In Dialogue with France, Committee on Enforced Disappearances Asks about Safeguards for People

OHCHR

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

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

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

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

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

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

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

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

Report

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

Presentation of the Report

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

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

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

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

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

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

Questions by the Committee Experts

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

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