REFORM OF THE PENAL PROCEDURE: THE THORNY PATH TOWARDS FAIR TRIAL
Only weeks before parliamentary elections, one of the socialist government's major achievements, the reform of the code of penal procedure (Code de Procédure Pénale) entered into effect on 1 March. The reform has drawn vehement criticism from members of the judiciary, the police and even some lawyers who say it is inapplicable because of too complicated and costly procedures obstructing criminal prosecution.
Most lawyers and Human Rights organisations however view the law as a progress strengthening the principles of presumed innocence and the rights of defence.
Among other things the law sets an end to the almost unlimited discretionary power of the criminal investigation police (Police judiciaire) under the "garde à vue", an ill-famed form of police custody particular to France and restricts the powers of the investigative judge (juge d'instruction).
The ambiguous role of the "juge d'instruction"
In countries like Britain and the USA the penal procedure is based on the accusational principle: Two opposed parties (the defence and the prosecution) with (theoretically) equal rights take an active role in producing each the exonerating, respectively, the incriminating elements which will then be submitted to arbitration of the court. In contrast, the penal procedure in France, as in many other European countries, is inquisitional (procédure inquisitoire). The defendent is seen rather as a passive subject of a judiciary investigation led by an "independent and unremovable" judge, the juge d'instruction (investigative judge), who's task it is, to "establish the truth" by compiling both the elements incriminating and exonerating the suspect. Based essentially on the findings of his investigation the court will rule after hearing first the public prosecutor's opinion on the case and his demand for a sentence, and then the pleading of the defence.
According to the former penal procedure the investigative judge alone formally charges a suspect, decides on his detention on remand and other measures of privation of liberty pending the procedure, decides on habeas corpus complaints and leads the police investigation. Based on the findings of this investigation, the commission rogatoire , he then hears the person concerned and concludes his investigation by a statement of evidence summarising his findings. The public prosecutor states his assessment of the case and on the continuation of the procedure, but it is again the investigative judge who decides whether the case shall be dismissed or forwarded to the court for judgement.
Thus, the investigative judge has a dominating position within the entire procedure. The double role of the investigative judge has since long ago been a matter of debate in France. Indeed, by virtue of his office, the investigative judge is on the one hand an investigator carrying on the action of the police, o the other hand he is a member of the court with a jurisdictional role.
Although, in theory, their function consists in searching the truth in a spirit of impartiality and independence, investigative judges have traditionally tended to be more sensitive to the requirements of policing and public order than to the defence of individual liberties.
The "garde à vue"
The police can place a person under garde à vue for three reasons:
- He has been caught red-handed preparing, attempting to commit or committing an offence;
- The public prosecutor has ordered a police enquiry.
- A private person has filed a complaint.
A person can be held under this form of police custody for 48 hours (96 hours for drug and terrorism related crimes). During this period, the person is interrogated by the police without being presented to a judge or informed about the charges. According to the law in force until 28 February 1993, the person was denied both access to a lawyer and the right to inform family members or friends. Obviously, this period of total isolation was a deliberate measure aimed at obtaining early confessions from suspects under considerable moral pressure.
As a recent report by a comittee of investigation of the Council of Europe confirms, intimidation, verbal and sometimes serious physical abuse by police officers seaking to extort a confession from a person under custody are frequent in France (see also CL.No.8, p.6 ). This is particularly disquieting considering that in practice the police record based on the interrogation at this very early stage of the procedure tends to strongly prejudice the opinion of the court. Judges usually give little consideration to later retractations of a confession made under the garde à vue .
After a maximum of 48/96 hours the person is presented to the public prosecutor. Based on the record of the interrogating police officer the prosecutor will choose among four options:
- the case is dismissed without further procedure;
- the facts are obvious. The person will be presented to a court within 24 hours for judgement.
- The facts are obvious, but there is no risk that the person will flee from justice and there is no threat to public security.
- The facts are obvious but necessitate further examination.
In this last case the person is presented to the investigative judge and formally presented with the charges. According to the former procedure, after a débat contradictoire (contradictory consideration) with the accused, the defence lawyer and the public prosecutor pertaining only to the guarantees presented by the accused, the investigative judge decides, whether the person is to be set free pending the procedure, placed under some form of judiciary control (bail, confiscation of passport, etc.) or detained on remand.
Lawyers have since long ago denounced investigative judges for their discretionary use of detention on remand on very summary grounds and for other breaches of presumed innocence. The excessive number of prisoners on remand in France is often seen as a direct consequence of both the garde à vue and the institutional omnipotence of the investigative judge.
The reform
The most important progress has probably been achieved in the domain of the garde à vue . Any person in police custody now has a right to receive the visit of a lawyer (During an adaption period beginning with 1 March a lawyer may visit a person in custody beginning with the 20th hour, but from 1 january 1994 even this limit will be abolished). Some lawyers deplore that the new provisions say nothing about a right of the lawyer to see the police records and that the lawyer still cannot be present at the police interrogation. Nonetheless, the mere fact that persons in custody can now immediately inform a family member, friend or lawyer on their situation and whereabouts, is very likely to have a moderating effect on the behaviour of police officers and to bring some moral comfort to detainees who know that they are no longer completely isolated from the outer world. The beneficial effect of the new law was immediatetly visible. In the first three weeks after the entry into effect of the new law on 1 March, in no case of garde à vue the length of police custody exceeded 19 hours. This reduction of the average length of police custody alone marks an important steps towards a better respect of the rights of the individual. It is well known that the most serious encroachments on human rights tend to occur in police custody, before the person concerned is presented to a judge.
The reform also transfers the power to decide on measures of privation of liberty from the investigative judge to another judge designed by the president of the court. Before formally charging a person (inculpation), the investigative judge now opens a procedure of examination (procédure de mise en examination), during which the person concerned is "neither witness nor acccused".
Both regulations were introduced against the background of mounting criticism against the omnipotence of the investigative judge and the non-respect of the principle of presumed innocence, but most observers believe that in practice their effect will be rather cosmetical and is likely to complicate and prolong procedures.
The reform further grants the defence immediate access to the records of the investigation, introduces a list of procedural defects leading to the dismissal of a case on the grounds of nullity, and last not least abolishes a traditional privilege of the members of the Police judiciaire (PJ: criminal investigation police), the privilège de jurisdiction . This is a sort of jurisdictional immunity protecting the officers of the PJ from criminal investigation. The immunity could only be lifted by decision of a court of cassation. The "privilège" proved to be of great benefit to many generations of French politicians suspected of some wrong-doing. Indeed, not only policemen are members of the PJ, but also all mayors and members of parliament...
A storm in a tea-cup
The entry into effect of the reform, only weeks before parliamentary elections, triggered a row. Solemn appeals, calling for the immediate abrogation of the reform were addressed to the right-wing oppostion parties expected to win the elections.
All over France, investigative judges declared they would rather ask to be transferred to other duties than execute a law which was "inapplicable" and threatened to obstruct criminal investigation. Police officers claimed that the reform would jeopardise the combat against organised crime and introduce a "two speed" justice favouring Mafia criminals who could afford the best lawyers, available round the clock. Some lawyers said, the defence would be unable to benefit from formal improvments in the law because of inadequate remuneration.
"That is not all wrong, but everybody is well aware that this is not the crucial question", says Maître Henri Leclerc, vice-president of the French League of Human Rights and one of the country's most renowned lawyers. In Leclerc's opinion, "this reform is a judiciary progress. If the reform is as bad as some say, they will establish this not by obstructing it but by applicating it scrupulously and with intelligence. Only then one will see if, in order to improve justice, one will have to go further or set time back."
Three weeks after the entry into effect of the reform, Maître Leclerc's words seemed to have been heard even by the most angry investigative judges. At least, none of them has stepped back, the reform does not appear to be an issue of public interest any longer, and many observers doubt that the opposition, after its electoral victory, will really abrogate a law, which in the long run, might contribute to unburden an overcharged judiciary.
N.B.
Sources: Interview with Me Bernard Liebermann, lawyer; articles in Le Monde, February and March; Libération 8.3.93: Un progrès judiciaire, by Henri Leclerc; Neue Zürcher Zeitung, 21.1.93.