GE.08-13216 (E) 140508 140508
A
General Assembly Distr.
GENERAL
A/HRC/WG.6/2/FRA/1 2 May 2008
ENGLISH
Original: FRENCH
HUMAN RIGHTS COUNCIL
Working Group on the Universal Periodic Review Second session
Geneva, 5-16 May 2008
NATIONAL REPORT SUBMITTED IN ACCORDANCE WITH PARAGRAPH 15 (A) OF THE ANNEX TO HUMAN RIGHTS COUNCIL RESOLUTION 5/1∗
France
∗ The present document was not edited before being sent to the United Nations translation services.
CONTENTS
Paragraphs Page
I. PREPARATION OF THE REPORT: METHODOLOGY ... 1 3 II. DOMESTIC POLICY ON THE PROMOTION AND
PROTECTION OF HUMAN RIGHTS ... 2 - 4 3 A. National framework for the protection of human rights ... 5 - 21 3 1. General description ... 5 - 10 3 2. International obligations of France ... 11 - 15 5 3. Transposition of international commitments
on human rights ... 16 - 21 5 B. Achievements, best practices, challenges and constraints:
thematic analysis ... 22 6 1. Freedom of religion or belief ... 23 - 26 7 2. Combating all forms of discrimination and
associated intolerance ... 27 - 42 8 3. Freedom of expression, freedom of information,
freedom of the press ... 43 - 44 10 4. Women’s rights ... 45 - 62 10 5. Rights of the child ... 63 - 74 13 6. Sound administration of justice ... 75 - 80 15 7. Conditions of detention and the prevention of torture ... 81 - 100 16 8. Respect for human rights while countering terrorism ... 101 - 104 20 9. Rights of asylum-seekers and refugees ... 105 - 111 20 10. Countering exclusion ... 112 - 116 22 III. FRANCE’S INTERNATIONAL POLICY ON THE PROTECTION
AND PROMOTION OF HUMAN RIGHTS ... 117 - 124 22 IV. ADDITIONAL PLEDGES ... 125 24
I. PREPARATION OF THE REPORT: METHODOLOGY
1. The report of France under the Universal Periodic Review was prepared in two stages:
(a) Phase 1: a tentative framework was developed by the Ministry of Foreign Affairs, based on the information and recommendations received from the international human rights mechanisms and the input provided by the National Consultative Commission for Human Rights (CNCDH);
interministerial consultations were carried out, and independent agencies and institutions
responsible for monitoring observance of human rights were also consulted; meetings were held with the main civil society organizations and associations, trade unions and representatives of religious movements involved in promoting and protecting human rights; and a contribution was submitted by CNCDH;
(b) Phase 2: the report was compiled by the Ministry of Foreign Affairs, in liaison with the competent ministries; a formal consultation was held with CNCDH; and the final version of the report was validated by the Office of the Prime Minister.
II. DOMESTIC POLICY ON THE PROMOTION AND PROTECTION OF HUMAN RIGHTS
2. Human rights are among the founding values of the French Republic. Respect for human rights is central to the exercise of democracy in France and to our commitment as a member of the European Union. France’s tradition of commitment to human rights dates back to the philosophy of the Enlightenment and the Declaration of the Rights of Man and of the Citizen adopted
on 26 August 1789. France was one of the first nations to draft a declaration of universal rights.
3. It was also in Paris, at the Palais de Chaillot where the General Assembly of the United Nations was being held in 1948, that the Universal Declaration of Human Rights was adopted. One of the main architects of the Declaration was an eminent French jurist, René Cassin, who would go on to become Chairperson of the United Nations Commission on Human Rights, President of the European Court of Human Rights and a Nobel Peace Prize Laureate. France was also actively involved in drafting international instruments on human rights and international humanitarian law, as well as those adopted by ILO and UNESCO in their areas of specialization, and at the regional level by the Council of Europe and the Organization for Security and
Co-operation in Europe (OSCE). In keeping with the spirit of the World Conference on Human Rights held in Vienna in 1993, France considers that the promotion and protection of all human rights are a legitimate concern of the international community, and gives equal consideration to civil and political rights and to economic, social and cultural rights.
4. France’s political commitment to human rights is reflected in the appointment in 2007 of a Minister of State for Foreign Affairs and Human Rights and a High Commissioner on Active Solidarity against Poverty, whose tasks include combating extreme poverty, and in its creation of the post of Human Rights Ambassador in 2000.
A. National framework for the protection of human rights 1. General description
5. The Constitution of the Fifth Republic, adopted in 1958, emphasizes the importance of human rights by incorporating the Declaration of the Rights of Man and of the Citizen of 1789 and the
preamble to the Constitution of 1946. With the amendment of 24 February 2007, the principle of abolition of the death penalty in all circumstances was enshrined in the Constitution (new
article 66-1).
6. The French institutional framework is designed to protect human rights within a pluralistic democracy and a State based on the rule of law and the separation of powers. Under the
Constitution, only the parliament is competent to lay down rules relating to fundamental guarantees.
The Constitutional Council verifies the constitutionality of laws. The two types of court - the ordinary courts and the administrative courts - ensure that legal principles and France’s international obligations are complied with at all levels. In accordance with the principle of separation of powers, the judicial authority is the “guardian of individual liberty”.1
7. “Independent administrative authorities” or other independent bodies have been set up in France to protect citizens’ rights. These include the Ombudsman of the Republic,2 the National Consultative Ethics Committee (CCNE), the National Commission on Information Technology and Civil Liberties (CNIL),3 the National Security Ethics Committee (CNDS) and the Children’s
Ombudsman.4 The establishment of the High Authority against Discrimination and for Equality (HALDE) in 2006 was an important step forward, as was the Act of 2007 establishing the office of controller-general of places of deprivation of liberty. Other institutions have been set up in France to protect people in vulnerable situations from infringements of their rights; these include the Inter-ministerial Mission to monitor and combat abuse by sects (MIVILUDES).5
8. The Act of 5 March 2007 and its implementing decree strengthened the status of the National Consultative Commission for Human Rights (CNCDH), which was involved in setting up most of the specialized bodies referred to above, and works closely with those with similar areas of
competence to its own. In 2007 it obtained re-accreditation in accordance with the Paris Principles from the International Coordinating Committee of National Human Rights Institutions (ICC). The Commission is tasked with submitting initiatives and proposals and carrying out monitoring, follow-up and awareness-raising activities with regard to both the public authorities - Government and parliament - and the public.
9. Human rights education is vital if citizens are to be aware of their rights. It is dispensed through curricula and educational activities based on the Universal Declaration of Human Rights and the fundamental treaties. For example, civics is taught in the primary and middle school curricula, and civics, law and social studies are taught in high school.
10. These are supplemented by other educational activities organized on an occasional basis.
Since 1988, the René Cassin Human Rights Prize has been awarded by the CNCDH and the
Directorate of School Education for the best projects on a human rights theme submitted by middle and high school pupils. The prize may also be awarded for projects on the memory of the slave trade and slavery. To mark the sixtieth anniversary of the Universal Declaration of Human Rights, the subject of the prize for 2008 is “1948-2008: the Universal Declaration of Human Rights today”.
As part of the planned programme of educational activities for 2007-2008, schools are encouraged to take part in national and international awareness days on human rights. This year,
awareness-raising activities in schools have focused on the sixtieth anniversary of the Universal Declaration of Human Rights. Lastly, CNIL has worked closely with the Ministry of National Education and the Children’s Ombudsman to plan human rights awareness activities in schools on the subject of protection of personal data.
2. International obligations of France
11. France has ratified the main international legal instruments on human rights: the International Covenant on Civil and Political Rights and its two Optional Protocols; the
International Covenant on Economic, Social and Cultural Rights; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol; the Convention on the Rights of the Child and its two Protocols; the Geneva Conventions and their additional Protocols; the
Convention relating to the Status of Refugees; the Convention on the Prevention and Punishment of the Crime of Genocide; and the Rome Statute of the International Criminal Court. It has also
ratified many of the fundamental international labour conventions, as well as those adopted under the auspices of UNESCO. Representatives of civil society and CNCDH have drawn attention to the length of time taken for ratification or transposition of certain treaties.
12. France signed the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2005, and the International Convention for the Protection of All Persons from Enforced Disappearance and the Convention on the Rights of Persons with Disabilities in 2007.
13. Protection of migrant workers is a legitimate concern to which the French Government is attentive. During its presidency of the European Union, France will push for a European covenant on immigration to remedy the differences in treatment between countries while ensuring respect for human rights. However, at this stage France is not in a position to envisage adhering to the relevant United Nations Convention, for two reasons: (a) the Convention does not draw a distinction
between regular and irregular migrant workers; this does not encourage legal residence; and (b) France can only sign the Convention jointly with its European partners.
14. In addition, France is a party to regional legal instruments. These include the European Convention for the Protection of Human Rights and Fundamental Freedoms and numerous additional Protocols, as well as specialized treaties, such as the European Social Charter and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. In accordance with the European Convention on Human Rights, France is subject to the jurisdiction of the European Court of Human Rights in Strasbourg, which is competent to examine individual applications. As a member State of the European Union, France is also subject to the jurisdiction of the Court of Justice of the European Communities in Luxembourg.
15. Respect for human rights and fundamental freedoms is one of the commitments that France has accepted under the Helsinki Final Act of 1975 and the Charter of Paris for a New Europe adopted in 1990.
3. Transposition of international commitments on human rights
16. As regards France’s implementation of its international obligations, at the time of writing the following legal instruments were in the process of ratification: the Convention on the Rights of Persons with Disabilities, the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Convention for the
Protection of All Persons from Enforced Disappearance. Having worked for the adoption of the latter Convention for nearly 30 years in the United Nations, France has promoted the creation of a Group of Friends of the Convention.
17. The French authorities regularly review the French Government’s reservations and
declarations regarding international human rights instruments in order to determine whether they should be withdrawn or amended.
18. France cooperates fully with international procedures and mechanisms for the promotion and protection of human rights. In that spirit, it has issued a standing invitation to the United Nations special procedures. France was recently visited by the Special Rapporteur on the sale of children, child prostitution and child pornography (2002), the Special Rapporteur on freedom of religion or belief (2005) and the Independent expert on minority issues (2007). In 2008, it submitted a national report to the Committee on the Elimination of All Forms of Discrimination against Women, and will present reports to the Committee on the Rights of the Child, the Committee on Economic, Social and Cultural Rights and the Human Rights Committee. It also replies to requests for additional information from the treaty bodies under their follow-up procedures. According to CNCDH, more systematic follow-up to the recommendations made by these bodies should be assured.
19. France has also received visits from independent institutions of the regional organizations of which it is a member: the Commissioner for Human Rights of the Council of Europe (visit report issued in 2006, ad hoc visit in January 2008); the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (end of 2006); the three
representatives of the Chairman-in-Office of OSCE on combating anti-Semitism and intolerance and discrimination against Muslims and Christians (2005); and the OSCE High Commissioner on National Minorities. France also recently welcomed an election observation mission of the Office for Democratic Institutions and Human Rights (May 2007 presidential elections).
20. At the national level, parliament adopted the Act of 30 October 2007 creating the office of controller-general of places of deprivation of liberty, in accordance with the requirements of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, signed by France on 16 September 2006. The controller-general of places of deprivation of liberty is tasked with “supervising the conditions in which persons deprived of their liberty are held” in order to ensure that their fundamental rights are respected. Such
supervision is carried out in prisons, police custody facilities, administrative holding centres and facilities for foreigners, holding areas and psychiatric hospitals. The decree implementing the Act was published in March 2008, and a controller should be appointed soon.
21. Lastly, it should be noted that CNCDH and the Ombudsman of the Republic are members of the network of national correspondents of the Council of Europe, which promotes cooperation between national institutions and the Commissioner for Human Rights on issues within the latter’s remit. A pilot project on improving the execution of the judgements of the European Court of Human Rights is currently being carried out within this framework.
B. Achievements, best practices, challenges and constraints: thematic analysis 22. The Constitution of France is founded on human rights and the principles of national
sovereignty. Thus, “France shall be an indivisible, secular, democratic and social republic. It shall ensure the equality of all citizens before the law, without distinction on grounds of origin, race or religion. It shall respect all beliefs. It shall be organized on a decentralized basis” (art. 1). The French concept of fundamental rights fully embodies the freedom and equality of every man and woman, while recognizing individual and universal rights that are the same for everyone, without distinction or discrimination of any kind. Accordingly, France has always held that members of
minorities should enjoy all human rights fully, but that collective rights should not be granted to groups or communities identified as such along ethnic, cultural or religious lines. For over a century, secularism - that is, the separation of Church and State - has been the best guarantor of religious concord and civil peace, allowing each individual freedom of conscience, the freedom to believe or not to believe, while ensuring “respect for all beliefs” in a spirit of pluralism and tolerance.
1. Freedom of religion or belief
23. Freedom of religion or belief has been legally recognized in France since the Declaration of the Rights of Man and of the Citizen was adopted in 1789. The French Republic guarantees the free practice of religion, but does not recognize any religion in particular. French secularism does not mean indifference or abstention, as freedom of conscience is recognized and must be ensured by the Republic: the administration is responsible for the practical implementation of the rights and
freedoms granted by the law. Article 1 of the Act of 9 December 1905 on the separation of Church and State provides that “the Republic shall ensure freedom of conscience. It shall guarantee the free practise of religion, subject only to restrictions imposed in the interests of public order”. The Act recognizes the right of each individual to practise a religion and form religious associations to cover the costs of maintaining religious life and ensuring the public practice of religion.
24. The French authorities maintain regular dialogue at all levels with the institutions representing religious communities. The Prime Minister, in his official capacity, regularly receives
representatives of religious communities. In 2004 the French Council for the Muslim Faith (CFCM) was established, as an association under private law whose officers are elected by places of
worship. The public authorities do not interfere in the organization of religious communities, but they do need representatives with whom to engage in effective dialogue on matters of common interest. It should be noted that, owing to particular historical circumstances, the system was adapted to preserve the special status of religions in Alsace-Moselle.
25. The Act of 15 March 2004 prohibiting the wearing of conspicuous religious symbols in State schools - primary and secondary - was intended to reaffirm the principle of secularism, which guarantees freedom of conscience and protects the freedom to believe or not to believe, while ensuring that all individuals are free to express and peacefully live their faith and to practise their religion. It is also aimed at avoiding any discrimination, in particular against girls, in all school activities. The Act was adopted after wide-scale public debate led in particular by an independent commission. “Conspicuous religious symbols” means symbols and dress the wearing of which is tantamount to excessive religious proselityzing. Discreet signs of religious affiliation, however, are authorized. The Act provides for a phase of dialogue, as the President of the Republic recalled in 2003: “In the implementation of the Act, dialogue and concertation should systematically be pursued before taking any decision.” Priority is thus given to dialogue and a pedagogical approach.
In extreme cases, exclusion does not deprive the persons concerned of the right to education, since they still have the option of distance learning or enrolment in private religious or non-religious education.
26. The main provisions of the Act are now applied consistently across the country and have met with broad consensus, leading to the conclusion that they have not resulted in an increase in
Islamophobia or stigmatization of the headscarf. Since the entry into force of the Act, administrative tribunals have issued 31 rulings, all of which have rejected appeals for the revocation of final
decisions to exclude pupils pursuant to the Act. There are no other rulings currently pending before the administrative tribunals. The application of the Act was accompanied by a wide-scale
information, discussion and mediation campaign, which explains the small number of court cases.
The Council of State upheld the administration’s interpretation of the Act of 15 March 2004, to the effect that dress that is not in itself religious may nonetheless conspicuously manifest religious affiliation if such dress is not discreet and the pupil always wears it and obstinately refuses to relinquish wearing it.
2. Combating all forms of discrimination and associated intolerance6
27. France is committed to combating all forms of discrimination. Article 21 of the Charter of Fundamental Rights of the European Union enshrines the prohibition of any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth,
disability, age or sexual orientation.
28. The CNCDH submits a report on efforts to combat racism and xenophobia to the
Prime Minister each year on the occasion of the International Day for the Elimination of Racial Discrimination, in accordance with the Act of 13 July 1990 providing for the punishment of all racist, anti-Semitic or xenophobic acts.
29. In recent years France has passed legislation aimed at stepping up efforts to combat racial discrimination (including the Act of 16 November 2001 concerning measures to
combat discrimination, the Social Modernization Act of 17 January 2002, the Act of 9 March 2004 on the adaptation of the system of justice to developments in the area of crime, and the Act
of 21 June 2004 on confidence in the digital economy).
30. The High Authority against Discrimination and for Equality (HALDE), established by the Act of 30 December 2004, has been given a remit to: tackle acts of direct or indirect discrimination prohibited by law; provide all necessary information; support victims; and identify and promote good practices to give effect to the principle of equality. It may examine issues on its own initiative, or at the request of any citizen or association, and has investigative powers.
31. The National Agency for Social Cohesion and Equal Opportunities (Acsé), established by the Act of 31 March 2006 on equal opportunities, for which the Ministry of Immigration, Integration, National Identity and Co-Development and the Ministry of Housing and Municipal Affairs have joint responsibility, works to support the implementation of public policies to prevent racial discrimination and promote equal treatment. Its objective is to increase the effectiveness of: State measures to support the inhabitants of priority areas identified in municipal policies; integration of immigrants and persons of immigrant origin; and efforts to combat discrimination.
32. Discrimination testing has been given legislative backing,7 after the Criminal Division of the Court of Cassation ruled that it could be admitted as evidence in regard to racial discrimination.
(a) Combating all forms of discrimination
33. Legislation was strengthened by the Act of 9 March 2004 on combating all forms of discrimination and by more severe punishment of racist crimes and offences, and discrimination, especially when committed by persons vested with public authority. Racist, xenophobic or
anti-Semitic motives have been established as an aggravating circumstance for certain crimes and offences.8 The time limits for prosecution of offences of a racist or anti-Semitic nature carried out in the press have been extended in order to facilitate prosecution.
34. A draft law bringing a number of provisions into line with Community law on discrimination was submitted to the National Assembly on 19 December 2007 and will be examined in 2008. For civil cases, the text is innovative in that it shifts the burden of proof in a way that is more favourable to persons claiming that they have been subjected to discrimination.
35. Several bulletins and circulars9 have been sent to public prosecutors’ offices, instructing them to deal with these claims severely and swiftly, and the Ministry of Justice has given instructions for the inclusion of anti-discrimination principles in criminal policies. To this end they have been asked to raise the awareness of senior law enforcement officers and to cooperate with stakeholders from associations.10 As a result, the judicial response rate for racist crimes or acts of discrimination has risen.
36. In order to boost efforts to combat racism and discrimination, the Minister of Justice requested anti-discrimination units to be set up within each regional court (tribunal de grande instance), to be headed by a “reference officer” (magistrat référent)11 with responsibility for carrying out initiatives at grass-roots level in close coordination with the various associations with expertise in this area. The Minister of Justice also requested that a representative of the public prosecutor, with specialist knowledge of anti-discrimination issues, should be appointed in each unit, where possible in conjunction with the local network of associations.
(b) The establishment of structures to improve monitoring of the judicial system
37. A bulletin dated 18 November 2003 requested each public prosecutor (procureur général) to designate a reference officer (magistrat référent) in each public prosecutor’s office for racism and xenophobia, with responsibility for monitoring the consistency of local policies on crime and
maintaining regular contact with the local network of associations, particularly cultural associations.
38. On 14 December 2007 the Minister of Justice signed two framework-agreements12 in order to step up efforts to combat discrimination. They provide for stronger partnerships between
stakeholders from institutions and associations and the development of training in this area. The Ministry of Justice issued practical guides on criminal provisions designed to combat racism, anti-Semitism and discrimination.
39. For initial training of trainee judges, the Legal Service Training College (ENM) is developing a number of training activities that are linked, directly or indirectly, to measures to combat racism and anti-Semitism. In December 2006 the College held a seminar in Paris on the subject of racism and anti-Semitism in France, focusing in particular on their contemporary manifestations.
(c) Prevention of discrimination in the labour market, promotion of diversity and prevention of discrimination in the areas of employment and access to housing
40. The problems that immigrants and persons of immigrant origin experience in gaining access to employment are often a result of direct or indirect discrimination, meaning that candidates with the same qualifications are not given equal consideration, and illegal practices or factors determine the choice that is made, thus sidelining immigrants or persons of immigrant origin. In 2008 the Government, through the National Agency for Social Cohesion and Equal Opportunities (Acsé), will continue its work of developing measures aimed at improving access to civil-service posts and supporting development of the diversity charter,13 in conjunction with enterprises, professional associations, trade unions and consular offices. In regard to access to housing, Acsé has signed
agreements and framework-agreements with key national figures with the aim of preventing and combating discrimination, by establishing local action plans and regional plans for preventing and combating discrimination.
(d) Combating discrimination against “travellers”
41. In line with the recommendations made to the Government by national or international institutions pointing to the difficult situation faced by “travellers”, France is endeavouring to provide better protection to “travellers”. Travellers’ consultative commissions have been
established at national and departmental level,14 made up of representatives of the authorities and civil society, in particular travellers. There are still problems with the implementation of existing instruments, arising in particular from the insufficient application at local level of the Act
of 5 July 2000 on the reception and housing of travellers.
42. With regard to the right to education, a Ministry of Education circular dated 25 April 2002 recalled that ordinary law applied to all travellers’ children. They are required to attend school, regardless of the length of stay and location where they are living, and must comply with the same rules on attendance as other pupils. A national survey (2003) showed an increase in school
attendance, which varied according to regional education authority, and was especially marked at lower secondary school level. Children whose families have set up their quarters a long way from any school structure, or who travel a great deal, may benefit from 1 of the 42 mobile school units.
Intermediary mechanisms exist to provide a “bridge” to the standard curriculum. In each regional education authority an inspector/coordinator is tasked with facilitating, at local level, the
enforcement of legal instruments and there are special teachers and special posts to support travellers in many regional educational authorities.
3. Freedom of expression, freedom of information, freedom of the press
43. The principle of freedom of expression is established in French law, under article 11 of the Declaration of the Rights of Man and of the Citizen of 1789, and included in the preamble to the Constitution. The Act of 29 July 1881 on freedom of the press, which is an essential component of freedom of expression, protects the exercise of this freedom. In the same way as any public
freedom, freedom of expression and freedom of the press are unlimited, except where they constitute abuse, which is defined explicitly in legislation (defamation and insults; invasion of privacy; violation of the presumption of innocence; protection of victims of offences and minors;
incitement to commit certain offences; denying the existence of crimes against humanity; protection of the judiciary and of national defence.
44. The right of journalists not to reveal their sources is necessary to guarantee citizens’ freedom of information. On 12 March 2008 the Minister of Justice submitted draft legislation to protect the confidentiality of journalists’ sources, which will supplement the Freedom of the Press Act of 1881 and firmly enshrine this principle in French law: it is now officially linked to the constitutional principle of freedom of the press and provides guarantees in the framework of legal proceedings likely to undermine the confidentiality of sources.
4. Women’s rights
45. Since 1965 French legislation has included gender equality in all principles governing marriage, divorce and the exercise of parental authority: elimination of inequalities affecting
women in matrimonial regimes; complete equality between fathers and mothers in bringing up their children; Act of 6 June 2000 on promoting equal access of women and men to electoral mandates
and elected office boosted by the Acts of 11 April 2003 and 31 January 2007; Acts of 4 March 2002 and 18 June 2003 amending the system for passing on the family name in order to facilitate
transmission of the mother’s name;15 order of 4 July 2005 reforming the system of filiation.
46. On 8 March 2004 the Minister for Parity submitted to the Prime Minister the Charter on the Equality of Men and Women. This initiative involves close to 100 public and private actors in the promotion of an integrated approach to equality in all activities undertaken. The Charter, which has five main themes,16 provides a basis for the Government’s work to achieve real equality between men and women. National information campaigns on contraception and spousal violence have been conducted within this framework. The results for 2007 show that 75 per cent of commitments were met.
47. Acsé (see above) contributes to the promotion of gender equality and the prevention of
multiple, interlinked forms of discrimination against women. The Government considers this to be a cross-cutting concern in all its areas of work and, in order to achieve real results, is developing an integrated approach through Acsé. In 2008 the agency will implement the framework agreement for immigrant women and women of immigrant origin to facilitate integration and prevent and combat discrimination.
(a) Political parity
48. Since 1945 women have had the right to vote and to be elected, and have had access to all public-sector competitions and posts. The constitutional amendment of 28 June 1999 recognized the principle of equal access to electoral mandates and elected office. The Act of 6 June 2000 on
promoting equal access of women and men to electoral mandates and elected office introduced the requirement of parity in the fielding of candidates of each sex.
49. In the 2007 parliamentary elections, 107 women were elected to represent French citizens in the National Assembly out of a total of 577 members: this represents an increase from 12.3 per cent in 2002 to 18.5 per cent. These results do not yet meet the objectives of the legislation, not to mention the ideal of parity-based democracy. It would therefore appear necessary to take measures aimed at improving the representation of women in elected office.17
(b) Spousal violence and combating forced marriages - judicial treatment
50. In order to provide victims of spousal violence with the means for a legal defence, France is committed to guaranteeing the real application of the existing provisions of the Act of 10 July 1991 on legal aid. Full legal aid, regardless of income, may be granted in any case that appears worthy of special attention in view of the subject of the dispute or the probable costs of the proceedings. In addition, the Act on legal aid allows foreign women - even those in an irregular situation - who are victims of violence to benefit from legal aid to bring charges before criminal courts.
51. At the national level, the number of proceedings involving spousal violence recorded by public prosecutors’ offices is increasing, as is the judicial response rate. In order to improve the effectiveness of the judicial response to acts of spousal violence, a circular of 19 April 2006 advocates dealing with cases on the spot and sets out the most appropriate methods of prosecution for this type of case, in a partnership framework with actors from associations.
52. In 2007 France acceded to the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, signed in New York on 10 December 1962. The Act of 4 April 2006 ended a difference that had existed since 1804 between men and women with regard to
marriage, by raising the minimum age for marriage for women from 15 to 18 years, as was already the case for men. The purpose of aligning the legal marrying age for women with the age of
majority, as is the case for men, is to combat the forced marriage of minors more effectively. The difficulty of introducing into French law of an offence of arranging a forced marriage, with specific rules of international competence,18 is one of criminalizing forced marriages while respecting the practice of arranged marriages which exist in certain cultures and may be entered into by
individuals.
(c) Combating trafficking in persons
53. In France, efforts to strengthen the battery of legal measures for combating modern forms of slavery in general, and trafficking in persons in particular, are rooted in a strong political desire to reaffirm the fundamental importance of respect for human dignity, against a background of spreading criminal networks. Most of the criminal provisions punishing modern forms of slavery are found in Chapter 5 of the Criminal Code, on offences against human dignity, which was considerably revised by the Act of 18 March 2003 on internal security, one of the aims of which was to transpose into French law the Protocol supplementing the United Nations Convention
against Transnational Organized Crime of 15 December 2000, concerning the trafficking in persons, procuringand similar crimes.
54. The decree of 12 May 2005 established the Central Office for the Repression of Human Trafficking (OCRTEH) and the Central Office for Combating Illegal Employment (OCLTI), central police units whose mission is to combat trafficking or its consequences. The decree of
13 September 2007 on the granting of residence to, and protection, hosting and housing of foreign victims of trafficking in persons and of procuring, which amended the Code governing the Entry and Stay of Aliens and the Right to Asylum, allows trafficked foreigners not to be sent back to their country of origin if they agree to cooperate with the courts by providing information about the individuals who participated in the crimes of trafficking in persons of which they were victims.
Lastly, France recently ratified the Council of Europe Convention on Action against Trafficking in Human Beings of 16 May, which will enter into force on 1 May 2008.
55. The legislature attaches special importance to combating the prostitution of minors. The Act of 4 March 2002 provided, for the first time, for punishment under criminal law of the offence of prostitution of a child, whether committed in France or abroad. The Act of 18 March 2003 provides that victims of exploitation of prostitution shall receive protection and assistance, and may be granted the right to stay in the country and work. In the event of the conviction of the accused pursuant to a final judgement, the foreigner may be granted a residence permit. This system was supplemented by the Act of 9 March 2004 on adapting the justice system to new developments in crime.
56. Lastly, victims of trafficking have access to the telephone hotline “08VICTIMES”, a service set up by the Ministry of Justice in April 2005 to improve information and facilitate victims’ access to their rights. Also, the Ministry of Justice funds the development of a network of victim-support associations which provide services that are always free and confidential.
(d) The situation of women in the labour market
57. The situation of women in the Civil Service and political life has improved, but more progress remains to be made in the senior ranks of the Civil Service. Work is being carried out in order to obtain results that can be quantified and assessed in the framework of long-term plans to improve
women’s access to supervisory jobs and positions in the senior ranks of the Civil Service, and to involve more women in boards of examiners for competitive and vocational examinations. The Act of 2 February 2007 on modernization of the Civil Service and the agreement of 21 November 2006 on lifelong vocational training provide for measures designed to improve organization of women’s careers. Annual reports are submitted to parliament on the implementation of the principle of gender equality in the Civil Service. Several proposals are being considered by the Ministry for the Civil Service to promote a practical approach aimed at facilitating women’s access to posts of responsibility.
58. On 7 March 2007 a Charter on the Equality of Men and Women was adopted by the
Government. France has developed tools to improve the situation of women in public, professional and private life with, for example, a new inter-ministerial convention for the equality of boys and girls in the education system (2007-2011), the Act of 23 March 2006 on equal pay and the “equality label”.19
59. The offences of sexual and psychological harassment are punished under the Criminal Code, and offences concerning discrimination related to such behaviour are covered under the Labour Code. Acts that would constitute psychological harassment may legitimately be considered as coming under the category of violence in the workplace.
(e) The situation of women in overseas territorial units
60. Special measures are being taken in overseas territorial units, where there is sometimes a substantial gender gap, especially with regard to economic status. The incidence of spousal violence against women of all ages is higher in overseas territorial units than in metropolitan France.
61. In Mayotte, New Caledonia and the Wallis and Futuna Islands rules on personal status are drawn from two coexisting legal systems, one deriving from general law governed by the French Civil Code, the other from local or customary law. The laws applicable in these units do not permit any discrimination between men and women. In Mayotte two legislative reforms have ushered in some far-reaching changes in civil status under local law, which are paving the way for
improvements in women’s standing in Mahoran society, without calling into question the actual existence of the personal status guaranteed by the Constitution.
62. A variety of circumstances have led both the national and local authorities to introduce economic policies, as well as policies to combat violence against women and to facilitate equal access to elected office, all of which are tailored to the local context.
5. Rights of the child
63. The Government created the post of Children’s Ombudsperson by the Act of 6 March 2000.
64. In order to foil child abductions, on 28 February 2006 France introduced a media alert system for cases in which it is certain that a child has been abducted. When a minor is abducted, provided that the victim is not put at risk by broadcasting appeals for witnesses on radio and television and provided that such a step helps the inquiry, a message containing the child’s description and a freephone telephone number is circulated on all radio and television channels by order of the public prosecutor. In order to avoid any panic reactions or unjustified accusations, the message makes it clear that the general public must not intervene, but must simply contact the police.
65. The Court of Cassation, which traditionally refused to recognize the direct applicability of the Convention on the Rights of the Child in domestic law, on the grounds that its provisions were too broadly worded, has made a marked shift in its position. In two seminal decisions of 18 May 2005, which constituted a significant step forward and which have since become final, it recognized the direct applicability of articles 3 (1) and 12 (2) of the Convention. The Council of State had declared certain articles to be directly applicable, depending on whether the provisions of the Convention were self-executing.20
(a) Implementation of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography
66. The National Observatory for Children at Risk was set up in 2004 to compile and circulate statistics providing a clearer picture of the subject matter of the Optional Protocol.
67. In an effort to combat “sex tourism”, consultations with 20 tour operators culminated in a national ethical charter to promote tourism that respects children’s rights. The aim of this action is to target potential crimes more precisely, for example by having videos warning passengers of the penalties for child exploitation shown on the aircraft of certain “sensitive” airlines.
(b) Measures applying the Convention on the Rights of the Child to asylum-seekers and their children
68. The treatment of unaccompanied foreign minors depends on how they enter French territory.
Minors arriving by air are kept in a holding area of the airport if they are not immediately admitted to French territory. An agreement of 5 March 2004 authorizes member associations of the National Association for Assistance to Foreigners on the Borders to enter the holding area in order to meet the minors and assess their situation. Efforts must still be made to protect minors in these holding areas.
69. For minors arriving by land, some departments have set up innovative arrangements, like those put in place in Paris in 2003, which are backed by the national Government and which rely on the coordinated action of associations. Closer coordination among associations and administrative departments dealing with foreign minors is still necessary, for example within departmental or regional common platforms.
70. If the unaccompanied foreign minor does not have a legal representative, the public
prosecutor appoints an ad hoc administrator (Act of 4 March 2002), who is responsible for assisting and representing the minor in judicial and administrative proceedings. The Minister of Labour, Social Relations and Solidarity has set up a working party to monitor the application of the law on child welfare, especially with regard to the rights and duties, remuneration and training of these administrators. A draft decree increasing their remuneration is being considered by the Council of State.
(c) The Act of 5 March 2007 reforming child welfare: improved arrangements
71. The aim of the Prevention of Cruelty to Children and Child Welfare Act of 10 July 1989 is to improve child welfare arrangements within a decentralized policy framework. The Act introduces departmental “cells” to improve the circulation of information about children at risk. It promotes linkage between the various actors by providing for the sharing of worrying information, while at the same time respecting individual freedoms, and for feedback from departmental administrative units and the courts. It makes it possible to evaluate the coherence of measures applied to young
persons being monitored, as well as the efficiency of public policies, through the setting up of departmental observatories. The text provides for alternative care formulas for minors who are between institutional placement and open educational support. It lays down that unaccompanied foreign minors are covered by ordinary child welfare provisions.
72. The Act of 5 March 2007 makes it obligatory for the courts to hear any minor who asks to be heard. The new wording also requires the courts to ensure that minors have been informed of their right to be heard and to be assisted by counsel. Henceforth a court may not dismiss a child’s application for a hearing, unless the child is not capable of discernment or is not concerned by the proceedings.
(d) Responses to juvenile delinquency
73. Unless they come within the jurisdiction of a specialized court, juvenile delinquents, on account of their age, are deemed to have diminished criminal responsibility and thus educational measures are given priority over sentences proper. Recent reforms have made substantial changes to the existing set-up in order to improve the efficiency of juvenile criminal justice, while preserving specific features of the applicable criminal law. In particular developments have made it possible to speed up judicial responses by strengthening the role of the public prosecutor and the effectiveness of criminal investigations, while at the same time streamlining judicial responses and diversifying methods of custody during investigations and before and after sentencing. Since the aim is to secure the minor’s rehabilitation, each response is built around a personalized plan.
74. In addition, in order to supplement the measures resulting from the Act of 9 September 2002, the Act of 5 March 2007 brought in four new educational penalties designed to diversify the responses to acts of delinquency committed by the youngest minors. The programme setting up closed educational centres, which reflects the wishes of the legislature, is being continued. The Act of 9 March 2004 established the general principle that the public juvenile judicial welfare sector is responsible for the enforcement of sentences, so as to ensure the specialization of services
responsible for looking after juvenile delinquents, including in the context of the execution of custodial sentences.
6. Sound administration of justice
(a) Reform of the judicial map and the National School for the Judiciary (Ecole nationale de la magistrature)
75. Since June 2007, the judicial map has been reformed in order to improve the administration of justice. The reform is based on two principles, namely, the quality of justice and the real situation on the ground. Consolidation of the courts will allow for more specialization among judges and greater continuity of public service. Some cases could be dealt with outside the judicial sphere, so that judges could redirect their energies to dealing with cases that must be handled according to legal norms. A committee, chaired by a renowned academic, Rector Guinchard, was established to consider these matters and is due to submit its report on 30 June 2008.
76. On 22 February 2008, the Minister of Justice launched the reform of the National School for the Judiciary. The training provided to law officers is being updated and the recruitment base will be expanded. With the reinstatement of the equal opportunities policy, the new preparatory classes will better reflect the diversity of society. The in-service training provided to law officers will give more space to European and international law and, in particular, that pertaining to human rights.
(b) The right of persons held in police custody to the assistance of legal counsel
77. Any person deprived of freedom of movement by virtue of being held in police custody for the purposes of an investigation is immediately informed of the nature of the offence with which the investigation is dealing and the provisions concerning the duration of custody and related rights, including the right to the assistance of legal counsel. A lawyer who intervenes at this stage is informed by a police officer, prior to meeting with his client, of the nature of the offence under investigation, and the date on which it occurred.
78. For offences to which the ordinary law system of detention in police custody applies, a person in custody has the right to meet with a lawyer from the beginning of the measure and from the twenty-fourth hour after any extension. At the same time, the Act of 9 March 2004, in a bid to adapt the justice system to developments in crime, introduced provisions derogating from the right to immediate access to a lawyer, where detention in police custody is imposed in cases of organized crime and delinquency and the offences committed have caused serious injury to persons or even damaged higher national interests. The difference in treatment provided for by the legislator with respect to the system of detention in police custody under ordinary law reflects differences of context linked to the nature of the offences involved. Moreover, it should be noted that this form of detention in police custody, which is necessarily an exceptional measure, is subject to appropriate controls by the judicial authority, which is the guarantor of individual liberty. The Constitutional Court has made it clear that such encroachments upon ordinary law rights must be necessary in order to establish the truth and must be proportionate to the gravity of the acts and the complexity of the offences committed.
(c) The Act of 10 August 2007 strengthening measures to counter recidivism among adults and minors
79. This Act was introduced in response to a desire to combat recidivism more effectively by imposing harsher sentences on adult and juvenile repeat offenders and by tightening up mandatory treatment measures for perpetrators of certain offences, in particular those of a sexual nature. With regard to repeat offences, the Act states that a sentence of deprivation of liberty cannot be lower than thresholds that correspond to set fractions of the maximum sentences. While minimum sentences are the general rule, it should be borne in mind that minimum sentences can always be suspended. A sentence can also be replaced with other measures, provided that the mandatory part is less than one year. Specialized juvenile courts can still impose measures that are primarily
educational. When the issue was referred to the Constitutional Court, the Court stressed that the Act should be implemented subject to the principles of strict necessity and the proportionality of
penalties, taking into account the specific issues involved in dealing with minors.
80. In addition to the possibility of adjusting a sentence, the criminal courts retain the right to impose a lower sentence than the minimum sentence, depending on the type of repeat offence and the acts committed. Minimum sentences are imposed in approximately 53.4 per cent of cases at present, which demonstrates the real discretionary power of the courts.
7. Conditions of detention and the prevention of torture
81. The National Commission on Security Ethics (Commission Nationale de deontologie de la securite) (CNDS) is an independent administrative authority created by the Act of 6 June 2000. It is responsible for ensuring that persons providing security services in the French Republic comply with professional ethical rules, and it drafts exhaustive reports on the conduct of law enforcement personnel.
82. Awareness campaigns on torture have been conducted and a manual for the medical
profession has been published on identifying the effects of torture. The manual was compiled by the Ministry of Health in collaboration with the Association for the Victims of Repression in Exile (Association pour les victimes de la repression en exil).
83. Pursuant to an agreement signed in 2005 by the Ombudsman of the Republic (Mediateur de la République) and the Minister of Justice, offices of the delegates of the Ombudsman have been set up on a trial basis, in prisons. In 2010, all prisoners will have direct access to the Ombudsman’s services.
84. Based on the circular issued by the Minister for Internal Affairs on 11 May 2003 on
“guaranteeing the dignity of persons held in police custody”, efforts are under way to improve the infrastructure and physical conditions of police custody, as well as to improve legal standards and professional practices with regard to compliance with ethical requirements.
85. With regard to placement of foreigners in holding facilities and holding areas, for foreigners, the decree of 30 May 2005 seeks to improve accommodation facilities and budgetary resources have been allocated for this purpose. Moreover, the Act of 26 November 2003 established a national commission to monitor holding centres and facilities, and holding areas.
(a) Effectiveness of investigations and prosecutions in cases of deliberate violence committed by law enforcement officials
86. Judicial investigations into acts of deliberate violence committed by law enforcement officials are conducted, as are all procedures, under the direction and supervision of members of the judicial authority (a public prosecutor or an investigating judge), who ensure that the investigations are conducted properly and thoroughly. After the investigation is closed, the public prosecutor will decide whether a prosecution should be brought in accordance with article 40 of the Code of Criminal Procedure. This general principle of French criminal procedure allows for an individual approach to be taken to the judicial conduct of cases. The principle of discretionary prosecution is not an absolute one; the public prosecutor can reverse his decision, which is not final. Moreover, victims can appeal against the dismissal of a case with the office of the competent public
prosecutor. Furthermore, they can bring a private prosecution by having the alleged offender brought directly before the competent court, or, can sue for damages in civil proceedings before the senior investigating judge. Lastly, the fact that the members of the public prosecutor’s office are law officers and not State officials guarantees objectivity in the manner in which they discharge their tasks.
87. Moreover, where police officers or gendarmes commit acts that constitute criminal offences or violations of professional ethics, the judicial or administrative authority can refer the matter to the national police and gendarmerie inspectorate for investigation. The office of the General Inspector of Judicial Services can take part in such investigations.
88. The commission of acts of deliberate violence by a person in a position of public authority in the course of his duties constitutes an aggravating circumstance under French law.
89. In addition to the vigilance demonstrated in investigations and the penalties imposed for abuses by law enforcement officials, a proactive policy to prevent unlawful violence is in place.
Under the Domestic Security Framework Act of 29 August 2002, issues of professional ethics have been made one of the main components of police training and, in this regard, considerable attention is given to the conduct of, and security arrangements for, difficult police operations.
(b) Definition of torture
90. French criminal legislation includes a specific offence relating to “torture and acts of barbarity”. Torture is defined in case law as follows: “Torture or acts of barbarity require the demonstration of a material element, involving the commission of an act or a number of acts of exceptional seriousness, which exceed simple violence and cause the victim acute pain or suffering, and a moral element involving the desire to deny the victim human dignity.”21 This definition of torture is consistent with the definition contained in article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted on 10 December 1984.
91. Under the Criminal Code, acts of torture which officials in positions of public authority commit in the course of their duties incur a penalty of 20 years’ imprisonment. Moreover, in conformity with the universal applicability of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, any person present in France who has committed abroad acts of torture, barbarity, violence or sexual assault of a minor can be brought to trial in France.
(c) Conditions of detention
92. The observations of the treaty bodies and the European Committee for the Prevention of Torture and the advice given by the National Advisory Commission on Human Rights (CNCDH) emphasize the unsatisfactory nature of conditions of detention in France, in particular prison overcrowding. Steps have been taken to try to remedy the most critical situations and the efforts of the Government will be followed up.
93. The prisons bill currently being drafted is largely inspired by United Nations norms, such as the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, in addition to the European Prison Rules established by the Council of Europe.
94. As at 1 January 2008, the prison population had increased by 4.6 per cent compared to 2007.22 Since 2004, there has been a marked increase in the number of persons placed under electronic surveillance, the most common alternative to a prison sentence. Lastly, it should be emphasized that a proactive policy on alternative sentencing reduction has been put in place, in particular through a ministerial circular of 27 June 2007 which establishes the Regional Conference on Alternative Sentencing, and through the Decree of 16 November 2007. The total number of prisoners serving an alternative sentence increased markedly between 2007 and 2008, reaching 4,943 by 1 January 2008.
95. The Framework Act on the Justice System of 9 September 2002 has improved education for young offenders in detention by ensuring the continuous involvement of educators from the Youth Judicial Protection Service in juvenile facilities and by establishing juvenile detention facilities which only take in young offenders. Moreover, juveniles are allocated individual cells23 and thus are spared the problems of prison overcrowding. The first five juvenile detention facilities (autonomous structures with 60 places) were opened in June 2007, allowing for interdisciplinary care to be provided to young persons in accordance with the European Prison Rules.
96. The mental health of detainees represents a major problem, in view of the proportion of persons suffering from mental disorders and the impact that this has on the management of the prison population concerned. A total of 16 per cent of the prison population under the age of 18 has
