France is increasingly clamping down on suspected terrorists to prevent further terror attacks. But legal experts say the government is eroding the rule of law. Lisa Louis reports from Paris.
France has passed 19 anti-terror laws since the 1980s, with four of them pushed through over the past two years. A separate anti-terror legislation has been set up with specialized judges.
The powers of the secret services have been widened, especially over the past two years. In matters of national security, listening in on citizens no longer requires the go-ahead from a judge. The government can more easily view internet traffic, and visiting websites that promote terrorism can be punished with up to two years in prison.
But that could be just the beginning - at least if former President Nicolas Sarkozy has his way. He is one of the top contenders to become the Republican Party's presidential candidate. And the party is, according to the latest polls, likely to win next year's presidential elections.
"Every French person who is suspected of having links with terrorists should be put in a detention center as a preventive measure," he said in a recent interview with weekly newspaper "Le Journal du Dimanche."
"Our Constitution stipulates the principle of precaution. Why would the fight against terrorism, i.e., for the security of the French, be the only area where this principle isn't being applied?"
Laurence Arribage, MP and member of Sarkozy's campaign team, affirms that such preemptive measures are needed: "We're at war and the terror threat in France is extremely high. We now have the choice between waiting for another terrorist attack to happen or trying to prevent it," she told DW.
She added that almost all the perpetrators of the terror attacks on French soil in the past two years had been known to the police. "We could have prevented some of the attacks from happening, if we had put the terrorists in detention centers beforehand."
'This would undermine the rule of law'
But many legal experts are worried about the prospects of a justice system based on precautionary measures. "This would mean people will be detained before committing any crime, just for having a certain idea or project, outside a formal criminal procedure and without judicial control," said Clemence Bectarte, a lawyer and coordinator of the litigation action group at non-governmental organization International Federation for Human Rights (FIDH).
"This would undermine the very idea of a state under the rule of law," she told DW.
Sarkozy's plans remind her of Steven Spielberg's movie Minority Report, where police use psychic technology to arrest and convict murderers before they commit their crime. Suddenly, the scenario no longer seems a far-off fantasy.
The first people locked up in such detention centers would likely be the so-called "S Records." These are the people the government suspects of being radicalized or having links to supposed terrorists - more than 10,000 names.
"But that list is on a shaky legal footing, as the suspicion often seems to rely on informal notes and opinions by the secret services and everything but solid evidence," says Amnesty International France's Dominique Curis.
The human rights NGO has been assisting numerous "S Records" that have been put under house arrest during the state of emergency. The exceptional regime was enacted shortly after the November 13 attacks last year and grants the executive branch more powers when it comes to issuing search warrants, prohibiting public gatherings and putting people under house arrest.
"With those nebulous justifications it's been extremely difficult for those under house arrest to defend themselves, because they just don't know what they are fighting against," Curis told DW.
Presumption of innocence?
She says it's as if the presumption of innocence had been dropped under the regime. "The government issues the house arrest order without having to go through the courts. So it's the people who are detained in this way who are having to file a suit to show that they are innocent, instead of the others having to show that the accused is guilty."
Amnesty International wants the state of emergency - currently scheduled to run out by next January - to end.
"It has only increased the powers of the executive and undermined the separation of powers, which is a fundamental principle of a constitutional state," said Curis.
But even within the judicial system there are wide-ranging powers to crack down on suspected terrorists. Some legal experts say the Minority Report scenario has long been rearing its head.
Under a law dating back to 1996, charges can be brought forward against people planning to carry out a terrorist attack, i.e., before an actual attack is committed. That needs to happen within the strict limits of a penal procedure based on "tangible elements" and the "beginning of an implementation" of a terror plot.
"The whole system is designed in a preemptive way to clamp down on possible attackers, instead of tackling the causes of terrorism, such as social exclusion," said Antoine Garapon, secretary general at the Paris-based think tank Institut des Hautes Etudes sur la Justice.
Crackdown on minors
And the extended powers increasingly seem to target minors.
A dozen underage suspects have been charged and put in preliminary custody over the past few weeks. They are accused of being in touch with jihadists on the messaging service Telegram and planning either on traveling to Syria or carrying out a terror attack in France.
Bruno Vinay represents one of them, a 15-year-old boy living near Paris. The lawyer acknowledges that his client has come under the influence of dangerous jihadists, but says the judges should have considered alternative sanctions to jail. That is the normal procedure when it comes to minors, as France has very protective juvenile law, Vinay explains. But terrorism seems to be an exception. The boy will stay in jail until his trial starts, which could be another two years.
"I don't think it's a good idea to let vulnerable youths shape their personality in prison. It's as if he has preventively been found guilty. This will certainly not deradicalize him," Vinay told DW.
Vinay adds that investigators couldn't find any tangible proof that his client intended to carry out a terror attack.
"He was put behind bars for having the wrong ideas and not for having done something. In a way, my client feels like a political prisoner."