This article was originally published on hrw.org on 10 October 2014.
A counterterrorism bill before the French parliament would provide overly broad and vague powers that would breach rights to free movement and expression, Human Rights Watch said today. The bill, proposed by the French government in July 2014 under an accelerated procedure, was adopted by the National Assembly in September and is now before the senate.
The bill would introduce new measures such as barring anyone from leaving France who the authorities suspect would participate in terrorist activities or threaten national security on their return. The bill would also criminalize “searching, obtaining or making” material that could be used in an “individual terrorist undertaking” and allow the government to block websites deemed to “incite” or “glorify” terrorism.
“The French government already has very broad powers to combat terrorism,” said Izza Leghtas, Western Europe researcher at Human Rights Watch. “To prevent injustice, French parliamentarians should reject new measures that would expand those powers even further.”
These measures raise serious concerns because they significantly expand the government's counterterrorism powers but are subject to vague and broad standards of evidence and insufficient due process safeguards, Human Rights Watch said. The result would be restrictions on fundamental rights to an extent wholly unnecessary and disproportionate to the purported aim of the measures.
The bill would allow the government to ban French nationals from leaving the country on very broad grounds that could breach their right to free movement under international human rights law. Under article 1, the interior minister could bar people from leaving France if there are “serious reasons to believe” they are planning to go abroad with the aim of “participating in terrorist activities, war crimes or crimes against humanity” or if authorities suspect they are traveling to a place where terrorist groups operate and in conditions conducive to their posing a threat to public safety upon their return to France. Once a decision is made, the person's passport would be withdrawn and the person would be prevented from leaving the country.
In a recent opinion on the bill, the National Consultative Commission on Human Rights (Commission Nationale Consultative des Droits de l'Homme, CNCDH) noted that in practice the decision to ban someone from leaving France would be based on “notes” from intelligence agencies that may be secret and that the person concerned would not be able to challenge. The commission expressed concern that “such a serious interference to the freedom to come and go could be based on exclusively subjective assessments.”
Under article 12 of the International Covenant on Civil and Political Rights (ICCPR), to which France is a party, everyone has a right to leave any country, including their own. Any restrictions on that right must be provided by law; necessary for national security, public order, public health or morals, or the rights or freedom of others; and proportionate to achieving that aim. By enabling the government to bar people from leaving France on such broadly and vaguely worded grounds, the bill does not meet the requirements of proportionality under article 12 of the ICCPR.
Under the bill, a person could challenge a decision to restrict their right to free movement before the interior minister or the minister's representative. Anyone subject to such a restriction should have the opportunity to challenge the evidence on which it is based, be represented by a lawyer of their choice, and have the right to appeal before a court of law, Human Rights Watch said.
The bill would also create a new criminal offense of “searching, obtaining or making” as part of an “individual terrorist undertaking” objects or substances to prepare a terrorist act. The human rights commission noted that the bill would criminalize “the preparation of the preparation” of the offense. The lack of clarity could lead to someone facing criminal charges for conduct the person could not know was unlawful. Such a provision would breach the principle of legality and the presumption of innocence under French and international law.
Human Rights Watch research has found that the existing criminal offense in France of “criminal association in relation to a terrorist undertaking,” based on a broad definition that allows the authorities to intervene long before any offense has been committed, has already led to people being charged and convicted on the basis of weak and circumstantial evidence. There is a real risk that the offense of “individual terrorist undertaking” under the new bill would lead to similar abuses.
Under article 4 of the bill, the existing criminal offenses of publicly “inciting” or “glorifying terrorism” would be removed from the French press law of 1881 and included in the criminal code. These terms are overly broad and can lead to breaches of the right to freedom of expression, capturing speech that has no direct causal link to a terrorist act, Human Rights Watch said.
The bill would make France's counterterrorism procedure, which the human rights commission has described as “particularly in breach of fundamental rights and freedoms,” applicable to those offenses. Under the current law, “incitement to” or “glorification of” terrorism are punished by up to five years in prison and a fine of up to €45,000. The bill would increase the punishment to up to seven years and a €100,000 fine if the “incitement” or “glorification” is conducted online.
Article 9 of the counterterrorism bill would allow the government to block websites that “incite” or “glorify” terrorism without prior, independent judicial authorization. While freedom of expression can be restricted on grounds of national security, under article 10 of the European Convention on Human Rights and article 19 of the ICCPR, any such restrictions must not only be necessary to achieve that aim but must also be proportionate. There is a real risk that this provision would deter free expression through a chilling effect, while being ineffective at addressing recruitment, Human Rights Watch said.
The French bill could also be used by abusive governments in other countries to justify censorship of websites that criticize government officials or express views different from theirs, or where government critics are readily labelled as “terrorists.”
The National Digital Council, an independent administrative commission that advises the government on issues relating to digital technologies, expressed concern about the practical implications of article 9, noting that a server hosting a site in breach of the law might also host legal sites that would be affected by the ban, raising serious questions about the proportionality of such blocking measures. The council also pointed to the possibility that Internet blocking could be circumvented, raising questions about the effectiveness and necessity of such measures to address terrorist recruitment. These concerns are exacerbated in the absence of independent judicial oversight, Human Rights Watch said.
“The French government has a duty to keep people safe, but it also has a duty to protect human rights,” Leghtas said. “It should give parliament time to make sure the necessary safeguards are in place, rather than push this legislation through an accelerated procedure that doesn't allow enough time for a genuine debate.”
France: Counterterrorism bill would breach free movement, expression
This article was originally published on hrw.org on 10 October 2014.