Michael McColgan’s Comments on the case of Ahmed Zaoui
By | Jan 1, 2003
By Michael McColgan : Wednesday 1st January 2003
DATE UNKNOWN
COMMENTS ON THE CASE OF AHMED ZAOUI
1. I am a solicitor, working in private practice with Howells of Sheffield. I work principally in criminal and prison law, human rights and miscarriages of justice. I have been a Director of Liberty (National Council for Civil Liberties) for several years, and for the last nine years I have been a member of the lawyers’ panel of the FIDH (International Federation for Human Rights) based in Paris. In this latter capacity I have undertaken, both alone and with human rights lawyers from other countries, missions of inquiry to Mauritania, India, Austria, Armenia and the United States.
2. More relevantly in the context of the comments which follow, I have been a member of two missions to France : one in 2002, focusing on the legal, social and political circumstances of asylum seekers at the refugee centre of Sangatte, near Calais; the other in 1998-1999, concerned with anti-terrorist legislation and its application in France. I understand that the report in the 1998-1999 mission, which I alone wrote, is available to the RSAA.
3. I have been asked to comment on the case of Mr Ahmed Zaoui, who is currently involved in proceedings before the RSAA. I have been sent by McLeod and Associates, who act for Mr Zaoui, copies of the English translations of four documents :
(i) The Judgment (Decision) of Brussels County Court of first instance, dated 3.10.95;
(ii) The Judgment (Decision) of the Court of Appeal in Brussels, dated 20.11.95;
(iii) The Judgment (Decision) of the Tribunal de Grande Instance (Higher Criminal Court) in Paris, dated 13.9.01;
(iv) A letter dated 22.5.03 from Gilles Vanderbeck of Becker & Associés, the Belgian lawyers who acted for Mr Zaoui in 1995, to Richard McLeod.
4. In addition, I have been able to refer to the text and preparatory notes of my own report from 1998-1999, as well as the basic court documents for the “Chalabi†trial of 138 defendants, the “Réquisitoire†(the prosecutor’s case against the defendants – about 500 pages long), and the “jugement†(verdicts and sentences – of similar length) of the Tribunal Correctionel, pronounced on January 22nd 1999. I have been provided with copies of documents 1, 2, 3 and 4 above in the original French and am satisfied that the translations, if not always particularly fluent, accurately render the meaning and legal terminology of the originals. I shall refer in my remarks to the page numbers of the English translations.
5. At the County Court of Brussels in 1995, thirteen defendants, including Mr Zaoui, faced a variety of charges, detailed in the opening pages of the decision : Mr Zaoui was charged essentially with possession of stolen passports and belonging to “an association formed with the purpose of perpetrating crimes against people or properties …†These charges are similar in their wording to those faced by Mr Zaoui in Paris in 2001, i.e. falsification and/or theft of passports and participation in an association of malefactors formed with a view to preparing one or more acts of terrorism (see p.6 of the French judgment). It should however be noted that the Belgian Penal Code at the time of the first hearing in Brussels did not include provisions specifically aimed at “terrorism†(see page 4 of Mr Vanderbeck’s letter).
6. There has in the last twenty years been a rapid rise in co-operation on security matters among interior ministers of the European Community, the result of which has been ever closer alignment of the pertinent legislation and procedures. This has been most pronounced in relation to political asylum, in particular in the Dublin Convention and the Schengen agreement, both of which codified the exchange of information among the signatories and led generally to a narrowing of the interpretation of the terms of the 1951 Geneva Convention on Refugees.
7. At the same time repression and national upheavals were producing ever larger numbers of political refugees from countries such as Turkey (predominantly Kurds), Sri Lanka (alleged sympathisers with the Tamil Tigers), Iraq (again Kurds and political opponents of Saddam Hussein), Saudi Arabia and – especially important for our present concerns – Algeria. In the 1990s the British and other European governments were put under pressure by many of these refugee-producing countries to stop harbouring political dissidents. In 1993 the German government responded by proscribing over 100 organisations believed to be associated with the PKK (the Kurdish Workers’ Party) and arresting many of their members. In the same year the French government bowed to Algerian pressure and banned the FIS (the Front Islamique du Salut). The FIS was on the verge of a landslide victory in the Algerian parliamentary elections in 1992 when the military stepped in and annulled the results. Those who actually staged what is described by most commentators as a military coup and their ideological successors are still in power today. It is not without significance that the “historical†summary which prefaces both the Chalabi and the Ali Touchent “requisitoires†plays down the nature of that coup. In so doing, it casts opponents of the regime which has ruled Algeria from the end of 1991 to the present day in a particularly sinister light. (See pp. 10-11 of my FIDH report).
8. Along with the increasingly strict asylum regime has gone a proliferation of anti-terrorist laws throughout the European Community. All too often the parliamentary debates around such new measures have blurred the differences between the issues of asylum and terrorism, to the extent that, for instance in Britain, the popular view is that the one is the progenitor of the other. It has been suggested, with some justification, that, were Nelson Mandela to apply today in Britain for political asylum, he might well find himself detained without charge as a suspected terrorist under the Anti-Terrorism, Crime and Security Act 2001.
9. It seems to me that both the Belgian and French charges of belonging to an “association†amount to allegations of conspiracy. And just as jurists working in the Anglo-Saxon or adversarial system find “conspiracy†a difficult, even elusive concept, so French legal commentators have had trouble in imbuing the terms “association†(with or without the “malfaiteursâ€) with substance and certainty. (See pp. 9-11 of my FIDH report).
10. In this respect, the comments of the Brussels County Court judges on Mr Zaoui make interesting reading (see pp. 13-15 of their decision). They talk of the “raising of a presumption†and of the “raising of a hypothesisâ€, about the nature of his contacts and activities, but after listing all the “presumed†activities and contacts, conclude that the prosecution has failed to provide “conclusive material proof†of his active participation in a criminal association and therefore acquit him on three charges, leaving the fourth to lie on the file. That appears to me to be a correct decision, based on the summary of the allegations provided in the preceding pages of the judgment.
11. Six weeks later, however, the matter came before the Court of Appeal in Brussels after the prosecution lodged an appeal against the lower court’s decision. The Court of Appeal’s judgment is somewhat surprising. It appears to rehearse all the evidence available to and heard by the lower Court, but to draw totally different conclusions from it. Page 17 of the Court’s decision is especially instructive. The “presumptions†and “hypotheses†of the lower Court are translated into a certainty (“there is no doubt …â€) that Mr Zaoui had “an undoubted prestige and a moral authority which have allowed him to assume the role of head or agent of the association that he commands …†His “life and activities thus appear to be surrounded by an unacceptably clandestine atmosphere,†which in turn leads the court to “form a serious, precise and concordant presumption that charge C4 against Zaoui must undoubtedly be upheld.â€
12. Compare this to page 29 of the Paris judgment six years later, where strikingly similar phrases are to be found : “state of total clandestinity†and “an important place within the FIS.†The Appeal Court decision and the Paris judgment are, in my view, of a piece. They proceed from suspicion and hypothesis to certainty without establishing in any way what the respective associations were intent on doing. Indeed, the Brussels decision (see page 15) almost makes a virtue of not doing so : “Whereas it is not necessary to find out what exact involvement the defendants’ activities were linked to, be it the FIS, the FIDA or the GIA, and whether their reasons were Algerian-based or internationally based, such a question is outside the limits of the charges under which they have been arrested.â€
13. This corresponds to the interpretation of the equivalent French provision by Mayaud, which I discuss on page 9 (col. 2) of my FIDH report. There is, I would suggest, in both these statements such a dilution of the concept of conspiracy that it becomes indistinguishable from that of guilt by association.
14. I dealt in my FIDH report (pp. 31-32) with what I saw as the shortcomings of the system which over the years has allowed the small team working under Maître Bruguière to conduct the vast majority of terrorist investigations in France. It is not possible to discern from the documents in my possession whether that team was responsible for the investigations leading to the appearance of Mr Zaoui and others before the Tribunal de Grande Instance, but the comments of the Tribunal indicate that it is simply regurgitating the allegations of the “juge d’instruction†rather than submitting them to close scrutiny. To that extent they resemble the much longer (because there were 138 defendants) sentencing remarks of the Chalabi tribunal.
15. One of the most disturbing features of the Paris case is the apparent ease with which the Tribunal accepts the word of a co-defendant, Mr Boudjaadar, as persuasive evidence against Mr Zaoui. It is axiomatic in English (and no doubt New Zealand) criminal law that the evidence of a co-defendant, even (or perhaps especially) if given on oath, should be approached with great caution. The danger of such evidence being purely self-serving, the risk that it could be the product of pressure or inducements – it is little wonder that a co-defendant’s testimony is regarded as something of a poisoned chalice.
16. One looks in vain for any hint of caution in this respect in the Paris judgment on Mr Zaoui. If there are reservations in the judgment, they are to be found in the sentences : both Mr Boudjaadar and Mr Zaoui were given suspended sentences of three years imprisonment! It is worth remembering at this point that the Court of Appeal in Brussels in 1995, in overturning Mr Zaoui’s acquittal, likewise imposed a suspended prison sentence.
17. It is difficult not to infer from these two decisions that the verdicts were somewhat political in nature, rather than soundly based on cogent evidence. If the Paris court had any qualms about the evidence of Mr Boudjaadar, the Court of Appeal in Brussels must surely have been less than wholly convinced by its own reasoning (see page 16 for the passages most blatantly implying guilt by association); otherwise it could hardly have passed such a lenient sentence.
18. Beyond the absence of compelling evidence, of course, the Paris court must have been fully aware that the allegations against Mr Zaoui dated from 1993, that his first appearance in Court to answer those allegations was over seven years later, in December 2000, and that a further nine months elapsed before judgment was pronounced on 13.9.2001. All in all, it took the French criminal justice system over eight years to bring the trial of six defendants to finality. That is quite clearly a breach of Article 5(3) and 6(1) of the European Convention on Human Rights. I have dealt with the issue of delay at some length in my FIDH report (pp. 11-14) and therefore respectfully urge the RSAA to note my comments there.
19. A cursory study of the cases where the European Court of Human Rights has found unjustifiable delay in bringing defendants to trial reveals that France is disproportionately represented among those states which have failed the test of “reasonable timeâ€. One startling statistic which I discovered during my investigations for the FIDH report was that something like 60% of all prisoners in French gaols are on remand, awaiting trial.
20. Since concluding my FIDH report, I have been able to study the Chalabi judgment in some detail, and it is clear to me that in very many cases the prison sentences passed have corresponded more or less with the time spent in prison on remand by the prisoners concerned. I can see no reason why, in a case involving only six defendants, one of whom himself supplied much of the evidence relied on by the Court, over eight years should pass before its conclusion.
21. On the other hand, I find it hard to understand how such serious allegations can be satisfactorily dealt with in the course of a mere six hearings (the Belgian case apparently took up only five hearings), of which one (8.12.00) was merely a preliminary hearing and one (13.9.01) was reserved for the verdict and sentences. As with the Chalabi case, it is obvious that the hearings consisted almost exclusively of evidence read to the Court by the prosecutor with little or no interruption in the form of live witnesses, cross-examination or testimony given by defence witnesses. In those circumstances it is hardly surprising that the Court’s judgment amounts to little more than a re-hash of the prosecution case. Little wonder, either, that the judgments against Mr Zaoui, both in Paris and in Brussels, lean so heavily on speculation and the notion of guilt by association. The fact that Mr Zaoui had been deprived of his rightful parliamentary seat in Algeria, that he had been forced to flee and live a clandestine existence, is in effect held against him and deemed to be incriminating by both higher Courts, whereas the County Court in Brussels took care not to draw such one-sided inferences.
22. Mr Vanderbeck’s letter makes it clear that, as in France, the defence lawyer does not have a right to obtain free of charge copies of the dossier being compiled on his client. A charge of 0.5 Euros per page (in France for the Chalabi trial it was 3 FrFr, roughly the same amount) is levied. If the client has no funds and the defence lawyer cannot afford to foot the bill (a huge one in the Chalabi case, where the dossier ran to 50,000 pages and “voluminous†in the Zaoui case, according to Mr Vanderbeck), the inevitable result is that there is no possibility of mounting a proper defence. It will be objected that the investigating magistrate is duty bound to uncover both inculpatory and exculpatory evidence, but my investigations into the Chalabi and other French cases reveal that the “juges d’instruction†charged with such matters have proved largely indifferent to the defence case. I deduce from the available Belgian papers that that applies equally to the Brussels cases.
23. At first glance it might appear that defence lawyers in France and Belgian are nonchalant to the point of negligence in respect of their clients’ cases. But in neither country is there any proper system of public funding which would allow the lawyer to undertake his/her own investigations, obtain copies of the dossier and generally mount a defence in a manner compatible with Article 6(3) of the ECHR. As one of the French defence lawyers put it to me in 1998, he and his colleagues were little more than “potiches†(ornamental vases) in the criminal process.
24. One of the great virtues of the adversarial system is the implicit recognition of the contradiction (when it comes to criminal proceedings) between the state and the individual defendant. It follows from that recognition that the individual should be enabled (by public funding where he or she does not have the means) to contest the state’s allegations with “equality of armsâ€. The inquisitorial system in my view, by assigning the roles of both “prosecutor†and “defender†to a state employee, loses sight of that contradiction.
25. A curious feature of Mr Zaoui’s trial in Paris is his address as recorded in the Court judgment : BP9328 Ougadougou (Burkina Faso). Mr Zaoui was tried in his absence, having had to leave Switzerland for a safe haven in Burkina Faso some time before his trial. He had been interviewed, but once only and then for no longer than an hour or two, by the “juges d’instruction†while still in Switzerland. He did not have the means or the travel documents to travel to France for his trial, let alone prepare for it and give instructions to a lawyer. Since the “juge d’instruction†and the prosecution between them had taken seven years to prepare the case for trial, there seems little justification for hearing the case in his involuntary absence. Trials in absentia run a serious danger of being one-sided and unfair, even under the adversarial system with a defence counsel in possession of the prosecution papers and with some understanding of the defendant’s case. How much worse, then, was it for Mr Zaoui, who, unable to get to Paris from Burkina Faso, was represented at Court by a lawyer, Philippe Petillault, who it seems he had neither met nor instructed and who, moreover, was also representing at least four and possibly all five of the other defendants, including Mr Boudjaadar, effectively the state’s prize witness! I understand that McLeod and Associates have tried to contact Mr Petillault to discuss the case – and doubtless also the obvious conflict of interest – but he has asked for a substantial honorarium before acceding to their request. To allow two defendants with such contradictory interests to be represented by one and the same lawyer is to countenance a travesty of justice.
26. In general, I find the documents which I have read relating to Mr Zaoui’s trials in Brussels and Paris quite inadequate as evidence of due process. The laws under which he was prosecuted are vaguely worded, leaving too much room for speculative interpretation and application. The state’s case, compiled by the investigating magistrates and the prosecution, in both French and Belgian jurisdictions, is long on innuendo and suggestion , but short on substantive proof. The trials themselves were clearly brief and perfunctory, largely if not exclusively paper exercises. His defence counsel could not possibly have taken instructions from him, and moreover should not have been representing both him and Mr Boudjaadar. And even if his defence counsel had not had a conflict of interest, the totally unacceptable passage of time together with the cost and time involved in gaining access to the dossier, would have made it impossible for him to mount a proper defence and hence have a fair trial.
27. I have referred several times in these comments to my FIDH report. I respectfully urge the RSAA to read that report in conjunction with the Brussels and Paris documents. I believe that the members of the RSAA panel will have no difficulty in seeing that the misgivings that I had four years ago about the Chalabi, the Medhi Gomri and the Ali Touchent cases are equally valid in relation to Mr Zaoui’s experiences at the hands of the Belgian and French criminal justice systems. Such misgivings, if accepted as reasonable by the RSAA, should at the very least call into question the safety of his convictions and their value in assessing Mr Zaoui’s claim for asylum.
If I can be of any further assistance to the RSAA, please contact me at the address given at the foot of this letter.
Michael McColgan
Solicitor of the Supreme Court
Howells
33 Love Street
SHEFFIELD
S3 8NW
Tel : 0114 249 6666
Email : mmccolgan@howells-solicitors.com
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