french penal system

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PERSPECTIVES ON FRENCH CRIMINAL LAW

INTRODUCTION

Based on the Napoleon Code of 1810, French criminal law was, until

recently, one of the oldest codified systems still in application. Recent reforms

(1992-1994), followed in these last months of 1997 by added revisions, have

brought the system as a whole under national attention and under the scrutiny of

anyone interested in comparative criminal law. Furthermore, the emphasis in the

political rhetoric, on security and crime control has added a dimension to the

latest legislative elections. The ongoing revisions, undertaken by the

CommissionTruche1are not only of judicial interest, they carry a political clout.

At this juncture, it is topical to understand the French criminal justice system and

why it appears to be in such a critical phase.

The purpose of the following analysis is multi-fold and broad in scope.

However it does not have the pretension to be exhaustive in its conclusions.

This study aims at raising questions, at identifying issues, and at providing

elements of reflection. It purposely leaves aside an analysis on the effectiveness

of the prison system and concentrates solely on the penal code and on the

procedural part of the criminal justice. The goal is to identify in the textof the

law, the hegemonic symbols that endure in the French legal system and whether

or not they still adequately reflect societal mutations.

Like for the study of any system, let alone one based on strict codification,

the fundamental task is a textual analysis. Consequently, this article first

provides a succinct technical and factual synthesis of contemporary French

1Pierre Truche is the president of the Cour def Cassation. He has originated a rapport under examination

for potential reforms of the penal system. The rapport entitled: Justice et Pouvoirs, Justice et Presomption

dInnocence, (Justice and Powers, Justice and Presumption of Innocence) is currently being debated (this

article is written in July of 1997). The conservative political groups seem to receive it favorably. The

leftist parties, less so, as they argue that the proposed reform does not go far enough in establishing the

responsibility of the magistrates in virtue of protecting their independence.

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criminal law, highlighting the most salient characteristics of the law and its recent

revisions. It presents the law strictly as it appears in the texts, without taking

position on its impact. This section could, if needed, be isolated and used as an

objective set of references on the technicalities of French penal law (Part I).

By contrast, the subsequent sections of the article introduce subjective

viewpoints and provide a critique of the system. Two levels of analysis are

suggested and underline the second section of the article (Part II). On a first

level, the perspective will be that of the society the system aims at protecting.

The question asked is whether or not the French system, in its conception, is

able to effectively meet the goal of crime control. The second camera or

viewpoint is that of the individual. How is he or she, at least theoretically,

protected by penal law and criminal procedure? For the purpose of clarity, these

two levels are studied successively but within the understanding that they are not

dissociable. Their dynamic interaction is an indicator itself of the conceptualized

balance between crime control and procedural guaranty. A description of the

respective weight of both is at the core of ones philosophy of the law.

In this framework, the last section offers to explain how the fundamentals

of the system and the values it promotes, fail to take into consideration new

societal challenges. This paradox is at the heart of the French justice systems

crisis (Part III).

PART I: FUNDAMENTALS OF THE PENAL SYSTEM

Two texts form the backbone of French Criminal law: the Code Pnal

(Penal Code) and the Code de Procdure Pnale (Code of Penal Procedure).

Their respective functions underline both the technicalities and the philosophy of

the criminal justice system. The Penal Code defines offenses and assigns

sanctions. Its primary function is to protect society as a whole: to ensure social

control by categorizing and defining the offenses that disrupt it. The bulk of its

content is rules on substance: what is a crime, what happens to its perpetrator,

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etc. On the other hand, the Penal Procedure Code dictates rules on the formof

the proceedings. It forms the link between the offense and the punishment. In

this manner, its major function is to ensure due process or the protection of the

individual. Both of these texts have been the object of recent reforms leading to,

if not to a new and revolutionary system (a point that will be discussed later), at

least to a revised one. What follows is a synthesis of the technicalities of the

system.

The Penal Code

The new penal code, entered into force in 1994, is the third criminal

codification in French history. As each code replaces the precedent, the present

French criminal law is based on the synthesis of three codes: 1791, 1810 and1992-94. Up until the last reforms of 92-94, the most important amendments to

the 1810 code included: the 1975 Act reforming the system of fines and

suspended sentences and instituting a number of alternatives to imprisonment;

the 1978 Act introducing the Priode de Sret(Safety Period) during which no

release on parole can occur, the 1981 Act abolishing the death penalty and the

1983 Act introducing community service order. In its format, the new penal code

is similar to its predecessors. On substance, the so-called reforms of 1992-94

show mostly elements of permanence and continuity, in spite of the introduction

of a few new concepts especially in terms of the responsibility of judicable

persons.2

Four books compose the new penal code. Book 1 summarizes the

general dispositions of the Code. It includes rules of general penal law and most

of the rules on sentencing. This general part of the code, the Partie Generale of

the new penal code, reorganizes rules that were previously dispersed in various

places of the 1810 Code or even in the Procedure Code. Most of these rules had

never been modified since 1810. Some of them had remained untouched since

1791.

2One of the biggest goals of the reforms was to better rewrite the existing codification.

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The other three books are referred to as the special part," or Partie

Spciale. Book 2 reforms the dispositions of the Penal Code relative to the

repression of crimes and misdemeanors against individuals. Book 3 deals with

offenses against property. Finally, Book 4 focuses on crimes and misdemeanors

against the nation, the state and public order.

On the substance, it is permanence and not reform that comes to mind

while studying the Nouveau Code Pnal (NCP): permanence in classification

and terminology, permanence also in reaffirming fundamental principles.

The new code reiterates a tri-fold division of offenses. The French penal

law has always identified three groups of criminal offenses:Crimes, Dlits and

Contraventions: crimes, delicts or misdemeanors, and contraventions. A

different trial court has jurisdiction over each category, and different rules of

procedure apply. In general, more serious offenses are subject to more

elaborate procedural safeguard. Penalties for crimes range from prison terms of

at least 5 years to life; misdemeanors are punishable with a prison term of more

than 2 months, not exceeding 5 years, or by a fine of more than 10,000 Francs

(around $2,000). Contraventions are punishable with a fine up to 10,000 Francs

or a jail term inferior to 2 months. The special part of the code reverses the order

of dispositions but keeps the libel of their headings intact.

Permanence of principle is also paramount. The new code, like its

predecessors is based on the fundamental principle at the core of the use of

codification: that every citizen should, with a reasonable degree of certainty,

know the potential penal consequence of any act he/she commits. He/she

should theoretically be able to identify the text that incriminates him/her, in order

to prepare an adequate defense. The pre-set strictly codified qualification is

essential to the application of this principle.3

,3 Agnes Cerf Hollender, le Nouveau Code Pnal et le Principe de la Lgalit, Archives de Politique

Criminelle (Paris: Pedone, 1994) p.10

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Consequently, the new code upholds the principle of legality which is a

real dogma in the French penal system.4 The principle of non-retroactivity of

criminal rules, and their strict interpretation is the necessary outcome .

Continuity also characterizes the new code. The special part only

crystallizes innovations that were already the object of anterior laws. For

example, the references to International Law defining crimes against humanity

had been introduced in the French legislation in 1964.5

Continuity is also present in the apparent desire to balance a certain

hardening of the repression while ensuring the protection of the individual. The

concept of safety period is consecrated, but at the same time the principle of

individualization of the penalty is maintained.6

If permanence and continuity are paramount, there is nonetheless the

emergence in the new code of a few innovations. There is a fundamental

change in the arbitrary power given to the judge. In 1824 a law had given the

judge a certain amount of leeway in its interpretation and attribution of sanctions

by introducing the principle of circonstances attnuantes (extenuating

circumstances). 1994 is a real revolution in that domain as it abandons the

principles while giving more power to the judge (the consequences of such a

change are studied below).Finally the most important change, greatly induced by the reality of

international political economy, and one that is considered to be a major reform,

is the introduction of the penal responsibility of judicableor moralpersons

while not excluding the responsibility of the decision-maker (or the physical

person).

Judicable persons, excluding the State, bear a penal responsibilityaccording to the distinctions contained in articles 121-4 to 121-7, and in

4Jean-Francois Chassaing, Les trois Codes Francais et lEvolution des Principes Fondateurs de Droit

Pnal Contemporain, Nouveau Code Pnal (Paris: Sirey, 1995)p 4455Mireille Delmas-Marty, Avnt-Prspos. Ibid. p 4346The idea to adapt the punishment the personality is not new: Raymond Saleilles developed the idea as

early in 1898. It was further developed in 1954 by Marc Ancel in his work on Social Defense.

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cases mentioned by law or regulation, for infractions committed for theirown benefits.7

Procedure

The basis of criminal proceedings is also to be found in three successive

codifications: the 1808 Code dInstruction Criminelle (Code of Criminal

Instruction); its successor, the 1959 Code de Procdure Pnale(Code of Penal

Procedure); and the latest revisions of 1992, 1993, 1995, to which we should

soon add the results of the ongoing revisions.8 Most of the revisions deal with

pre-trial detention, the rest of the procedure remaining roughly intact.

The French criminal procedure is complex and divided into distinctive

stages during which both administrative and judicial instances have a role toplay. The successive phases of the procedure described below are: the

investigation, the pre-trial detention, the trial itself, the judgment, the sentencing,

and the appeal. It is also important to note at this point the unity of all the French

judicial system. The same magistrates compose the civil and the penal courts.

The name of the court changes according to the nature of the trial. The civil

courts: Tribunal dInstance, de Grande Instance, Cour dAppelbecome Tribunal

Correctionnel and Cour dAssises according to the nature of the trial. This

principle holds true except in major cities where the amount of trials, both civil

and penal, renders the principle non-applicable.

Investigation

The first stage of the investigation of offenses is generally undertaken by

the police. Two bodies divide the administrative police forces: the Police

Nationaleoperating under the supervision of the Ministry of the Interior, and the

Gendarmerie, operating under the supervision of the Ministry of Defense. ThePolice Nationale comprises theSret Nationale, responsible for all

French territory except for the Paris region and the Prfecture de Police,

7Nouveau Code Pnal, art.121-2, al..38This article is being written in July of 1997. The legislative Assembly is still working on enacting the

reforms.

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responsible for Paris and three neighboring departments. In towns of fewer than

10,000 inhabitants the police forces are community forces: the PoliceMunicipale,

headed in towns of more than 5,000 people by a national police chief: the

Commissaire de Police. Two branches compose the Gendarmerie: the

Gendarmerie Dpartementale assigned in each department and the

Gendarmerie Mobile, acting as a standby force for special task of securing public

order. The Gendarmerie also acts as a military police force. More specific

investigation duties primarily belong to the Police Judiciairethat forms part of the

administrative police forces but whose officers are not necessarily uniformed.

The results of police investigation in criminal cases are passed on to the

prosecutor. The prosecution force is called the Ministre Publicor the Parquet.

It operates under supervision of the Ministry of Justice or Garde des Sceaux9.

The prosecution, whether represented by a judge: the Juge dInstructionor by a

chamber: the Chambre dAccusation which is in charge of the criminal

investigation, called in French, the Instruction.

Consequently, the French Code of Criminal procedure contemplates four

types of investigations and specifies the evidence gathering and arrest powers

available under each: the investigation of flagrant offenses; preliminary

investigations; identity checks; and finally the formal judicial investigation

conducted by an examining magistrate, the Juge dInstruction or the Chambre

dAccusation. The latter permits the broadest investigating powers. During the

instruction, the proceedings are in theory secret. After the gathering of evidence

is completed, the magistrate has the discretionary power to decide whether or

not a trial will take place.

Dtention Prventive(pre-trial detention)

Persons charged with felony may be detained by the examining

magistrates warrant of arrest or confinement with no requirement of written

justification, although an adversarial hearing must still be held. The magistrate

9The present revisions undertaken by Truche aim at increasing the independence of the Parquet from the

Chancellerie (Ministry of Justice) while maintaining the responsibility of the Judges.

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may only detain persons charged with a misdemeanor if the maximum sentence

for the offense is at least two years of imprisonment. In that case, the magistrate

must find after an adversarial hearing that material supervision is insufficient and

that detention is necessary to prevent interference with the evidences or

witnesses, further crimes, flight of the accused or harm to the accused. Such an

order must be motivated and is usually limited to four months. It may be

extended for additional periods of up to four months each.10 If there has been

provisional detention at any stage of the proceeding, this detention is wholly

deducted from the duration of the sentence proclaimed by the judgment.11

The Criminal Trial

Police courts deal with contraventions. Some of these offenses, the so-called first to fourth class contraventions (mainly traffic violations) are dealt

without any judicial process by the payment of a fine. In all cases there are no

appeal processes for contraventions.

If the offense is a misdemeanor and brought to trial, it will be dealt with by

the Tribunaux Correctionels (Correctional Courts), generally courts of first

instance. Once again, in these cases there is no possibility of appeal.

In case of severe felony or crime, and if the Juge dInstruction, after

preliminary investigation, has rendered a judgment of indictment (Arrt de Miise

en Accusation), the trial will be handled by the Cour dAssises (composed of

assessors who will assess the crimes)12. The Cour d Assises has full

jurisdiction to judge individuals transferred to it by the judgment of indictment. It

cannot take cognizance of any other accusation.13

The fundamental principle underlying trial proceedings is the presumption

of innocence. Consequently the burden of the proof belongs to the plaintiff, the

prosecution or Ministre Public. The prosecution has to prove the three

elements that constitute an offense: legal element, material element, and moral

10Code de Procedure Criminelle, art 143-14411Law 84-576 of July 9, 198412At minimum there are two assesseurs plus a president. They are the Court properly speaking. Asides

from them sits a jury. Assises are held in Paris and in every department.

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element. Most modes of evidence are admissible. Within certain limits, evidence

is defined as

All that which has the mind of a truth without considering the means

employed for arriving at it; when the reality of the fact has become certain,it is said that it has been proved. Every means taken to convince a Courtof a fact is called a proof.14

The parties must comply with all measures of gathering evidence and the judge

is empowered to draw any conclusion from the refusal to comply.15

While the instruction is secret and held in private, the judgment procedure

is public, oral and adversarial. The judgment needs to be rendered in the

presence of the accused.16

The accused has a right to a defense as well ascounsel. On those two points, the Truche reform proposes to reinforce the

principle of presumption of innocence as well as to allow counsel for the defense

to intervene after the first hour of the arrest, as opposed to waiting up to 20 hours

which is now the case. It would bring a drastic change to custodial interrogation

by the police during which, as of today there is no right to counsel. The right to

counsel, as it currently stands, depends upon the nature of the proceedings.

Defendants in theAssisescourts must be represented by counsel whether they

want to or not; all defendants in the correctional courts may request appointed

counsel. Counsel must be retained or appointed if a defendant is subject to

such an infirmity as to compromise his defense.17 In the police court, retained

counsel is permitted but there is no provision for appointed counsel.

The conduct of the trial itself is controlled and directed almost entirely by

the presiding judge (the sole judge in police court, the president in Assisesand in

13

Code de Procedure Criminelle, Art.231.14Trait Elementaire de Droit Civil , quoted in Henry Saint Dahl, Dictionnaire Juridique Dahl, (Paris:

Dalloz, 1995) p.35615Ibid.16The accused appears free from restraint and is accompanied by guards to prevent his/her escape, (Code

de Procedure Penale, art 318). If an accused refuses to appear, he is summoned in the name of the law by a

Huissier commissioned for this purpose by the president of the Court, with the assistance of the public

force. The Huissier draws up minutes of the summons and the reply of he accused. (Code de Procedure

Pnale art ,319).17Code de Procdure Pnale

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most correctional trials). The jury, under supervision of the judge, works in strict

collaboration with the judge, both on the determination of the illicit act and on the

choice of law. Trial usually begins with the sequestration of the witnesses, after

which the court questions the accused and receives his/her statements if any.

The parties and attorneys have then limited rights to question the accused,

usually through the intermediary of the presiding judge. The accused is not put

under oath and cannot be legally compelled to answer any of the questions, but

he/she cannot prevent the questions from being asked nor can he/she prevent

the court from drawing adverse inference from his/her silence. Next, the

witnesses cited by the parties are individually questioned by the court, in the

order determined by the court, after which the attorneys have limited rights to

pose the own questions. Finally, after the last witness is heard, the parties make

their closing arguments. The defense always closes last.18

Judgment

Judgments in correctional tribunals or police judgments need to be

motivated. On the other hand, no expressed motivation is required of the judges

in criminal matter. The principle of Intime Conviction (intimate certainty) alone

prevails both in instruction and inAssises. Before the Cour dAssisesretires, the

president reads aloud the following instructions which are also posted in large

letters in the most prominent place of the chamber.

The law does not ask the judges to account for the reasons which haveconvinced them; it does not prescribe rules by which they must specificallyweight the completeness and sufficiency of a proof; it prescribes that theyinterrogate themselves, in silence or meditation, seeking in the sincerity oftheir conscience, what impression the proofs against the accused and thegrounds of his defense have made upon their reason. The law asks them

only this one question, which contains their whole obligation, Have you aninner certainty? (intime conviction)19

18Ibid.19Code de Procedure Criminelle, art 353

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Sentencing and Attribution of Penalties

At the end of the trial, if there is no acquittal and if guilt has been proven,

the offense will be defined according to the code and the preset penalty will be

assigned. As mentioned earlier, police penalties are imprisonment, fines and

confiscation of certain objects seized.20 Penalties in correctional cases are:

imprisonment for a term in place of correction; suspension for a term of certain

civic, civil, or family rights; fines.21 Criminal penalties are both afflictive and

infamous. They include: penal servitude for life; criminal detention for life; penal

servitude for a term; criminal detention for a term; banishment; or loss of civil

rights.22

Petition for Cassation

At the apex of the judicial pyramid stands the Cour de Cassation

sometimes called Cour Suprme. No appeal is possible except in criminal

matters but all judgments are susceptible to apourvoi en cassation: a petition to

the Cassation23. Those petitions are brought on by the Parquet or by the party

aggrieved. They seek to have the court condemn the judgment under attack on

the basis of non-compliance with the rules of law. In this manner both theArrt

dAccusation(indictment) and the judgment rendered in criminal, correctional and

police matters may be annulled. If this is the case, there is a Renvoi en

Cassation. If the Cour de Cassation annuls a judgment rendered in a

correctional or police matter, it transfers the case and the parties to a court of the

same order or the same degree as that which rendered the decision annulled.24

In a criminal case, the Cour de Cassation orders transfer of the case either

before a Chambre dAccusationother than that which pronounced the indictment

in the first place, or before a Cour dAssisesother than that which rendered the

judgment.25

20Nouveau Code Pnal , art 464.21Ibid., art 922Ibid., art 7-823The verb casser means to break in French.24Code de Procedure Criminelle, art 60925Ibid., art 610

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The Cour de Cassations Jurisdiction

The Cour de Cassation may review a judgment on the ground of

inconsistency of judgment. It may annul the whole judgment or just the parts of

the decision where the nullity affects only one or some of its provisions.26 Like

most other French courts, the Cassation does not usually sit en banc(in bench)

but in panels or chambers.

These complex technicalities developed in the penal code and in the code

of criminal procedure in the text of the law and in the procedure are meant to

serve the double goal of criminal law in a democracy: the protection of society

and the protection of the individual. The task at stake now, in the framework of

the aforementioned references is to assess how French Criminal Law, in its

conception, is able to fulfill these two purposes.

PART II: THE BALANCE BETWEEN THE PROTECTION OF SOCIETY AND THEPROTECTION OF THE INDIVIDUAL

In its conception, the French penal system expresses an ongoing paradox

between the desire of the legislator to appear liberal and the realities of an

increasingly authoritarian regime. This dichotomy is revealed through both

functions of the penal system: crime control and individual guarantees.

Crime Control

An evaluation of the French criminal policy should include the interaction

between the private and public aspect of social control. One can easily agree

with Maurice Cussons statement that the social control of crime is public in its

preventive and repressive component and private in its social sanction.27

However the emphasis here is on the values carried out by the French law as a

distinct, if not isolated, component of criminal policy. The viewpoint concentrates

26Ibid.., art 612.27Maurice Cusson, Leffet Structurant du Control Social, quoted in Anne Marie Favard et Reynald

Ottenhof, Archives de Politique Criminelle, p 80.

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on the public aspect of social control. The following analysis is based on the

premise that the dynamic of French law resides in defining the crime before it can

fight it. Crime and social order are primarily legal abstractions. Within that

dynamic, textual analysis reveals what constitutes a crime and by reverse logic

what are the paramount values the French law wants to protect. It then reveals

the philosophy of punishment underlying French law.

Crime is a Legal Abstraction

The texts present crime as a legal abstraction: there is crime only if it is

included in the code and is assorted with a repressive sanction. This abstraction

seems to be motivated by the willingness to let the legislator and not a potentially

irrational collective conscience, decide what the facts contrary to the social orderare. The fundamental premise is the desire to make of law a guarantee against

the arbitrary. As a consequence, crime can only be defined as an act contrary to

social order (as opposed to religious or moral order). The notion of sin is

expunged from the law.

To only define crime as a legal reality is not without consequences. It may

offer a protection against the arbitrary, but in practice this protection is far from

being perfect. It protects against executive and judicial powers, but it definitely

gives more power to the legislator. In this framework the legislator is able to

decide, according to various economic or political constraints, of the anti-social

nature of an act. To a degree, the legislator is able to define social order. Asides

from a category of hideous crimes against which society as a whole is in

consensus (murder, child abuse etc.) the French legislation has been able to

create what Stephani et al. calls artificial delicts that vary according to

economic, social and administrative needs.28 They are for example typical of

traffic contravention, infractions against the price legislation (act of December

1986), against tax legislation, etc. The creation of such delicts by the legislator is

a symptom of the power of the law as well as an indicator of the non-static

relationship between crime and social order. Social order can define crimes, but

28Gaston Stephani, Georges Laevasseur, Bernard Bouloc, Droit Pnal Gnnral (Paris: Dalloz, 1996)

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in the present cases the definition of crimes is also having an impact on what one

perceives the social order to be.

Furthermore the legislator has to take into account collective opinion:

his/her status is dependent on it. Crime is first a human reality, but it is also a

social reality. The phenomenon of crime is an indicator of an antagonism

between the individual and his/her society. As such, crimes create a social

reaction against the individual. Some crimes are directly attacking or threatening

society as a whole, threatening public order, the nation etc. Terrorist acts belong

in that category. However when crime is only directed against one individual:

murder, assault, robbery, etc. one can agree with Stephani et al., it is also a

societal problem. There is a level of emotion, fear or feeling of insecurity, felt by

the public opinion. These emotions, in several cases are greatly fed by the

media and beyond the victim, the entire society feels wronged.29

This social reaction, just like individual behavior and crime itself, varies

with times and different economic circumstances. The question asked at this

point is what definitions of crimes, and what social responses to crimes are

reflected in the contemporary French penal system. For example, in the 70s, an

increase in criminality, especially small delinquency, impressed the public opinion

and developed a feeling of insecurity greatly reinforced by the media. It

paralleled a time of high levels of unemployment. In this context the political and

legislative power had to appear fighting both criminality and insecurity. The first

consequence was to reinforce the rigor of the penal system but also to introduce

in the penal law the Periode de Sret(or safety period), excluding the possibility

of parole for certain crimes. In this case, an overly sensitized public opinion had

a key role in the making of the law, defeating the initial purpose of a non-

emotional, non-arbitrary codification.

A second consequence of making of crime a legal abstraction is the

opportunity for loopholes." In the legal conception of the criminal phenomena,

crime only exists if it is included in the penal code. In order to be a crime, an act

has to satisfy legal, moral and material criteria. If one of these conditions is

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missing, there is, legally speaking, no crime. Consequently even if it is wronged

by an act, society will not have any recourse until the legislator erects and

defines the act as a crime. Society has no recourse if a person commits an

antisocial act within he limits of legality or using one of the lacunae of the code.

An old example provides a clear illustration of such paradox. Prior to an 1873

law, one could order food or drinks in restaurants without paying because it was

not yet characterized as theft. More seriously, and recently, crimes not yet

defined by the legislator in the domain of telecommunications and high

technologies, cannot be prosecuted. As these crimes grow faster than legislation

that has to follow a burdensome process, the problems are obvious.

Philosophy of Punishment

The philosophy of the sanction found in the texts and adopted by many

French legalists like J.M. Varrault and M. Cusson is that sanction is neither

irrational nor is it unjustified:

It is legitimate to want a Penal Code that is a glossary of clear and precisewarning. 30

They put a crucial weight on the value of the sanction and on the certaintythat it is the key to reduce criminality. Their underlying assumption, which is also

that of the present codification, is that sanctions serve a preventive function.

Their premise is that criminals act rationally. According to their writings,

The delinquent has the capacity to choose among the means andopportunities to satisfy his needs.31

Sanctions also ensure a symbolic and moral function, fixing the wrong done tosociety. It repairs a torn society, it brings back confidence. "Varault, like

Cusrson, repeats Fauconnets viewpoint in that the,

29Ibid., p 9.30Maurice Cusson, Dlinquants, Pourquoi? (Paris: Armand Colin 1981, quoted by Jean-Marc Varaut, a

Punition, Archives de Politique Criminelle, p 105.

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Utility of the sanction is not so much in the action it exercises on criminalsbut on the action it exercises on society itself. Everything takes place in aspiritual domain: images are opposed to other images, emotions toemotions, forces to forces."32

As a direct consequence of these premises, repression is on the actnot on the

perpetrator. The purpose of the law is to protect the social order by repression

of the act. Crimes and, by reverse logic, social order are defined. The definition

of a crime implies the attribution of a penalty. In this way, a penalty is

established for each offense.

The negative or at least limiting impacts of such assumptions are multi-

fold. Stephani et al. identify the first shortcoming of such premise by arguing thattaking into account only the act and its legal definition:

There is a risk to punish the offender regardless of his/herpersonalityeither with too much rigor or with excessive leniency.33

The code of procedure moderates some of those elements, but

aberrations persist. For instance, in principle the act euthanasia for merciful

reasons falls sunder the same qualification as a violent murder. The legal text onmurder does not establish a difference.34 In this perspective the criminal appears

like an

Animated dummy on whose back the judge sticks the number of aparagraph of the Penal Code, before the penitentiary administration sticksa second one which reads his cell number.35

The issues raised from the reading of the law are whether or not social

order is indeed protected by assigning a pre-set sanction to a determined crime.

It seems on the contrary that what threatens the social order is not only the anti-

31Ibid., p10632Fauconnet, La Responsabilit, (Paris: Alcan, 1928) p.227.33Stephani, .Droit Pnal Gnral . p1234Nouveau Code Pnal, art.222-1.

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social act defined by the law as an offense, but it is more the individual whose

action has revealed the anti-social nature. The Penal Law which in its conception

solely deals with the offense and its matching sanction does not deal with the

individual.

It comes down to an attack on the manifestations of evil not on itscauses.36

Secondly, it presupposes that the criminal is free to make rational

decisions. It does not take into account the social, economic and political

circumstances affecting his/her decision. Interestingly, the Code does not totally

ignore the human aspect of the crime and acknowledges certain cases of

irresponsibility, like mental illness. However, it fails to incorporate new findings

on criminology. It continues in its newest versions to privilege the traditional

premise that a list of sanctions are that many warnings and serve a preventive

function, in a realm, where criminals are mostly rational and can therefore

logically weigh the penal consequence of their decisions. This distorted, and

outdated perception, leads to strong elements of doubt regarding the codes

efficacy in preventing crime.

The Individual Protection

On the second plate of the justice scales rests the procedure: the link

between the offense and its sanction. The sophistication of the procedure is in

the French regime, like in all systems, an indication of the degree of liberalism of

regime. One can define penal liberalism as the acknowledgment of the individual

opposed to state power, as an autonomous value, implying his respect and his

dignity. Yet, once again, the positive study of the criminal procedure reveals a

dichotomy between the fundamental principles of creating an effective protection

of the individual and the legal evolution implemented to ensure their finality. The

efforts to ensure the principle of legality and that of the presumption of innocence

35Stehani, Droit Pnal Gnral, p 8.36Delmas, Archives de Politique Criminelle, p 4.

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keep on meeting hurdles and, the 1994 reforms very obviously did not solve the

issues. It is significant that three years after the latest reforms the Truche

Commission felt that the situation needed once again to be remedied. What we

see is a constant conflict between dogmatic principles on which France in

general places its pride as a liberal democratic country, and the political desire to

placate a population more and more sensitized to crime and security issues. The

legislative evolution in criminal law reflects that uncertainty and tries to reconcile

both. Under the influence of writers like Ancel emerges the conception that trial

in search of the truth should be replaced by trials with more attention given to

human rights and due process.37 However, most progressive attempts of

reforms in that sense are usually aborted. If they live on, they most often only

offer a change in terminology but fail to bring substantive changes to a criminal

legislation which in many aspects has parted from its initial ideology of liberalism.

This dichotomy appears in all aspects of the procedure: in the function of the

judge and in the application of the principle of presumption of innocence.

Principle of Legality / Function of the Judge

The principle of legality was foremost in the underlying philosophy of 1791

first Penal Code. In the spirit of the 1789 Declaration on the Rights of Man,

Cesar Beccaria summarized the principles that were to be the foundation of the

procedural system. In his words, every citizen should know what punishment he

should endure.38 As a consequence, the function of the judge was conceived as

being strictly distributive: qualification of an act, infliction of the pre-set sanction.

This concept was revolutionary in 1791 and clearly parted from the Ancien

Regimearbitrary procedures. The code of 1791 in this aspect was simple; most

definitions were clear, leaving little power to the interpretation of the judge. 1810

reincorporated this principle and provided that judges could only interpret the

37 It is in this spirit, that in October of 1988, the Minister of Justice created a commission called Penal

Justice and Human Rights.38Cesar Becarria, Trait des Dlits et des Peines (1794). Becarrias recommendations are: 1) the necessity

to have written law; 2) the necessity of an accusatory procedure; 3) the abolishment of torture and of the

death penalty: 4) fixed, and not arbitrary sanctions; 5) preventive anti-criminal measures.

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laws on incrimination which means, to find their real meaning. The new penal

code of 1994 reiterates the principle of strict interpretation."

However if the dogmatic terminology is maintained the substance has

been greatly eroded, giving increasing powers to the judge, in spite of a first

legislative attempt in January of 1993. This law had proposed to create a fully

integrated adversarial trial (with full possibility of cross examination) which would

have lessened the powers of the judge to conduct questioning. It would also

have allowed the defense to be on equal footing with the Accusation (the

Parquet) in accordance with European legislation on Human Rights. However,

after its enactment, critics abounded in saying that one could not lessen this way

the role of the Ministre Public, since in theory it was only guided by the the

superior interest of public order and the good of justice39. Attackers of the

principle of cross examination insisted on the fact that cross examination greatly

increases the length of a trial and therefore could only exist in countries where

plea bargaining is an admitted practice. A new law enacted in August of the

same year, reverted back to old methods of questioning and aborted the

substance of the January law.

More power is also given to the judge in correctional mater. The most

recent reforms instate a single judge in correctional matters, parting with the

collegiality rule, which had the merit to lessen the discretionary power of any

single individual. This is especially true in a context where the conviction intime

of the judge (intimate certainty) serves as a fundamental criterion.

The function of the judge in assigning penalties is also the prey of a

paradox. The incorporation of the individualization of the penalty40 is a double

sided concept as it gives much more discretionary powers to the judge. As early

as 1897, Raymond Saleilles evoked the necessity to individualize sanctions and

to adapt them to the seriousness of the offense, its social impact and its real

39Gabriel Roujou de Boube, La Procdure Pnale: Bilan des Reformes depuis 1993 (Paris: Dalloz , 1995

p.134.40Theodore Papatheodorou, Pa Personnalisationdes Peines dans le Nouveau Code Pnal Francais,

Revue de Science Criminelle et de Droit Pnal Compar, (Paris: Sirey, January-March 1997)

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nature according to the personality of the offender.41 Subsequently, this principle

was reinforced by Ancels movement on Social Defense, the expansion and

impact of criminology in the 80s, and of course the preeminence of Human

Rights issues in public lifes rhetoric in the last decade. Individualization of the

penalty was used in practice but was not law. The New Penal Code has

incorporated it as a norm and declares that

Within the limits of the law the judge pronounces the penalties and definestheir modalities according to the circumstances of the offenses and thepersonality of the offender.42

Individualization has become a technique of justice and equity susceptible

to give to the act of judging a subjective dimension. It gives the judge the

possibility to choose among the existing pre-defined penalties, which one is the

most appropriate and efficient. It obviously increases the discretionary power of

the judge and has paralleled the demise of the principle of extenuating

circumstances. As a principle, extenuating circumstances are taken out of the

law43. The judge is now sole responsible of the level of rigor he/she wants to

incorporate in the sanction.

Presumption of Innocence

In virtue of constitutional Rights of 1789 and of the Declaration on the

Rights of Man: every man is presumed innocent until declared guilty." This

cornerstone of the French criminal Justice system is also the prey of a dichotomy

between philosophy and legislative practice and of the balance between an

apparent liberalism and authoritarian practice. This paradox appears during all

the successive phases of the procedure, starting with the role of the police.

The most flagrant example resides in the law of 1981 entitled Scurit et

Libert (Safety and Liberty). As a result of increased feeling of insecurity in

p.15.41Roujou de Boube, Bilan des Reformes, p.124.42Nouveau Code Pnal, art.132-2443Code de Procedure Criminelle

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France due to a varietyof factors, but concentrated on immigration issues, the

legislation enacted a law authorizing, among other things, arbitrary police checks

of identification and working visas. It extended police practice outside the limits

of judicial investigation, creating a huge political and social controversy centered

on human rights issues. As a consequence the Conseil Constitutionneldeclared

in1993 that the practice of generalized and discretionary control of identifications

was incompatible with the respect of individual freedom. However a law of

August 1993 circumvented the Conseil Constituitionnels decision and enacted

that one could be controlled regardless of behavior, provided that sufficient

guarantees were provided.44 Interestingly, the level of guarantee was not

determined in the text of the law, which of course confirmed the discretionary

power of the police in terms of arrests. Most of the controversy of that time

focuses on the fact that looking like an immigrant (understanding an immigrant

from North or Sub-Saharan Africa), was a presumption of guilt in itself.

Further ambiguity on the principle of presumption of innocence is apparent

during the phase of instruction (or pre-trial phase). Traditionally, the pre-trial

phase has received the harshest criticism from Civil Right proponents. As a

consequence, reforms and new legislation have attempted to promote a more

liberal perspective insisting on the respect of individual rights. For example a

1993 law has introduced the right for someone brought in custody to call family,

to be seen by a doctor, to talk with a counsel, and to have, if needed, the service

of an interpreter.

However, most of the changes have focused on terminology and very little

has happened on substance. It is clearly illustrated in the pre-trial detention.

Prior to 1993, the Code of Procedure defined pre-trial detention as the

inculpation or indictment of the person accused. The French world derives from

the Latin word culpaor guilt, which created a biased confusion in the mind of the

public opinion. The law of January 1993 attempted to remedy the problem by

changing the terminology: inculpation became mise en examen or examining

phase. People are thus reminded that indictment is not a condemnation. But it

44Code de Procedure Criminelle art 78-2.

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suffices to read art.80-1 of the code in its revision of August 1993 to see that the

mise en examen continues to affect the presumption of innocence. The Juge

dInstructionhas the power

To indict anyone against whom exist clues leading to assume that he/shehas participated, as the author, or as an accomplice, to the fact for whichhe/she is apprehended.45

The terminology change from inculpation to mise en examen is an illusion.

Citizens and media still consider a person mise en examenas being inculpe.46

Even, President Jacques Chirac in the traditional televised speech of July 14th,

described the presumption of innocence as a

Right that is daily disregarded in France. I am not talking aboutbusinesses, but also about people, small delinquents, or presumeddelinquents, who every day see their rights trampled, their life put upsidedown, and for things which in reality don t exist.47

As a consequence the person indicted is likely to feel that the pre-trial detention

is the beginning of penalty, objectively because of the detention, and subjectively

because of the attack on his/her reputation. The problem lies not in the pre-trial

detention in itself but the fact that it is often perceived and used as the beginning

of the sanction or as a way to condition confession. This last aspect is even

more crucial that French law does not disregard confession as evidence.

The secret of instruction compounds this problem. The instruction is in

principle secret in order to guaranty the independence of the decision to go to

trial as well as to protect the reputation the person indicted should there be a

non-lieu.

Procedure during the preliminary investigation is secret. Any oneparticipating in the procedure is bound by professional secrecy.48

45Boube, , p.40.

47http://www.yahoo.fr/actualite/970714/politique/

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This complete secrecy is inconceivable in a modern society where media and

communication are everywhere. The dilemma, present in all modern

democracies lies between individual rights and freedom of the press. This

impasse was embodied in the 1993 January law which reiterated both principles

presumption of innocence but also freedom of the press, without offering a

solution. The TrucheCommission and the rapport presented at the beginning of

this month (July 1997) try to regulate some publicity surrounding trials. However,

in spite of its ambitious title of Justice and Presumption of Innocence it does not

go very far in changing the existing application. Most instructions are not

secrets, attacking that much more the true meaning of presumption of innocence.

These few examples illustrate how ambiguous the French penal law is. Its

rhetoric and terminology are liberal, but its interpretation does not hide persisting

elements of authoritarianism. The system vacillates between the two, and

reveals intrinsic conflicts in its very formulation. This partly explains the crucial

crisis the penal regime is facing now. An analysis of the causes of this crisis is

the task at stake in the final section of this overview.

PART III: A SYSTEM IN CRISIS

The crisis of the French system is symptomatic of the ongoing

contradiction of providing old responses to new challenges. The judicial system

is not the only victim of that approach. The political and economic organization

seems to follow the same path. As Alain-Gerard Slama clearly puts it, Our old

French culture staggers under the attacks of globalization.49

It is unfortunate that French society as a whole seems to hang on to that

old culture." There is in the country a strong resistance to adaptation. Instead

of transforming itself, the French society prefers to change its government or the

content of its laws. The latest elections are an illustration of such behavior. In

this manner, people put all their faith in a national system which in European and

48Code de Procedure Criminelle49Alain-Gerad slama, le Besoin de Justice. le Figaro Magazine June 27, 1997, p 5.

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international terms can no longer be the paternalistic entity the French

Republican tradition had built. As a result, French society keeps on being

disappointed and expresses it in times of elections, but keeps on reproducing a

politico-judicial system that carries its own obsolescence. Thus, among all the

problems facing French society, that of the justice system is by far the most

fundamental. Exogenous and endogenous challenges put the French penal

system under attack. Its inadequacy in facing either of them perpetuates its

crisis.

The international political economy is moving towards a widening

interdependence. Crime is not exempt from globalization: terrorists, drug cartels

and money launderers work transnationally. Paradoxically, the French penal

system reflects an outdated nationalistic conception of justice. The 1810 Code

was written in time of national construction, but the context is definitely different

at end of the 1990s. Yet, the latest revisions do not seem to take into account

the European construction or the development of extra penal sanctions. It is

regrettable that a codification for the 21stcentury should be conceived on a 19 th

century model.

A code can no longer be built like an isolated monument but should be

conceived as part of a whole, enlarged to other punitive disciplines andsubject to extra national references50

Indeed, the special part of the penal code does not include any specific

references to Europe. Even more surprisingly, it was being voted at the

Parliament at the very same time that the Maastricht Treaty negotiations were

taking place. It was just as if the Parliament was having problems thinking of

Europe in a legal perspective. Similarly, in the General Part of the code, the

Universal Jurisdiction principle is limited to the protection of national interests,while several countries including England have extended the application of the

principle to the protection of the Unions finances. Germany, Italy, and Portugal

have also introduced in their criminal law, specific dispositions regarding financial

50Ibid., .p.6.

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frauds affecting the interest of the community. It is the more regrettable that it is

bound to lead to conflicts, as several supranational norms are part of French law

in virtue of the direct applicability of the European Convention.

Globalization has also put the nation-state under attack. The weakening

of the state is leading to the increasing strengthening of inner circles where social

relationships still work. Allegiance to the nation-state is being replaced by

allegiance to ethnic or religious communities or to street gangs in some cases.

The old universalism, on which republican law was based, is heading toward a

progression of particularism.

1810 reflects a rural France, attached to traditional values, like the

legitimate family and a rigid sense of morality. Today on the contrary,France is an industrialized country with different values, where groups ofindividuals have taken considerable importance51

The new Code does not take into consideration those particularities." It

carries on in its redaction and in its procedure a conception of justice which only

knows of the individual what he/she does, not who he/she is. The system is still

under the myth of equality in front of the law, while in practice, in judicial and

police investigation, during pre-trial detention, and in the sentencing phase, it

constantly has to answer to a society which is no longer homogenous.

The collapse of the Soviet Union has also put the traditional Cold War

democracies under scrutiny. Without the Soviet danger, liberal societies are

increasingly questioning the huge power given to the executive branch by the

judicial and legislative authorities. In France, a recent survey shows that 82% of

the population accused the justice system of being too dependent on the political

power.52

This leads to a second level of contradiction bringing in endogenous

factors. The nation-state is weaker internationally, but on an internal level, there

is an increase of the role of State in public affairs. As a consequence, citizens

51Revue Pnitentiaire et de Droit Penal. p 118.52Figaro, p 7

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expect an increased protection from the State, and its institutions. If the system

fails to ensure this protection, they blame the group in charge and replace it. As

a consequence the leaders and elected officials are tempted to multiply the rules,

norms and codes devoted to the protection of their own function. This explains

the waves of penal reforms that France is enduring. The core of the problems of

reforms is that they are designed and enacted by the legislator, not by the judicial

system, which in theory is independent. Consequently, the reforms reflect the

public opinion and the need to satisfy it immediately. Legislators have to placate

a public opinion, on which it depends. It leads to an ongoing political malaise as

the same opinion is tired of the political system as it is, and mistrusts the justice

system. The constant reforms are actually in a lot of ways defeating their

purpose. The law has started to appear like a fluctuating element, a politicized

caricature of what it should be. About a recent reform, Pierre Chanbon (counsel

for the Appeal Court in Versailles) was making a statement which perfectly

reflects the ongoing climate:

Justice, which is a serious thing, should not be changed every six monthsby the legislation. The new law is unlikely to change any of my positions,since in that domain laws are lasting no longer than roses.53

As a result, the reforms themselves are not trusted, and there is increased

dissatisfaction in the criminal system. Simultaneously and in spite, or perhaps

because, of its lack of efficiency there is an increasing demand for justice,

bringing on yet another level of contradiction. The French society is increasingly

becoming a place where law has been rendered commonplace. There is an

intensification of an American like judiciarization of the social exchanges: every

social relationship tends to become a legal one and justice has started to

encompass moral. Law has become omnipresent under the pressure of a social

demand increasingly insecure and impatient. The ongoing trial against

corruption, privileges, political scandals, and malpractices cannot be interpreted

53Boube, Procedure Penale, p62.

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as a maturing of the system. For Antoine Garapon these excesses show the

symptom of a decline in responsibility and an increase of intolerance.54

The growing need for justice overloads the system, which creates anger,

frustration, and exacerbates social tensions. It is further heightened by the gap

existing between the instantaneousness of the information given by the media

and the length of the procedure.

It is obvious that presently in France, the increased need for justice does

not represent a sign of progress but a regression of the idea of justice. However,

justice is not sick in itself, the law is. The constant reforms and revisions cannot

hide the contradictions of an outdated system trying to solve modern issues.

54Antoine Garapon, Le Droit, Mal Aim de Notre Histoire, Figaro Magazine, June 1997, p.13.

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BIBLIOGRAPHY

All the sources used for these articles are in French. The author is responsiblefor the translation.

Books

Centre de Recherches de Politique Criminelle. Archives de Politique Criminelle.Paris: Pedone, 1994.

Dahl, Henry. Dictionnaire Juridique. Paris: Dalloz, 1995.

Delmas-Marty, Mireille. Les Grands Systemes de Politique Criminelle. Paris:PUF, 1992.

Delmas-Marty, Mireille, ed. Nouveau Code Pnal. Paris: Sirey, 1995.

Delmas-Marty, Mireille, ed. Revue de Science Criminelle et de Droit PnalCompar. Paris: Sirey, 1997.

Favard, Jean. Les Prisons. Paris: Flammarion,1994.

Foucault, Michel. Surveiller et Punir. Paris: Gallimard 1975.

Gassin, Raymond. Criminologie. Paris: Dalloz, 1994.

Mhaignerie, Pierre, ed. Le Nouveau Code Pnal: Enjeux et Perspectives.Paris: Dalloz, 1994.

Pradel, Jean. Droit Pnal Compar. Paris: Dalloz, 1995.

Revue Penitentiaire et de Droit Pnal. Paris: Cujas, 1993.

Roujou de Boube, Gabriel. La Procdure Pnale: Bilan des Rformes depuis1993. Paris: Dalloz, 1995.

Stephani, Gaston, Levasseur, Georges and Bouloc, Bernard. Droit PnalGnral. Paris: Dalloz, 1997.

Stephani et al. Procdure Pnale. Parisi: Dalloz, 1996.

Tulkens, Francois and Beernaert, Marie-Aude. Code Pnal. Brussels: Bruylant,1995.

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Articles

Garapon, Antoine. Le Droit: Mal Aim de Notre Histoire. (June 1997): 13-15.

Slama, Alain-Gerard. Le Besoin de Justice. Figaro Magazine (June 1997): 5-7.

french penal system

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