Information Note on the Court’s case-law 256

November 2021

Sassi and Benchellali v. France - 10917/15 and 10941/15

Judgment 25.11.2021 [Section V]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Statements given by applicants to French authorities on US base at Guantánamo not used as basis for criminal proceedings and convictions in France: no violation

Facts – The applicants, two French nationals, were apprehended at the border with Pakistan when they were trying to leave Afghanistan in early 2002. They were handed over to the US authorities and held at the US base in Guantánamo Bay. The French authorities questioned the applicants there on three occasions in the context of “tripartite missions” (“the missions”) involving representatives from three French authorities (Ministry of Foreign Affairs, External Security Agency (DGSE) and Domestic Intelligence Agency (DST)).

The applicants were subsequently repatriated to France where they were put on trial and convicted for terrorism offences.

The applicants complained under Article 6 of the Convention about the hearings at Guantánamo Bay and the use of evidence taken there for the purposes of the criminal proceedings against them in France.

Law – Article 6 §1:

1. The nature of the interviews at Guantánamo Bay

While judicial proceedings had been initiated in France in parallel to the Guantánamo Bay missions, the domestic courts had used various evidence in support of their findings but had considered the missions to be purely administrative in nature, unrelated to the judicial proceedings, with the aim of identifying the detainees and collecting intelligence, not for the purpose of gathering evidence of an alleged criminal offence.

The staff of the Ministry of Foreign Affairs, which had been the entity solely responsible for the missions, and the DST (intelligence unit) agents placed at its disposal, had not gone to Guantánamo Bay with a judicial mandate. Moreover, the reports of those agents, under the “secret defence matters” classification, could not be transmitted to the judicial authorities or used in criminal proceedings against the applicants.

After the first mission, the public prosecutor had opened a preliminary investigation concerning the applicants, but without having any evidence to suggest that they had committed an offence that could give rise to criminal proceedings in France. The investigation was to be carried out by the DST’s judicial unit, a separate unit operating independently of the intelligence unit.

The purpose the a request for mutual legal assistance addressed to the US authorities had been to seek missing information that was needed in order to understand and assess the circumstances of the applicants’ departure from France and their journey to Afghanistan, together with any incitement, support and instructions they may have received before engaging in their terrorist training.

The third mission, which had been conducted after the opening of the judicial investigation, had pursued the same aim as the first two missions and had been conducted independently of the various judicial proceedings underway in France.

Moreover, the intelligence gathered during the missions had already been known to the DST (judicial unit) in the light of the information in its possession.

Admittedly, from the point where the DST (judicial unit) had been entrusted by the public prosecutor’s office with the preliminary investigation, it had become responsible for that investigation and was bound by the rules of the Code of Criminal Procedure. The Court of Appeal, ruling after the case had been referred back from the Court of Cassation, had considered whether the information transmitted to the judicial authorities had infringed the rights of the defendants by constituting incriminating evidence, obtained potentially in breach of the Code of Criminal Procedure, and whether it had been both new and decisive for the outcome of the judicial proceedings. After establishing a lengthy and detailed chronology of the various facts and events, an examination of the declassified documents and the records of the DST (intelligence unit) investigation, which had been made available for adversarial debate, the Court of Appeal had concluded, in a specially reasoned judgment, that the administrative nature of the missions was established and that they could not in any manner be linked to the judicial proceedings.

Therefore, during the missions to Guantánamo Bay, which had been unrelated to the parallel judicial proceedings in France, the applicants had not been interviewed in the context of a “criminal charges”, within the meaning of Article 6 § 1 of the Convention, laid against them by the agents conducting those missions.

2. The criminal proceedings in France

The applicants had complained of a violation of Article 3 of the Convention on account of the conditions in which they had been interviewed by the DST (intelligence unit) agents at Guantánamo Bay. The Court had previously noted allegations of ill-treatment and abuse of terrorist suspects held by the US authorities in this context. In the present case, the applicants’ Article 3 complaint in respect of the French agents was declared inadmissible. In view of the particular circumstances of the case, the Court was nevertheless called upon to examine, under Article 6, whether and to what extent the domestic courts had taken into consideration the applicants’ allegations of ill-treatment, even though it had allegedly been sustained outside the forum State, together with any potential impact on the fairness of the proceedings.

In addition, it was for the Court to assess whether the statements at issue had actually been used during the judicial proceedings, in the judicial investigation or at the trial. In particular, the Court had to examine whether the domestic courts had properly addressed the objections raised by the applicants as to the reliability and evidential value of their statements and whether they had been given an effective opportunity to challenge the admissibility of those statements and to object to their use.

As soon as they arrived in France, the applicants had been arrested by DST (judicial unit) officers and taken into police custody, at which point they had consequently become the subject of a “criminal charge”. The interviews had not been conducted by the same agents who had participated in the missions. Moreover, these officers had not been aware of the content of the intelligence collected by their colleagues at Guantánamo Bay. The applicants, who were interviewed thirteen times while in police custody, had provided comprehensive details about their background, their training in Afghanistan and their motives.

The applicants, assisted by their lawyers, had subsequently been questioned by the investigating judge on ten and eight occasions respectively.

When the trial opened, the Criminal Court had ordered additional information, as a result of which a number of people had been interviewed and various documents emanating from the French agents’ missions had been declassified, before being added to the case file and made available for adversarial debate between the parties.

Throughout the proceedings, the applicants and their counsel had been able to put forward their arguments, submit their requests and exercise the remedies available to them. They had been given access to documents which had been added to the case file after declassification and had been able to discuss them in accordance with the adversarial principle.

Lastly, whilst the relevant documents had been used in the trial proceedings, the Criminal Court and later the Court of Appeal, ruling after remittal of the case by the Court of Cassation, had based their judgments as to the applicants’ guilt almost exclusively, in lengthy reasoned decisions, on other incriminating evidence, such as information from different judicial proceedings that had already been in the possession of the intelligence services, together with the detailed statements made by the applicants while in police custody and during the judicial investigation. The Criminal Court’s judgment had contained only one reference to information obtained in the course of a mission and that concerned the type of training the applicants had received in a camp in Afghanistan.

In the light of the foregoing, and noting that the information obtained during the mission interviews had not been used as a basis either for the bringing of criminal proceedings against the applicants or for their conviction, in the circumstances of the case, the criminal proceedings conducted in respect of each of the applicants had been fair overall.

Conclusion : no violation (unanimously).

(See also Ibrahim and Others v. the United Kingdom [GC], 50541/08 et al., 13 September 2016, Legal summary ; Beghal v. the United Kingdom , 4755/16, 28 February 2019, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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