
between liberty and the protection of the public. The apparent consensus across the political
spectrum regarding this “doubling up” of official measures is a legitimate source of concern
for various reasons. Firstly, it affects a number of fundamental rights, such as freedom of
movement, freedom of expression, property rights, and the right to privacy. Secondly, it
escapes judicial authority, the principal purpose of which is to act as the “guardian of the
freedom of the individual” (art. 66 of the French Constitution). Thirdly, when the authorities
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