On January 7th 2015, two gunmen launched a terrorist attack on the French satirical magazine
Charlie Hebdo in Paris, shooting dead twelve people and injuring many
others. Among those killed were four well-known cartoonists, staff of
the weekly and two police officers.
This extremist Islamic attack took place almost 3 years after the magazine
had published caricatures of the Prophet Muhammad.
The two men managed to flee the premises by car, but were later identified
as Said and Cherif KOUACHI. The identity of a third man, Mourad HAMYD,
was also broadcast as allegedly linked to the events. However after this
man turned himself in, he was later released and his case dismissed.
The police kept searching for the Kouachi brothers before eventually killing
them two days after the attack in the printing complex where they had
taken a hostage.
After these dreadful events, the question arises : what would the terrorists
have faced in court if they had been caught alive?
The interesting point in this kind of case is that the facts fall into
the legal classification of terrorism, defined as acts aimed at seriously
disrupting public order by intimidation or terror.
These charges of terrorism lead to the application of a special procedure,
unofficially referred to as "a second procedure".
Firstly, whereas the usual rule of jurisdiction states the competent court
is the one where the facts have taken place, all the cases including acts
of terrorism charges fall within jurisdiction of the courts of Paris,
and therefore have to be prosecuted and tried there.
Secondly, a more obvious difference is that the statutory time limits of
any part of the procedure would be increased.
As an example, the alleged terrorists, like any offender who is arrested,
would have been taken into custody, and instead of the 24 hours normally
allowed (and renewable once), they could have been questioned for 144 hours.
Moreover, they would have had very different rights during that initial
period of custody. The person held in custody would normally be able to
ask for the assistance of an attorney. If asked for, the investigators
have had to wait for the attorney at least 2 hours before they could start
questioning the person in custody. When there are terrorism charges, however,
the prosecutor can ask the court to delay the assistance of the attorney
up to 72 hours.
For the most serious offenses, the ones where the sentences can be 10 years
or more, the procedure of judicial investigation is mandatory. At the
end of their initial custody period, if serious or convergent evidence
had been collected, the alleged terrorists would therefore have had to
have been brought before a "juge d’instruction", a magistrate
responsible for conducting this mandatory investigative phase that precedes
a criminal trial.
The length of this procedure varies greatly from a case to another, depending
on the charges, the complexity of the facts or the number of defendants.
During this phase, the alleged offender, still presumed innocent, can
be held in custody, for a maximum of 4 months in the less serious cases.
Once again, the procedure would have been quite different because of the
terrorism charges. The maximum duration for which the defendant can be
remanded in custody is 4 years and 8 months, bearing in mind that with
charges of terrorism, a bail offer is highly unlikely.
At the end of the judicial investigation, either the judge has gathered
sufficient evidence and refers the case to the court, or dismisses the case.
This case would have been referred to the ‘Assize’ court, which
specializes in the most serious offenses. There, the procedure would also
have been particular. Indeed, the composition of the court would have
differed from ordinary cases, as there would have been no jury. The terrorism
cases are brought before seven judges instead of three judges and six jurors.
The trial after follows the same rules as the usual procedure, and the
defendant is either found innocent or guilty, although to convict in these
cases, a simple majority of the judicial panel is needed instead of a
two third majority as is typical in criminal jury trials.
In the end, if the two terrorists had been found guilty and convicted,
they could have been sentenced to life imprisonment with mandatory jail term.
Even if the special procedure that applies to terrorism charges already
makes the prosecution so much easier than in other cases, the Charlie
Hebdo attack has nevertheless brought the idea of a "French Patriot
Act" back to the forefront.
Credit: Camille Molina-Brusley
criminal terrorism charges in France,
French criminal procedure,