Handbook for the active activist [part2]
07.Jul.02 - [back to part 1]
People outside:
As soon as anyone has been more than four hours in the police station, they are formally under arrest ("garde à vue"). It is advisable to wait outside the police station, to demonstrate if numbers are sufficient, in order to obtain news of those arrested and let them know that they are not on the own. You will have to contact the Legal Team to obtain advice on further developments (people may be released under "garde à vue", without further obligation). It is often possible to have cigarettes and food sent in to those inside. It is always advisable to try this. The knowledge that people are outside are demonstrating true solidarity is a great help when faced with the loneliness of a police cell. Once the necessary information has been received, it is necessary to devise a defence strategy. Anyone who has been involved in an action alongside those arrested will play a crucial role in telling the outside world what has happened and give advice according to political circumstances, in tandem with the Legal Team.
Vehicle checks and searches:
- when a vehicle is checked, only the driver need show proof of identity. The police are entitled to ask that the vehicle is opened and to check inside, but they may not search it without a written warrant. A written statement (PV) should be issued. It is important to obtain it.
- Vehicle search: this is not possible without a formal warrant, except when investigating terrorist acts, where offences involving firearms and explosives are suspected or where drug-trafficking is involved. In this instance, the vehicle may be searched at any time of day or night, in the presence of its owner or in its owner's absence. Except in these circumstances, the police need a written warrant from the state prosecutor ("Procureur") issued for a specified time and place, in the presence of either the owner or the driver of the vehicle, or failing these, in the presence of a third-party.
Searching homes:
These must be authorized by a magistrate ("juge de la detention et des libertés") on submission by the prosecutor ("procureur"). It is necessary to obtain a copy of the prosecutor's demand ("commission rogatoire") and to verify that it stipulates the address, the offences suspected and the grounds of suspicion. Homes may be searched only during official hours (6 a.m. to 9 p.m.) except where terrorism or drug-trafficking are involved, or where the place concerned is not a place of residence. N.B. tents, bags, even pockets are considered an extension of the home and searching them is therefore subject to the same regulations.
Before the prosecutor ("procureur"):
The prosecutor or his deputy ("substitut du procureur") is responsible for determining the charges upon which the hearing will be based. You will be summoned to meet him, usually towards the end of the "garde à vue", the day after your arrest. He or she is representative of the state prosecution department ("Le Parquet") and will decide whether or not there are grounds for charging you. He will also determine what charges justify a court appearance.
You are strongly advised never to acknowledge responsibility for an acts which may constitute an offence. When you are summoned before the prosecutor, you will be interrogated a second time and this will give rise to a second statement ("process-verbal, PV) being drawn up. It is crucial that this statement is compatible with the statement made at the police station or, alternatively, that it explicitly refutes that statement. Otherwise, the magistrate will accuse of lying when you get to court. If you wish ton refute the statement drawn up in the police-station, make this very clear and explain your decision by referring to the tense circumstances of your "garde à vue", the fact that you were put under pressure, and by saying that you are now denying your initial statement. The prosecutor may ask you to see a counsellor. You are not obliged to accept this. Everything to you tell a counsellor is liable to be used as evidence against you in court (for instance, during the December 1995 movement in Paris, the fact that someone charged with causing bodily harm was a martial arts practioner was used against them.)
Aliens, even those not illegally resident in France and on a short visit, may be tried as French citizens or may be expelled and banned from entry either into France or into the Schengen Area, either for a short time or indefinitely. If they are wanted in another country, an extradition process will begin. This is not something we will go into here. Aliens who are minors may not, in principle, be expelled.
Immediate court appearance:
The public prosecutor will decide when you are to appear before a judge or magistrate. The procedure for immediate court appearance brings you to court within about 24 hours of the event, and thus does not give you time to prepare a case for the defence, find witnesses, etc.... Furthermore, the penalties inflicted on those appearing in court immediately are almost always heavier than those summoned later, for a corresponding offence. The defendant is entitled to request a delayed trial in order to prepare his defence. The immediate appearance procedure should generally be rejected by the defendant at the start of the trial, which may mean ignoring people who suggest that rejecting an immediate hearing automatically entails doing remand. The defendant is then be deferred before another magistrate ("juge des libertés et de la detention") who will rule on whether the defendant should be released or not setting a subsequent date for trial, or whether the defendant should be held in custody until the trial. The right course at this stage is to plead for release. The lawyer must provide the judge with guarantees ("garanties de representation") - see "With the Lawyer" section below.
With the Lawyer:
After seeing the prosecutor ("procureur"), if you are sent to court immediately, you will be given a lawyer attached to the court ("avocat commis d'office"), who will not have sufficient time to prepare the case for the defence. You should ask the lawyer, with the support of the Legal Team, for the hearing to be adjourned and find guarantees ("garanties de representation") such as proof of registration as a student, proof of employment, written offers of employment, proof of residence (better give official evidence that you live with reliable friends rather than in a hall of residence, a hostel, or a squat is providing this evidence is difficult) so that the lawyer can plead release and remand may be avoided. Try and arrange for evidence of employment and residence to be available easily, either by having the necessary papers on you or in a place where friends and the Legal Team can access them. In order to get friends to establish a certificate saying that you live with them, all that is required is a signed letter stating "I, the undersigned, give my word of honour that such-and-such a person has lived with me at the following address since such-and-such a date" (Je certifie sur l'honneur héberger ... à ... (address) depuis... (date.) ", together with an electricity, telephone or other bill and a photocopy of the friend in question's identity papers (passport, driving-licence or identity card).
Before a Magistrate:
This is a theatre of comedy. What is the first way through? Firstly, behave with courtesy. Magistrates like to enjoy respect. Wear respectable clothes. Make them believe you belong to their world. Provide a plausible and coherent account of events. Do not be put off by perverse or openly hostile questioning. Call respectable witnesses to testify that you have done nothing wrong and you are a nice person. The lawyer will have studied the elements of the case with the help of the Legal Team and will seek to undermine police statements which are generally replete with illogical and contradictory conclusions. Demonstrators' trials are generally a farce: the magistrate is not ruling on the facts held against demonstrators, but on their participation in a demonstration which is disapproved. Generally, these trials are based on police testimony where the police are under an obligation to justify the arrests they have made. The question is, should the magistrate trust a defendant who denies the charges, or trust the representatives of the law? The matter is soon settled unless lawyers succeed in proving the sometimes enormous inconsistencies and contradictions in the evidence presented by the police. the magistrate may ask whether you will accept a sentence of community work ("travail d'intérêt general", TIG. See below). To say no does not necessarily induce more severe penalties.
When condemned:
You may be sentenced to a variety of different penalties. How these are applied depends on the ruling of a sentencing magistrate ("juge d'application des peines", JAP).
- Prison sentence: imprionment. If you appear freely in court and if the sentence is inferior to one year's imprisonment, you will not be arrested at the end of the trial and the JAP will determine when the sentence is served. If you must accomplish the sentence, you will be probably be sent to prison ("maison d'arrêt") and it is a criminal magistrate or a JAP who will commit you ("mettre sous mandat de depot"). When you reach prison, the prison authorities ("administration pénitentiaire", AP), will not give you any information. You will therefore have to ask other inmates what the procedure is, for instance regarding the canteen, permission to have clothes brought and so on. Usually, other inmates will lend you anything you need until a postal order arrives. Write to someone on the outside as soon as possible to tell them everything you know about the rules, for instance regarding visiting times, canteen times, what may be sent and so on, so that practical issues can be sorted out as quickly as possible. You will be put in touch with a social worker on arrival and he may contact friends and relatives. Always remember that this person is a salaried official.
- Suspended prison sentence. You will not be sent to prison. However, for a certain duration, you will be liable to imprisonment. Simple suspended sentence ("sursis simple"): over a period of time determined by the magistrate, which can be up to five years, you may be liable to serve a prison sentence if you receive a subsequent sentence. The magistrate sentencing you a second time will decide at the subsequent hearing whether the sentence justifies applying your previously suspended sentence. He will usually do so if the circumstances of your second arrest are similar. At the end of the period of your suspended sentence, if you have not re-offended, the sentence will lapse. You may also receive a conditional suspended sentence. This is harsher. For a period between 18 months and three years, you will be place under observation ("contrôle judiciare") by the JAP. You must show that you are employed, that you have a place to live and you are liable to immediate imprisonment on arrest if subsequently arrested, without further hearing.
- You may also be condemned to community work ("travail d'intérêt general", TIG). This is additional to a suspended sentence and not an alternative to it. It involves providing 30 hours to 240 hours of free labour to a local authority ("collectivité publique"), a public institution ("établissement public") or a non-governmental organization ("association"), for example cleaning the toilets in a police station or working as a municipal gardener. When you have completed your TIG sentence, the associated suspended sentence will lapse.
- Fines ("amendes"): a fine is a sum of money you may be condemned to pay the state in compensation for damages consequent on public disorder. Fines may be additional to suspended prison sentences.
- Damages ("dommages et intérêts"): this is a penalty under civil law, generally corresponding to legal action by a police officer or a member of the public. The amount may vary between one symbolic franc (euro) to several thousand francs/euros, according, for instance, to the number of days off work the victim has been given ("incapacité temporaire de travail", ITT).
- Criminal record ("insciption au casier judiciare"): The sentence you receive will appear in your criminal record. This consists of three coupons. Coupon n° 1 is available to the courts only. It provides a complete record of your judicial history. Coupon n° 2 is available to the authorities (public administrations such as the police ("Préfectures") and the army. It is restricted and does not reveal suspended sentences once these have lapsed. A magistrate has the power to decide that a penalty will not appear on Coupon n° 2 of your record. Coupon n° 3 is available only to the person concerned and cannot be delivered to a third party. It shows sentences above two years' imprisonment, though a magistrate may instruct that a lesser sentence can appear on this part of your record. Coupon n° 3 also contains any bans, prohibitions and deprivations of rights ("interdictions, incapacités ou déchéances"). It is possible, during trial, to request that a penalty does not appear on Coupons n°2 and n°3.
A note on offences
The least important is contempt ("outrage"). It relates to insults received by police officer in the execution of their duties. It often accompanies other charges, in order to place a negative slant on the defendant. It may give rise to suspended sentence of 15 days to 3 months' imprisonment as well as a fine (500 francs to 15000 francs) and/or damages for the policemen in question.
You can be accused of 'rebellion' if you resist during your arrest or if you're considered to have made 'threatening' gestures towards cops on duty. You risk to be condemned to prison (suspended sentence / 'sursis') from 6 days up to 6 months or to community work (TIG in french). Carrying a 'prohibited weapon' (knife, cans, gas, ......) exposes you to receiving a suspended sentence if you are careless enough to get caught.
Throwing projectiles ( cans, bottles, stone, non identified dangerous object, fences...) is enough for the police to charge you even if you don't hit any particular target. You may then receive a either a suspended sentence ('sursis') or community work penalty (TIG).
The offence of 'violence on a representative of the police' is more pernicious, according to whether the cop sues or not, and can involve very heavy sentences if admitted by the accused or if the policeman involved is heavily injured.
In general, causing bodily harm is punishable if the person concerned has been laid off work for a week or more. There are exceptions, such as causing a police person bodily harm during the course of his or her duties, which is punishable even if the person concerned has been laid off for less than a week (or not laid off at all!!). The sentences involved stretch from 2 months' to 2 years' imprisonment (which may or may not be suspended). Cops usually seek damages as well.
Damaging property ('dÈgradation de biens'): smashing windows, cars, shops and commercial goods of any sort in general is frowned upon by judges. The notion of damage is very broad, ranging from graffiti to sabotage. Possible sentences include a prison sentence (suspended or not), ranging from 1 month to 2 years, according to what has been damaged, the number of people involved and the context, in particular whether the act is related to a social struggle. There is also a risk of being fined (by the State) or having to pay damages (to a person or company). If a private person or company sues, the sentence is usually more severe.
Theft is also an expensive offence, especially if you are caught red-handed.
It is essential not to admit to anything based on police testimony. Arrests usually take place in confused circumstances, confusing to demonstrators and cops alike. It is commonplace that people are charged and punished for things done by others. Judges are well aware of this. Accordingly, you should usually play the part of the innocent person arrested in error.
Everything is now in place to enable certain offences mentioned above, or indeed simply occupying public or private places of benefit to the State, including to the State's economic interests, should now be considered as terrorist acts if the Public Prosecutor ("Procureur") considers that the offending deed was intended to "seriously damage or destroy the political, economic or social infrastructure of a country". This modifies potential sentencing policy and the rules governing search-warrants "perquisitions" and arrest ("garde-Ω-vue"). Not enough is known about how these provisions will be used and we cannot say more. As far as we know, they have never yet been applied.
Organizing a legal defence
The following comments complement and set out the basic framework within which a person charged may work with the Legal Team if they wish.
When you appear in court, the magistrate or judge will question you on the matters held against you, according to information received from the police. In order to respond correctly, you will need to establish a case for the defence, by which is meant a coherent and plausible version of events, which is OK by you. There are many possible lines of defence, according to one's thinking and according to circumstances. Choosing one over the others always has political implications and everyone should be aware of them. What is proposed here is only one avenue. The question is not whether you are guilty or innocent, but that you have been accused by law-and-order representatives and that you will need to defend yourself, even though your word may be a priori worth less than theirs in court. If you deny the charges in a logical and coherent manner, you may spread doubt and this in turn may lessen the burden of punishment, as against recognizing the charges and hoping for mercy, a method which in practice is akin to suicide. If the facts are admitted in court for specific political
reasons, it is important to realize the possible consequences in terms of conviction.
In order to establish your defence, you will in theory appoint a lawyer (the Legal Team can help with this if you wish). This lawyer is a technical expert: you must prepare your defence with him. The lawyer is no better placed than you or your friends however to assess what is at stake and the relative strengths of the various parties involved. The lawyer is not there to oblige you adopt a line of defence, but to help you express yourself, defend your actions and your point of view, as well as warn you as to what penalty you may incur. it is important that it should be you who decides what the logic of your defence should be, having listened to and weighed the various arguments involved, on the advice of others who have taken part in the same action as you, of any fellow-defendants and of the Legal Team if you are pursuing a group defence. In the case of collective actions, we suggest that individuals should consult collectively with other people involved regarding individual defence strategies.
In order to establish a line of defence, the first thing to do is
to obtain the results of any investigation ("dossier d'instruction") from the court (via a lawyer), read it through thoroughly from beginning to end, paying special attention to police evidence against you (PV de policiers témoins à charge). You mùust criticize this evidence, reject the version of events it contains, word-by-word at first. This means reading carefully each version of the facts evidenced by a police officer and oppose your own version when siagreeing. N.B. Photocopies of the file containing the results of an investigation ("dossier d'instruction") are available for free if you have requested legal aid and are entitled to receive it.
Next, you must go through the action through the successive phases established in the evidence ("PV"); determine the circumstances, the situation, before you were arrested ("interpellation"), then facts against you, the exact circumstances of your arrest according to police evidence. Then, if different police people have given evidence, which is often the case, you must compare the evidence and establish whether there are logical flaws or contradictions between various police statements. Having done this, you must develop a logical account for the defence that may stand against the police account.
In order to back up what you affirm, you must find witnesses for the defence. These must be able to state that they were present at the time the alleged offence was committed and must be able to provide a different account to the police account. Witnesses' testimony must be useful, meaning that it must bring elements to bear showing that you are not guilty. Witnesses' respectability is a factor. Their evidence may be in writing or may be presented orally in court. You must have oral witnesses called ("cités") by a lawyer, usually a few days before the day set for the trial. There is charge for calling witnesses into court, payable to the clerk of court ("citation à comparaître"). The fee is lower if witnesses are introduced at the start of the hearing. You may also introduce plain written statements by character witnesses ("témoins de moralité"). These will not refer to the alleged offence, but will emphasize that you are usually a serious, gentil, nice, generous, civically-minded person.
Form of Evidence
Written testimony to be introduced into a criminal court ("correctionelle") must absolutely be presented in a certain form. Photocopies of both sides of an identity card are required, together with handwritten evidence on a blank sheet of paper containing the witness' name, first name, place and date of birth, address, nationality and profession. Legally-speaking, in order to be admissible, written evidence must contain the established formula: "I, the undersigned, certify that Ì witnessed the following facts..." ("Je soussigné certifie avoir été témoin des faits suivants..."); "I declare that I am not related to, nor do I employ, nor am I employed by the defendant..." ("Je déclare n'avoir aucun lien de parenté et n'être ni l'employeur ni l'employé de la personne en cause..."); and finally, "I know that this evidence is liable to be brought before a court and that any false evidence would make me liable for prosecution for perjury.‰ (Je sais que ce témoignage va être produit devant le tribunal, et que tout faux témoignage entraînerait des poursuites pénales.")
In addition to these varioous set phrases, you must give your version of events, your perception of the situation, including whether there was any police brutality or any other irregularities such as the police not wearing armbands or not saying that they belong to the police. You must also refer to the deeds held against the defendant and declare that he or she is not guilty. You may also supply evidence as to his or her character or not refer to the facts of the case but simply to the defendant's character and show how unlikely it is that he or she could have committed the acts he or she is accused of.
Final Words of Advice from the Legal Team
Do lots of great stuff but don't get caught. If you can't avoid being charged, give us a great trial!
This handbook is largely inspired by the handbook published by CAMI ("Collectif d'Aide aux Manifestant-e-s Interpellé-e-s", ("Support Group for the Active Demonstrator"), an organization established in December 1995 to combat repression against demonstrators. This group found lawyers and money; organized debates and benefits for those in trouble with the law. Subsequently, the group was put on hold, then re-appeared in September 1996, "sans-papiers" supporters faced repression. During the unemployed and anti-exclusion movements of 1997/8, CAMI was re-activated after demonstrators were arrested and imprisoned following an action against a Cash Converters store in Paris. CAMI was then taken over by some of the people involved in that movement.
It has been re-activated for the No Border Camp in Strasbourg in July 2002 (and will need to be adapted for use in other circumstances) within the framework of a Legal Team established to help participants in the camp organize themselves.
the Legal team