Investigating criminal justice

Here's about all that many of us trained in the common law would have to say about our Continental counterpart:

Criminal procedure in civil law countries is inquisitorial. Dating back to the Code Napoléon of 1808, it features a juge d'instruction who both conducts police inquiries and issues judicial orders. The dominance of this investigating judge makes the inquisitorial system of the civil law entirely different from the accusatorial system of the common law.

But this comparative criminal law nutshell distorts reality.

That's in part because neither the inquisitorial nor the accusatorial method is any longer discrete. Rather,

aspects of each method now occur in the other to a degree that distinguishing the two 'is almost a "metaphysical question" which is now sterile and obsolete,'

as I wrote a while back (p. 833 n.144), quoting a chapter by Françoise Tulkens (left), then a law professor at Belgium's University of Louvain and since 1998 a Judge on the European Court of Human Rights, in The Criminal Process and Human Rights (1995).

The nutshell above is also distorted because even in France, the country that promulgated the Napoleonic Code, the investigating judge long ago lost considerable power. Our colleague Mireille Delmas-Marty (below left), Chair of Comparative Legal Studies & Internationalization of Law at the Collège de France and editor of the 1995 Criminal Process volume quoted above, traced this evolution in a recent Le Monde commentary. Her essay called into question aspects of a reform package put forward in March by a committee of jurists assembled last year by France's Minister of Justice, Rachida Dati (right).

Delmas-Marty noted that the juge d'instruction used to handle 40% of all criminal matters, "making him the most powerful man in France." No more. The juge's share dropped to 20% by 1960 and shrank to 8% by 1989. Today it's a measly 4% of all criminal matters.

Why the decrease?

Among the reasons, Delmas-Marty asserted, were reforms that increased the protections owed to persons under investigation. Even as those reforms were instituted, the prosecution gained more authority to act during the preliminary phases of a criminal case, and by means less cumbersome than those of the investigating judge. Examples of that new authority:

► Since 2007 victims seeking to pursue a criminal case via the partie civile mechanism were required first to address the prosecutor, not the juge. (Aside of note: Exercise of the power of investigating judges in Spain to pursue extraterritorial criminal investigations even in the face of opposition by the public prosecutor now faces resistance. As detailed here, here, and here, the Spanish government is working to require concrete jurisdictional links to Spain and "proof that no other national court system has taken up a given case" -- even as the most noted exerciser of extraterritorial criminal jurisdiction, Judge Baltasar Garzón, faces a misconduct inquiry related to an investigation into crimes during Spain's Franco era.)

► A bill that would effect domestic implementation of the Rome Statute of the International Criminal Court likewise gives the prosecution a "monopoly" over the pursuit of international crimes.

Thus did the French system shift toward an accusatorial method -- in Delmas-Marty's view, not in a good way. Prosecutorial power expanded even as fair-process safeguards retracted. The European human rights court wrote last summer in Medvedyev v. France that

the public prosecutor is not a 'competent legal authority' within the meaning the Court's case-law gives to that notion: as the applicants pointed out, he lacks the independence in respect of the executive to qualify as such.

In her commentary Delmas-Marty urged the following "re-equilibration of powers" as the current reform effort proceeds:

► Guarantees of independence and impartiality of the public prosecutor must be reinforced.

► Should the juge d'instruction be replaced with "a new 'judge of investigation and of liberties,'" as proposed, the granting to the latter judge of genuine power to supervise the public prosecutor throughout the course of investigation. Quoting Sorbonne Law Professor Geneviève Giudicelli-Delage, Delmas-Marty called for an "'optimum distance'" between the judge and the prosecution "because if the judge is placed too close he is blinded, but if he is too far away he is blind."

► Rights of the accused and the presumption of innocence must be strengthened by allowing for greater judicial oversight of prosecutorial action and for improvement of legal aid for the poor.

► Victims who wish to proceed as parties civiles should once again be permitted ask the judge directly to open a criminal investigation.

In words applicable to any system of criminal justice, Delmas-Marty concluded:

Whether it is a matter of the investigatory or the adjudicatory phase, it is not just technicalities, but also policy, that is at stake. The legitimate desire to simplify procedures and speed decisionmaking should not result in a power shift that works to the detriment of judges whose independence is guaranteed by the Constitution and to the benefit of a prosecutor who remains under the orders of the Minister of Justice.

Still married after all these proceedings

The other shoe has finally dropped: the Court of Appeals in Douai (France) has ruled that the couple whose marriage was annulled because the bride was not a virgin is still married. As you may recall, the young bride on her wedding night admitted she was not a virgin and was taken back to her parents by her displeased father-in-law and husband, who then won an annulment on the grounds that he had made a mistake as to the bride's "essential qualities." Initially Rachida Dati (left), the Minister of Justice who herself had had an early marriage annuled, defended the annulment as protecting the parties by avoiding divorce, as divorced Muslim women are frowned upon. While protecting the parties interests is indeed one of law's essential functions, many of us quibble with the lower court's acceptance of virginity as an essential bridal quality. The Court of Appeals agrees with us:

a lie that does not concern an essential quality is not a valid basis for annuling a marriage...This is particularly true when the alleged lie concerns the past love life of the future wife and her virginity, which is not an essential quality as its absence has no effect on married life.

I must confess this ruling did not surprise me, given all the hoopla. But I've just been teaching my Introduction to Law students about judicial independence and impartiality and equality before the law and realize that aside from any hoopla or disagreement as to whether or not virginity is an essential bridal quality, there is an issue of equality before the law buried in this case: what non-Muslim couple would be allowed to annul their marriage on such grounds? Indeed, the report of the appellate judgment, unlike reports of the annulment, indicates not that both parties requested the annulment, but that the "roughly 20-year-old" bride only gave in to her "roughly 30-year-old" husband's request for fear of a long, drawn out legal proceeding. Were divorce as easy (ie lawyer/judge-free) in France as it is elsewhere, the bride's interests would have been much better protected than Dati thought they were by annulment on retrograde grounds. As it is, the girl who feared long proceedings is now apparently going to sue for atteinte à la dignité (damage to her dignity).

Dark days ahead in France

The French justice system is scraping bottom, according to former Justice Minister Robert Badinter (left).
On Thursday, the Conseil constitutionnel, France's constitutional court, approved the bill I discussed last month calling for life internment of perpetrators sentenced to at least 15 years in prison for crimes aggravés -- crimes committed with aggravating circumstances -- committed against minors. Stating that the measure constitutes “ni peine ni sanction”, i.e., neither a criminal penalty nor an administrative sanction, the “wise men”, as the constitutional judges are called, affirmed that a person who has served his or her term for a crime but is determined to still be dangerous may be interned for the rest of his or her life, as long as regular passages before psychiatrists confirm dangerousness. The doctors’ union, among others, opposed the law because, among other things, it confuses mental illness with criminal delinquency, standard practice in totalitarian societies: the state, rather than civil society, deals with social deviance (mental illness, political dissidence, or any other behavior or belief that can be labeled dangerous) as well as criminal delinquency. As first proposed, the law was to apply retroactively, another standard of totalitarian regimes that is contrary to general principles of criminal law and international human rights law. The Conseil d’Etat, the highest administrative court in France, nixed the retroactivity clause: internment could only apply if, at the time of sentencing, the judge tacked it on to the sentence. The lower house of parliament therefore approved the bill without the retroactivity clause. Under pressure from President Nicolas Sarkozy (left), his party’s majority in the Senate muscled through a version of the law with the retroactivity clause put back in. The Conseil constitutionnel took it out, thus limiting application until at least 2023, and added a further limitation: during their incarceration, persons subject to the provision must have been provided the psychological and other help necessary to their rehabilitation. The provision thus would, in theory, apply only to those who, despite such services, are determined to still be too dangerous to release. In a stunning challenge to the separation of powers dictated by the French Constitution, Sarkozy has asked the chief justice of the Cour de cassation how to get around the Conseil constitutionnel, saying "we can’t let the 'monsters' go free". One of the magistrates’ unions expressed “stupefaction”, and both unions are calling for resistance on the chief justice’s part as well as for demonstrations: art. 62 of the Constitution provides that the Conseil’s decisions are beyond all recourse, and are to be followed by all courts as well as the executive and the legislature. Standing by her man, so to speak, is the current Justice Minister, Rachida Dati (right), who says the law represents “significant progress” and that Sarkozy is justified in his challenge.
President and Justice Minister together against the Constitution. Remind you of anyone?