- Interview by
- Harrison Stetler
A hail of tear gas grenades lobbed indiscriminately up the boulevard; a squadron of bludgeon-wielding officers swinging their way through crowds of people — French media and much of the political class call it “maintaining order.” For those who take to the street to exercise their right to protest, they’re blatant attempts to intimidate and repress.
But what goes on beyond these violent scenes is often just as worrying. France’s justice system turned a blind eye to the arbitrary arrest and detention of hundreds of protesters during this spring’s movement against President Emmanuel Macron’s retirement reform, with public prosecutors abdicating their role as guardians of individual liberties. This is one example of what Paris criminal defense attorney Raphaël Kempf calls “judicial violence.” In his recent book, Violences Judiciaires, he explains how France’s justice system often serves as an extension of the police clampdown on political activism and organizing.
One of France’s foremost civil liberties advocates, Kempf frequently defends protesters and political activists. In 2021 and 2022, he was also one of the defense attorneys at the trial over the November 13, 2015 terrorist attacks. Kempf spoke to Jacobin’s Harrison Stetler about the policing of protest and the courts’ failure to stand up to the victims of punitive policing.
In early May, France’s public watchdog on carceral institutions issued a scathing report on the treatment of people arrested during demonstrations following the forced adoption of Macron’s retirement reform. It alerted Interior Minister Gérald Darmanin to “serious violations of the fundamental rights of detained individuals.” What conclusions do you draw from this report?
For five or six years at least, many institutions have criticized the French government’s failure to respect the right to protest. Michelle Bachelet, then United Nations’ high commissioner for human rights, sounded the alarm on this issue in 2019. Many reports from observers like Amnesty International or the Council of Europe’s human rights commissioner have said that there is problem with the way the French government uses the police to organize, supervise, and even limit demonstrations. There are also us lawyers, who have been warning not only about police violence, but also judicial violence — in particular, the use of abusive detentions to deprive a large number of demonstrators of their basic rights.
There were essentially two stages of 2023’s movement against the government’s retirement reform. The early months of the year saw fairly classic demonstrations with relatively few arrests and detentions. The turning point came when Élisabeth Borne [Macron’s prime minister] activated Article 49, section 3 of the constitution, which allows a law to be adopted without a vote in the National Assembly. This is permitted by the constitution, but the move was perceived by many French people as profoundly antidemocratic.
This led to spontaneous demonstrations, particularly in Paris, with people choosing to take to the streets for nighttime rallies and marches. The government — through Paris police prefect Laurent Nuñez and Paris prosecutor Laure Beccuau — chose to crack down on these gatherings, massively arresting and detaining individuals. The vast majority of these people committed no criminal offense whatsoever, and so the police had no right to arrest them.
What’s interesting is that there’s finally a public debate on the problem not only of police violence but of the justice system’s complicity! We have filed complaints over arbitrary detentions. Nuñez and Darmanin have been forced to respond to the public outcry…
But we’re also hearing them double down on their practices, affirming that undeclared marches or protests are against the law…
Yes, but the fact that a demonstration hasn’t been declared in advance doesn’t justify arresting people. In such cases, you can’t legally arrest and deprive people of their liberty. And you certainly can’t do anything against average participants, only against those who’ve organized the rally.
In the cases you’ve fought, how have your clients experienced their treatment by the police and justice system, from their initial arrest and time in custody to release or deferral to the courts?
There is a sense of bewilderment, or rather an acute awareness of the repressive nature of this government and its determination to use all the policing and judicial means at its disposal to prevent people from demonstrating. The political situation comes down to the fact that the government forced through a law that was overwhelmingly rejected by the population. It is now willing to use the tools allowed by its interpretation of the law — justifying arbitrary detentions, for example — to punish critics.
Spending twenty-four or forty-eight hours in police custody for nothing gives people the feeling of being victims of state violence. They’ve experienced an injustice and a flagrant disrespect for the rule of law, which is the obligation that the state and its agents, namely the police and prosecutors, respect the law. The problem is that there is little to ensure that these agents are held accountable when they break the law.
Convicted or not, those who were arrested this spring are likely to remain in police records, information that on its own can serve as a de-facto sanction…
Yes, several police files, notably fingerprint or DNA records and a more general police database, collect information on individuals. This is what you call “prior arrest” records in the United States. The problem is that some people on these records are totally innocent. In the age of big data, the clearing of personal information like this is a fundamental right. From a legal point of view, the responsibility to supervise and update these records lies with public prosecutors, but I can assure you that this control is not being carried out. Those arrested in 2023 will likely be on file for years to come.
I’ll give you one example from a case that I’ve dealt with closely. In 2016, I defended a minor — a high school student — arrested while taking part in a demonstration. Back then, he was tried and acquitted before a juvenile court, which according to the law means that his information needed to be cleared by the prosecutor’s office. The same young man was arrested again at a recent demonstration, so when I went to court to defend him I had access to the police file where the 2016 case for which he was acquitted was still listed. This is a concrete example of how both this man’s rights and the law were not respected. It leads me to believe that data on activists collected in 2023 could still be hanging around by 2030, let’s say. For years to come, we’ll hear things in court such like, “Sir, you were arrested in 2023 for demonstrating against the pension reform” — even if strictly speaking there is nothing to reproach the person for!
This is particularly worrying at a time when there is talk of a new anti-casseurs law [“casseurs,” literally “breaker,” or thug, is the French right’s word for violent protesters], designed to increase the state’s ability to preempt demonstrations. Records like this — alongside information compiled by the intelligence services — have been used to ban specific individuals from attending demonstrations. What might legislators do to reinforce the state’s legal arsenal?
The tightening of legal restrictions on the right to demonstrate is often done in small steps, through a discrete article in a law that many don’t notice when it’s first proposed. But there are also explicit texts where the government puts forward a law designed to send a political message and show that it’s taking the initiative. One example was the so-called anti-casseurs law of 2019, which was partially invalidated when the Constitutional Council rejected the government’s attempt to formalize targeted bans allowing state officials to restrict certain individuals from demonstrations.
Part of the political class is calling for a new anti-casseurs law. We don’t have the text in front of us yet, but it seems like one of the priorities will be reviving administrative orders to bar specific people from demonstrations. This is something that was tested during the 2015 state of emergency, when prefects preemptively banned individuals from going to certain areas even though they hadn’t committed an offense.
Prosecutors are one of the key subjects of your latest book, Violences Judiciaires, which traces the many ways that France’s justice system has been enlisted in the state repression of political activism and social movements. Can you talk a little about what’s going on within this institution?
In France, prosecutors aren’t elected, so they don’t have to answer to the public. To a certain degree, they are accountable to the government, which cannot give individual orders in a specific case, but which appoints prosecutors. This means that if you want to make a career in the prosecutor’s office, you need to not run afoul of the government and follow criminal policy directives regularly issued by the Ministry of Justice. For example, a circular issued this winter by Justice Minister Éric Dupond-Moretti instructed prosecutors to respond firmly to people arrested in connection with demonstrations.
Public prosecutors have proven willing to play the government’s game and are not fulfilling their constitutional role of guardians of individual liberty, particularly when it comes to supervising the conditions of police custody. When a person is deprived of his or her liberty by the police, the prosecutor is informed so that they can refuse this deprivation of liberty if they consider it to be illegal. This kind of control sometimes seems nonexistent, and it was nowhere to be found during the mobilization against the “49.3.”
The last few months have brought judicial violence like this to the forefront of the political debate in France. This is not yet the case, however, when it comes to the justice system’s handling of terrorism cases, a field you know well, having represented one of the defendants in the trial of the November 13, 2015 attacks. Why?
The trial of the November 13 attacks revealed a desire for revenge on the part of French society against those considered responsible for those despicable attacks. But justice is not vengeance. This has to be said because [the defense] had the impression that everything was done to put on a show of the justice system’s response and portray a society that seemed to be responding in a measured and law-abiding way. Before, during, and after the trial, a number of figures in the political and legal worlds framed the case as France responding to barbarity with law: We are justice, the rule of law; they are the negation of law. In my opinion, this is not only false, but above all dangerous, because it creates a kind of level playing field between the actions of a republic with those of terrorists.
But the real story of the November 13 trial is about a society seeking vengeance under the trappings of the law — while the rules of legal due process were trampled on.
In what ways were there deviations from ordinary due process?
For one example, it’s worth remembering that the investigation into the November 13 attacks was largely conducted by the Belgian police. The investigating officers wanted to testify anonymously before the court — contrary to the principle of transparency, which requires that witnesses appear in court under their true identity. I, alongside other defense attorneys. objected to this, and so we had a procedural debate to argue that the officers should testify under their actual identities.
Judge Jean-Louis Périès [the chief magistrate during the trial] initially agreed with us. This was at start of the trial, in November 2021, and I went away with the impression that the judge was applying the law. But this decision provoked a diplomatic incident, with the Belgian police chief and the federal prosecutor exerting pressure on the court, essentially saying, “If you don’t reverse your decision, the police won’t testify.” But if Belgian police didn’t testify, there would hardly have been a trial! Despite our arguments, Judge Périès reversed his decision.
You have to put yourself in the shoes of the person I’m defending, who is hoping to have a fair trial but who sees the leading judge of the court examining his case make a decision contrary to what he had initially said — and all because of political pressure.
The crux of the case revolved around charges of association de malfaiteurs terroristes (AMT), or “terrorist conspiracy.” How do you build a case against an “AMT”?
It’s extremely difficult. The original association de malfaiteurs was created in 1893 to facilitate the clampdown on anarchist militants, and the “anti-terrorism” AMT was created in 1996. These offenses are designed less to punish things that have happened than the preparation of certain crimes. They’re called “obstacle offenses” and are supposed to make it possible to apprehend people before they commit an infraction, for example to prevent them from committing an attack. This type of offense should not be used when the attack has taken place, when people can be arrested for participating in, organizing, or attempting the criminal act.
[As it was interpreted], the AMT criminalizes having been in contact with the people who took part in an attack and having maintained those links while knowing that they were preparing the attack. Or more precisely, by not having been able to be unaware that the attacks were being prepared. In other words, the AMT punishes the fact of not having seen that your cousin, your brother, or your friend was preparing an attack when you should have seen it.
The formula used by the judges was, “Mr. X could not have been unaware that…” How do you prove that? We rely on a body of evidence. For example, in the case of [my client], Yassine Atar, it was said that Atar could not have been unaware that his cousins were radicalized; Atar should have noticed that his cousin no longer shook hands with women and therefore that he had become radicalized. And since [his cousin] had become radicalized, he was in the process of preparing an attack.
My interpretation of the charges used by anti-terrorist prosecutors at the November 13 trial is that in order to avoid being convicted for terrorist conspiracy, individuals are being asked to do the work of the intelligence services and essentially detect the signs that suggest that those close to them are becoming radicalized and are going to commit an attack. These are very dangerous legal waters. The state’s interpretation of the law turns every citizen into a potential spy of their neighbors or relatives — especially of their religious practices.
You argue in your book that the AMT is part of a new category of crimes and offenses that are blurred to give maximum leeway to prosecutors — from more extreme cases related to terrorism to the “violent grouping” offense used against protesters. In what way does this model of offense signal an erosion of rights?
It’s part of a paradigm shift from punishment to prevention in criminal law. Modern criminal law developed throughout the eighteenth and nineteenth centuries on the principle of punishing what has been committed so that citizens can know what is forbidden and behave accordingly. With the AMT and “violent grouping” offense or the original association de malfaiteurs, we’re abandoning this idea, punishing people for what they could have done instead of for what they did in fact do.
This creates a situation where the burden of proof is reversed, which was evident throughout the November 13 trial. Normally, the prosecutor has to prove that a defendant is guilty. At the November 13 trial, the defendants had to prove that they were innocent.
I’d like to return to the history of France’s anti-terrorism statutes, which were originally developed in the 1980s to counter far-left groups. France’s interior minister has caused an uproar in recent months by using terms such as “ecoterrorism” or “intellectual terrorism” to describe environmentalist activists or left-wing protesters. Should we fear a wider application of anti-terrorist statues?
France’s anti-terrorism laws were first formalized by a law passed in 1986, with the goal of creating an exceptional mechanism to bypass popular juries and judge defendants before magistrates. This is a fundamental step backward for a democracy. If you look at French history, every time there have been attempts to get rid of popular juries, it’s to ensure a stronger repression against political enemies. This was the logic behind the anti-terrorism law of 1986. Thanks to a retroactive provision, this law was immediately used against members of the far-left Action Directe group.
The anti-terrorist laws [notably the AMT, created in 1996] were used in the infamous Tarnac Affair, which began in 2008. But this ended in a fiasco, with the terrorism charges eventually dropped and the defendants acquitted in 2018. For now, at least, it seems that the Tarnac Affair has dissuaded prosecutors from using the anti-terrorist code against left-wing activists.
How should the justice system respond to offenses or crimes of a political nature?
In French law, an old republican tradition treats political offenses with a certain degree of leniency. In 1848, for example, the Second Republic abolished the death penalty for political offenses. Juries were guaranteed for political offenses throughout the most liberal and republican periods of French history and immediate trials were banned for political offenses.
This has all been swept aside in recent years, either by the law or by judges, so that exceptional measures such as immediate trials are applied to political cases. What we’re seeing more and more are political cases where people might not be accused of terrorism, but the investigations are being carried out by officers of the anti-terrorism bureau. I’m in favor of sticking either to the ordinary criminal code or to the system of specifically political offenses. More broadly, I call for the repeal of the anti-terrorism laws — not because we shouldn’t fight terrorism, but because we already have the means to do so in the criminal code.
The terrorism offense is too unwieldy of a tool in the hands of those in power, who can make it out to say whatever they want it to. Interior Minister Darmanin’s recent tirades against “ecoterrorism” shows that the word has little legal meaning, which makes a poor foundation for real justice.
It seems to me that one of the subtexts of your analysis of France’s justice system is that it’s being asked to do too much…
The justice system isn’t about maintaining public order. Rather, I argue that the justice system ought to confine itself to its true role, which is to sanction people who have committed offenses following a fair trial. To suggest that the justice system can prevent attacks or maintain public order is extremely presumptuous in my opinion. If the justice system wants to move in a predictive direction — to prevent what might happen — then we’re inevitably feeding into a logic that will restrict civil liberties. As a lawyer committed to fundamental rights, that worries me.