For the Court of Cassation, the trial cannot be canceled due to an unreasonable delay in the investigation.
Under what conditions can foreigners be prosecuted in France for crimes against humanity or war crimes? The Court of Cassation considered on Friday the universal jurisdiction of French justice, which is at the heart of many of the procedures being carried out in Paris to fight impunity for perpetrators of such acts.
The answer to this question of the highest court, considering the appeal of two Syrians accused of crimes against humanity and war crimes committed in their country, will be given on May 12. This could potentially have serious implications for the activities of the Crimes Against Humanity Division of the Paris Court.
The Court heard the case of Abdelhamid Chaban, a former Syrian soldier who was charged in February 2019 with complicity in crimes against humanity, and the case of Majdi Nema, a Syrian accused of torture and war crimes. Both dispute the facts.
In November 2021, the court, which had already heard the Chaban case, considered that French justice was incompetent in this case, citing the principle of “double incrimination” provided for by the law of August 9, 2010: crimes against humanity and war crimes. must be recognized in the country of origin of the suspect whom France intends to prosecute. However, Syria does not recognize these crimes and has not ratified the Rome Statute that created the International Criminal Court.
This decision caused shock in the legal world and human rights organizations. The International Federation for Human Rights (FIDH), the civil party, filed an objection on procedural grounds, which allowed the case to be returned to the Court of Cassation.
In the case of Majdi Nema, a former member of the Jaih al-Islam (Army of Islam) rebel group, arrested in January 2020 in Marseille while on a study tour, the Paris Court of Appeal upheld the indictment in April 2022, considering in particular, Syrian law provides for the “equivalence” of several war crimes and offenses defined in the French penal code.
During the hearing, the parties referred to the “intention of the legislator” when he introduced this dual criminality test, as well as the “ordinary residence” test, which was also invoked by Majdi Nem’s defense to challenge his indictment.
Based on the parliamentary debate that preceded the adoption of this law, Emmanuel Pivnica, a lawyer for FIDH, considered that the double offense “does not” mean that the facts should “be treated equally”. According to Gilles Touvenin, Mr. Chaban’s lawyer, by contrast, “public authorities adhere to a restrictive interpretation of universal jurisdiction”. “You can’t change doctrine based on influence,” he began, believing it was “the legitimacy of the Court of Cassation.”
Louis Bore, Majdi Nema’s lawyer, remarked that Syria was “not cooperating”. Under these conditions, judges cannot seek judicial cooperation from the Syrian justice system, which allows for investigations for and against Syrian citizens accused in France. “Given the seriousness of the charges against the defendants and the harshness of the sentences, it is better to have no justice at all than poor-quality justice,” he said.
With regard to the criterion of habitual residence, he stressed that the intention of the legislator was to prevent France from becoming a safe haven for war criminals. But he claimed that Mr. Nema “never wanted to turn France into a haven where he could escape prosecution” as he prepared to leave after only being in France for three months.
Calling for a “flexible interpretation” of dual criminality and for universal jurisdiction not to become a “dead letter”, François Molin, prosecutor of the Court of Cassation, argued for dismissal of the appeals.
He stressed that if French justice is declared incompetent, asylum-seekers in France who reported to the judicial authorities about the suspicion of committing this type of crime will remain “unpunished” in the territory, they are not subject to extradition or expulsion.
Source: L Orient Le Jour
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