As the Covid-19 coronavirus epidemic takes hold of France, and while the nation grapples with adjusting to the officially imposed drastic “lockdown” on movement, there is one largely unseen section of the population that is particularly exposed to the threat of propagation of the virus, and the implications are causing serious concern for them, their families, lawyers and justice officials; they are the more than 70,000 people locked up in French prisons.
On Tuesday, a 73-year-old man jailed one week earlier in the prison of Fresnes, south of Paris – and one of the largest in the country – died in hospital after he was tested positive for the Covid-19 virus. The justice ministry reported he had been suffering from diabetes, and was already infected before arriving at the prison on March 8th.
Also on Tuesday, France’s controller-general of prisons and detention centres (the head of a public but independent body that acts as a watchdog on the rights of inmates), recommended reducing the prison population “to a level that is not superior to the [official] capacity of establishments”, by “favouring” the conditional release of some and “limiting” new arrivals in jails.
More than half of the number of people detained in France’s prisons are held in establishments that are overcrowded at a level of 120% of their official capacity, according to figures compiled in January by the Observatoire International des Prisons, the OIP, a French NGO for the defence of prisoners’ rights. Many house inmates in dire insalubrious conditions, as recognised in separate justice rulings to date in France and by the European Court of Human Rights concerning 33 prisons in mainland France and six in the country’s overseas territories.
Warning that the unhygienic conditions in French prisons are rife for the spread the Covid-19 virus among inmates, the OIP and several unions representing lawyers and magistrates issued a joint statement on Wednesday to sound the alarm. “Confinement, difficult on the outside, is almost impossible in prison,” they said. “[The situation] threatens, at any moment, to strongly increase tensions and to cause riots like those that took place in Italy. In overcrowded establishments, sometimes insalubrious, the measures for prevention and treatment are inapplicable.” The statement called for the early release of certain categories of prisoners to alleviate the conditions, which the co-signatory 'Association of lawyers for the defence of prisoners’ rights has suggested could include inmates who are nearing the end of their sentence and those placed in provisional detention.
In face of the threat of a deadly epidemic in the jails, French court magistrates and others who sit on separate sentencing bodies are now faced with major dilemmas, including practical issues, over the early release of inmates and more lenient sentencing, such as conditional bail, for those who they would in normal times hand prison sentences to.
“We have to take into account what’s going on,” said one magistrate, speaking to Mediapart on condition of anonymity, like others in this report. “People’s lives are at stake. What is the sense of the sentence? What is absolutely necessary? Prison must be limited to urgent cases of the eviction of a person from society.” Another commented: “If I was [French President Emmanuel] Macron, I would take a decree pardoning all those for who there remains less than six months, or one year, to serve. It would be a way of moving towards individual occupation of cells and the isolation of those who are ill.” He added that this issue involves “giddying political issues”, and that “Our manner of administrating justice, defining good and bad, finds itself hit headlong”.
A Paris-based examining magistrate – judges who have the role of leading judicial investigations into suspected serious crime – said he had already begun to receive requests for release from preventive detention based on the danger of the Covid-19 epidemic. He argued in favour of a presidential pardon for those serving short prison sentences. “It would be a political decision that is taken in that spirit, and magistrates would not be put in the complicated situation of having to juggle with the criteria.” For behind the closed doors of his office he is involved in just that as he re-examines cases of provisional detention, trying to balance the guarantees that can be given, the gravity of the crimes someone is accused of, their age, state of health and past behaviour.
“It is a whole lot of ethical dilemmas, but also technical and practical problems,” he explained. “If everyone remains in prison, we’ll have a problem of public order. Would it not be preferable that the least dangerous are let out? And the crisis situation raises the question about the ‘none-crisis’ situation, it leads to one asking oneself if all the placements in preventive detention were strictly necessary, if we haven’t found ourselves distant from the criteria.”
One magistrate said the situation reminded them of the aftermath of the November 13th 2015 terrorist attacks in Paris, when the so-called Islamic State group committed a series of shootings and suicide bombings which left 130 people dead and more than 400 others wounded. “The next days, the following weeks, everything seemed derisory because the most important thing is simply life. When a thing like that lands on you, [you think that] perhaps, in the end, the imprisonment order is not so important, and that one doesn’t have to ask for it,” he said. “After November 13th, everything that was [a case of] ‘justification’ [of terrorism], on the other hand, gave way to disproportionate sentencing. Now, if there is a guy has a go at a doctor, or who blows a fuse in a hospital, he’ll go down for six winters.”
France has a system of fast-track trial hearings, called audiences de comparution immédiates, when an arrested person can be sent by the prosecution services before a magistrate within hours of being placed in custody. One such case was heard in Paris on Monday, the day before the lockdown began, involving a man arrested at the weekend during disturbances at a ‘yellow vest’ protest in Paris. Lawyer Raphaël Kempf represented the man. “It was out of this world,” he said. “The police ensured safety distances [Editor’s note: to reduce risk of infection from the coronavirus] between members of the public,” he recalled. “The prosecutor demanded preventive detention, without mentioning the health situation but raising the risk of repeat offending if my client went back to demonstrating. Finally, he was given conditional bail, with an order banning him from travelling to Paris and the requirement to regularly clock in at a police station.”
The courthouse in the Paris suburb of Créteil last weekend was due to hear fast-track hearings of 26 defendants. One of the cases was that of a couple, in which the man was accused of regularly assaulting a 15-year-old, and the woman of failing to report the violence. On the Friday evening, the woman, held in custody, had complained of having a fever, coughing and aches and pains. She asked to see a doctor, but although the police requested one it took 23 hours before she was examined. Because she displayed all the symptoms of Covid-19 infection, the Creteil prosecution services decided to confine her to a cell, before releasing her on conditional bail. Her partner, who displayed no symptoms of the infection but who may also have been infected, was placed in a cell with another man. He was then sent to the Fresnes prison before appearing before the court on Monday, when he was sent back to jail.
“We’re told we’re irresponsible when we don’t respect the lockdown or the behavioural safeguards, yet the virus is being introduced to Fresnes,” said lawyer Aude Lequerre, who represented the couple.
'It is an exceptional situation,' says a magistrate
On Tuesday evening, after the announcement of the death of the inmate at Fresnes from Covid-19 infection, a member of the prison service, speaking on condition his name was withheld, told Mediapart that the prison had become, among French jails, “the epicentre of the illness”.
Contacted, a spokesperson for the prosecution services said they could not comment on court decisions. But a circular, issued by the justice ministry dated March 14th (see the full text, in French, by clicking on the 'More' tab at the top of this page) “invited” prosecutors to “adapt” their approach “to limit cases sent for trial to those about events for which an imprisonment measure appears indispensable”.
Another defence lawyer present at the hearings in Creteil last weekend is Adrien Gabeaud, who represented a public sector employee who was due to help with the organisation at a voting office during last Sunday’s local elections, and who was accused of failing to comply with a police check and for possession of a flash-ball gun. “Although he has no criminal record, and that I presented his work contract, he was nevertheless detained in Fresnes [prison] for the weekend, said Gabeaud. “On Monday he was tried. He was given a simple suspended sentence.”
Some police officers complain that the state is struggling to respect its own safety recommendations. One officer, speaking on condition of anonymity, told Mediapart of an incident in a police station close to Paris, when a man taken into custody for questioning presented covid-19 infection symptoms. “We are showered with notes explaining the precautions to take,” she said. “For example, in this case we know that the cell in which the individual was kept in custody should be cleaned. The problem is that we have the note detailing how the cleaning should be carried out, but we we’re still waiting for the [appropriate cleaning] products.”
Meanwhile, in an effort to slow the spread of the coronavirus, it was announced on Tuesday, along with the partial closure of courtrooms, that prison visits by the families and lawyers is suspended until March 31st. This was accompanied by the provisional closure of so-called “family life units”, which are small studios that allow prisoners intimate contact with those close to them. The move has already prompted riots in prisons in Grasse, south-east France, and Perpignan, in the south-west, amid fears of more widespread revolts as has occurred in Italy following similar measures. On Thursday, the justice ministry announced that to ease the isolation now imposed prisoners would be given a monthly 40-euro credit for phone costs.
Enlargement : Illustration 2
Some lawyers, concerned about the threat of a looming epidemic in prisons, are filing requests for the provisional release of their clients. “We are re-applying requests for release for the population at risk, inmates who are elderly or sick,” said Jean-Yves Moyart, a lawyer based in Lille and specialised in criminal law. “One of my clients, a man aged 55, has been due to be operated for an abdominal hernia for the past 18 months. The operation is constantly postponed, and in any case there are far too few doctors in prison. He would have more chance of being cared for outside.”
In the March 14th circular addressed to magistrates, when the justice ministry requested that the prosecution services limit the numbers of people sent for trial and held in custody to the most serious cases, it advised the freezing of certain investigations, and the eventual loosening of some conditional bail requirements, such as the clocking in at police stations. Short prison sentences may be deferred, it suggests, while those inmates with less than a year more to serve can be freed “for serious reasons, of a medical, family, professional or social order”.
But in practice, the situation is complex. “In my jurisdiction, the authorisations for [temporary] release have been withdrawn to avoid the coming and going of inmates and to respect the confinement regulations [to limit the virus epidemic], whereas it’s a pressure release valve for prisoners,” commented one sentencing magistrate.
One of her colleagues, Émilie Rayneau, based in the north-west town of Nantes, and who is a regional head of the magistrates’ union, the Union syndicale des magistrats (USM), said there were several issues that needed clarification, such as “How can prison overcrowding be managed? What are the bail conditions [alternative to prison sentences] that we could most easily grant?”
“The problem is that we can no longer have electronic tags placed because the staff no longer travel to check the technical situation, and partial release measures are limited in order to avoid crowding people in centres […] What remains is conditional bail granted halfway through the sentence. Also envisaged is being more lenient in reducing sentences, in concertation with colleagues in the prosecution services. It is an exceptional situation.”
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- This is a slightly abridged version of the original report by Mediapart in French that can be found here.
English version, with some additional reporting, by Graham Tearse