On Sept. 8, France begins the trial of 20 alleged perpetrators of the Nov. 13, 2015, Paris terrorist attacks before a Specially Composed Assizes Court for terrorism matters. The attacks, a coordinated series of bombings and shootings by the self-styled “Islamic State” group, occurred on that November day in Paris and its suburbs, leaving 130 people dead, with hundreds more injured. Throughout the trial, known as “V13” in reference to “Vendredi” (Friday), Nov. 13, survivors, families of the deceased, and associations will embark on a nine-month long journey in the search of justice and truth, revisiting extremely painful episodes for the victims as well as for the society as a whole.
The trial will raise unique challenges due to its scale, nature, and media attention, which will extend into the French presidential election in late April 2022, with a verdict expected in May 2022. While the trial in the case of the January 2015 attacks on Charlie Hebdo, Hyper Cacher, and Montrouge paved the way for this extraordinary proceeding, one of the V13 trial’s unique challenges will be to handle the participation of more than 1,800 victims acting as “civil” parties, given their personal harm in direct connection with the criminal charges under judicial review.
As lawyers representing Spanish victims in the case, we question what victims can realistically obtain from the upcoming trial, given that non-judicial compensation as well as recognition and remembrance measures have already been granted for some through State-administered mechanisms. V13 victims represent more than 20 different nationalities. For these “cross-border victims,” reconstruction and accessing administrative procedures impose additional burdens. Will the French court system be able to manage their understandably high expectations, and how will it deal with the difficulties specific to safeguarding effective participation of cross-border victims?
Special Regime for Victims of Terrorism Before French Courts
French courts differ from common law jurisdictions by combining criminal and civil procedures. Victims in France can join standard criminal trials as independent parties alongside the prosecution and the defense, and enjoy similar rights such as calling and questioning witnesses or having legal representation. Associations that can demonstrate that their mandate is to represent the interest of victims of crimes within the scope of the trial’s subject matter may also petition to join as civil parties. When a case results in a conviction, the criminal judge will immediately call for a hearing to discuss the civil claims, followed by a separate decision ordering the perpetrator to compensate the victims.
Terrorism trials such as the V13 take place in a different court system with different procedural rules: la Cour d’assises spécialement composée (Specially Composed Assizes Court). This court differs from a standard criminal court in its makeup, as there is no jury, only professional judges. Victims are also treated differently. While they can still participate as civil parties, compensatory damages are not within the court’s jurisdiction.
Instead, after a terrorist attack, victims can seek non-judicial, State-funded compensation, sometimes years before the trial even begins. This form of rehabilitation is managed by a French Administrative Solidarity Fund, stemming from private insurance contracts called Fonds de Garantie des Victimes des actes de Terrorisme et d’autres Infractions (Guarantee Fund for Victims of Terrorist Acts and Other Offences), or FGTI.
What makes France unique, though, is the creation in 2019 of the JIVAT (Juge d’indemnisation des victimes d’attentats terroristes), the first judge in the world with exclusive and centralized (in Paris) jurisdiction to rule on civil matters relating to compensation for the damage suffered by victims of terrorist acts, whether on appeal from FGTI decisions or claims for compensation against the perpetrators. The creation of the JIVAT has raised concerns – including those voiced by some victims’ associations – as there are still many uncertainties in its functioning and its articulation with the FGTI.
While the reparation procedure always occurs outside of the remit of the Specially Composed Assizes Court, the court continues to have an important role in victims’ matters, as it has the sole jurisdiction to rule on the admissibility of civil parties demonstrate, based on article 2 of the Code of Criminal Procedure, to have “personally suffered the harm directly caused by the infraction.” Such legal recognition may impact the right to seek compensation, if the victim has not been granted pecuniary compensation by the FGTI prior to the trial. Such harm includes material, physical, or psychological damage. In addition, a group of civil party lawyers of V13 victims have successfully advocated for the recognition of two additional forms of prejudice specific to terrorism – the prejudice of anguish suffered by the direct victims and the prejudice of waiting and worry suffered by their relatives. In its civil ruling on April 14, 2021, the Specially Composed Assizes Court in the Charlie Hebdo/Hyper Casher case provided important lessons on the scope and admissibility criteria for victims of terrorism. For example, it ruled in favor of admitting civil parties for harm linked to mental anguish at seeing, in the course of an attack or immediately afterwards, a direct victim’s decay, pain, and decrease in her/his physical and psychological capacities.
Satisfaction Measures and State Recognition
Victims of terrorism are often attacked as a symbol of a State or a society. For this reason, victims may often feel reduced to a “victim for public display.” This puts an additional layer of responsibility on the state to address these victims: the national security nature of a terror attack will necessarily translate into very different forms and implementations of recognition and remembrance measures than for any other type of incident.
In its 2018 report entitled “The financial support of victims of terrorism,” the French Cour des Comptes (in charge of ensuring that public funds are properly managed) recognized that the status of victim of terrorism necessarily mixes individual reparation with symbolic and collective recognition. Such an approach is echoed in the French definition of terrorism, which provides that terrorism is an act “[…] intended to seriously disturb public order by intimidation or terror.”
Laura Dolci, who lost her husband in the Aug. 19, 2003, attack against the United Nations Headquarters in Baghdad, Iraq, described in her book that “unlike other crimes, including serious ones, the victim of terrorism and the perpetrator (the terrorist) are not two dots linked by a straight line. The direct victim finds himself or herself in a triangle, whose third angle is the ultimate target of the terrorist act, namely an entire community, a government, an institution or the society at large.” This point is not only academic or theoretical, as during the 2015 attack on the Bataclan concert hall, one of the assailants was heard saying, “You are bombing our brothers in Syria and Iraq […] we are here to do the same thing to you.”
In France, this reality triggered a specific State response with the establishment of non-judicial measures of satisfaction that includes symbolic and collective recognition, commemorations, and tributes to victims. Hence, in addition to compensation measures, V13 victims have also been entitled to non-pecuniary forms of reparation such as a national medal for victims of terrorism. According to the French government, the medal “is not intended to reward merit but to recognize, through the attacks and suffering inflicted individually on the victims of terrorism, an aggression against the entire nation.” Other measures include France’s memorial museum for victims of terrorism, which is under-construction, or the National Day of Remembrance of Victims of Terrorism.
Considering the V13 trial then, as victims have already received compensation and the French government has established satisfaction measures, why are so many victims choosing to actively participate in the trial?
Challenges to Effective Participation of Victims
When deciding to participate as civil parties, victims often seek the establishment of truth, the discovery of which can be a cathartic experience and provide a sense of closure. Others will see the trial as a moment of recognition, a form of reparation.
To ensure that participation is effective and to give the benefits of full participatory rights accorded by the French civil party system, victims should be able to attend, if they choose, and meaningfully follow the many steps of the legal process, including the nine months of hearings. However, in a trial with a minimum of 1,800 victims and associations participating as civil parties and hundreds of representing lawyers, it is impossible to guarantee in-person attendance for all.
France has taken some steps in the right direction — for example, a new and dedicated courtroom has been built to seat 550 people, and secondary hearing rooms allow full interaction between the court and the parties, all within the famous 13th century Palais de Justice in Paris. Additionally, the public will be able to watch the hearings on CCTV in dedicated rooms within the building. Finally, the court has set up a “web radio” system for live streaming of audio via a secure internet link, accessible to the civil parties with a login.
Lessons for France from International Trials and Tribunals
While the web radio system is a step in the right direction, it does not go far enough. The victims of these attacks were from around the world, and many do not speak French. The lack of translation of the audio livestream essentially prevents cross-border victims from following the trial. Furthermore, the planned broadcast of the trial audio will not include any explanation of the proceedings, which will inhibit the effective participation of both cross-border and French victims who are unfamiliar with the French legal system. The lack of interpretation and accessibility risks re-victimizing the victims, a phenomenon that occurs not as a direct result of the criminal act but through the response of institutions and individuals to the victim. It may also constitute discrimination under European law.
France should build on the lessons learned and best practices that have emerged from trials at international tribunals for mass crimes and other large-scale terror trials. Before international courts such as the International Criminal Court, the Special court for Lebanon, or the Extraordinary Chambers in the courts of Cambodia, all hearings are video streamed online and available in several working languages, except for in camera hearings. Same goes for the European Court of Human Rights hearings.
In terrorism-related trials, several countries have found various ways for victims to attend trials virtually, with proper support mechanisms in place. In Norway, for example, during the trial of Anders Breivik, the court set up 17 special broadcasts to courtrooms around the country, where victims could watch together. The broadcasts allowed for a secure way to transmit both audio and visuals, as regional viewing centers would allow for support staff to be present. The British trial of the Manchester Arena Bombing also provided secure broadcasts to three locations in England and one in Scotland, so that survivors and their families could attend virtually. In that case, the U.K. Crown Prosecution Service offered the families of the victims the opportunity to meet with a prosecutor who could discuss and explain the trial process. In New Zealand, the trial of the Christchurch shootings had to contend with stringent COVID-19 restrictions. The Ministry of Justice used remote court technology to broadcast live to victims in 26 countries, as well as those in New Zealand who were unable to attend in person. The ministry also used technology and live interpreters to provide direct translation into eight languages for both those in the courtroom and those watching the stream. In addition, interpreters for 12 languages and victim-support workers were available outside the courtroom. As the ministry said, “[t]he value of this interpersonal connection with victims in their first language in such difficult and emotional circumstances cannot be underestimated.”
The above examples allow victims to better follow the trial as it occurs while also reducing the risk of re-victimization. These processes show how the judicial process can be adapted to cater to the needs of cross-border victims.
France instilled such good practices previously for French victims of terrorist acts abroad, who benefitted from exceptional measures to enable them to follow “their” trial. For example, following the March 2015 attacks at the Bardo National Museum in Tunis, which killed four French citizens, the trial was specially streamed to France, so that victims’ families could follow along. Civil parties were also able to virtually attend the trial in Mali after the 2015 Bamako attack, and participate via a lawyer who was present in the courtroom. The same should naturally be the case for foreign victims of terrorist attacks in France.
Victims at the upcoming trial, however, have only symbolic reparations to look forward to. Most of them have already received financial reparations for compensation or rehabilitation through France’s FGTI. But effective participation can be considered a form of reparations in the sense of rehabilitation. France’s civil party system will allow victims a certain sense of ownership, and the nation’s attention through May 2022 may provide remembrance and recognition. However, rehabilitation through participation for victims can only come from being able to attend the trial, in person or virtually, with proper linguistic and psychological support. If France wants to fully support victims as they seek closure from the trial, there is still a long way to go. Examples from a variety of countries show that such mechanisms are possible, and indeed, they should be the norm.