What would have happened to the Charlie Hebdo terrorists: a summary of French criminal procedure in terrorism cases

On January 7^th 2015, two gunmen launched a terrorist attack on the French satirical magazine Charlie Hebdo in Paris, shooting dead twelve people and injuring many others. Among those killed were four well-known cartoonists, staff of the weekly and two police officers.

This extremist Islamic attack took place almost 3 years after the magazine had published caricatures of the Prophet Muhammad.

The two men managed to flee the premises by car, but were later identified as Said and Cherif KOUACHI. The identity of a third man, Mourad HAMYD, was also broadcast as allegedly linked to the events. However after this man turned himself in, he was later released and his case dismissed.

The police kept searching for the Kouachi brothers before eventually killing them two days after the attack in the printing complex where they had taken a hostage.

After these dreadful events, the question arises : what would the terrorists have faced in court if they had been caught alive?

The interesting point in this kind of case is that the facts fall into the legal classification of terrorism, defined as acts aimed at seriously disrupting public order by intimidation or terror.

These charges of terrorism lead to the application of a special procedure, unofficially referred to as “a second procedure”.

Firstly, whereas the usual rule of jurisdiction states the competent court is the one where the facts have taken place, all the cases including acts of terrorism charges fall within jurisdiction of the courts of Paris, and therefore have to be prosecuted and tried there.

Secondly, a more obvious difference is that the statutory time limits of any part of the procedure would be increased.

As an example, the alleged terrorists, like any offender who is arrested, would have been taken into custody, and instead of the 24 hours normally allowed (and renewable once), they could have been questioned for 144 hours.

Moreover, they would have had very different rights during that initial period of custody. The person held in custody would normally be able to ask for the assistance of an attorney. If asked for, the investigators have had to wait for the attorney at least 2 hours before they could start questioning the person in custody. When there are terrorism charges, however, the prosecutor can ask the court to delay the assistance of the attorney up to 72 hours.

For the most serious offenses, the ones where the sentences can be 10 years or more, the procedure of judicial investigation is mandatory. At the end of their initial custody period, if serious or convergent evidence had been collected, the alleged terrorists would therefore have had to have been brought before a “juge d’instruction”, a magistrate responsible for conducting this mandatory investigative phase that precedes a criminal trial.

The length of this procedure varies greatly from a case to another, depending on the charges, the complexity of the facts or the number of defendants. During this phase, the alleged offender, still presumed innocent, can be held in custody, for a maximum of 4 months in the less serious cases.

Once again, the procedure would have been quite different because of the terrorism charges. The maximum duration for which the defendant can be remanded in custody is 4 years and 8 months, bearing in mind that with charges of terrorism, a bail offer is highly unlikely.

At the end of the judicial investigation, either the judge has gathered sufficient evidence and refers the case to the court, or dismisses the case.

This case would have been referred to the ‘Assize’ court, which specializes in the most serious offenses. There, the procedure would also have been particular. Indeed, the composition of the court would have differed from ordinary cases, as there would have been no jury. The terrorism cases are brought before seven judges instead of three judges and six jurors.

The trial after follows the same rules as the usual procedure, and the defendant is either found innocent or guilty, although to convict in these cases, a simple majority of the judicial panel is needed instead of a two third majority as is typical in criminal jury trials.

In the end, if the two terrorists had been found guilty and convicted, they could have been sentenced to life imprisonment with mandatory jail term.

Even if the special procedure that applies to terrorism charges already makes the prosecution so much easier than in other cases, the Charlie Hebdo attack has nevertheless brought the idea of a “French Patriot Act” back to the forefront.

Credit: Camille Molina-Brusley