Exceptional procedures without a state of emergency
by Jean-Claude Paye
In the context of the attacks claimed by Daesh, the French government is proceeding with a series of reforms which will considerably expand the powers of the police and the administration to the detriment of the judicial system. Given that these reforms have no bearing on the prevention of this type of attack, which primarily require political measures, it seems that France is moving towards the installation of an arbitrary regime.
On the 9th March 2016, by a large majority and almost without debate, the National Assembly adopted a new project for the reform of criminal law «… to reinforce the fight against terrorism and organised crime» . The text still has to be reviewed by the Senate, but since it is an accelerated procedure, it only requires one reading per chamber.
The project introduces into common law certain dispositions which are usually considered «exceptional». Thus, in the text presented for the opinion of the State Council, the government confirms its intention to «… permanently reinforce the tools and means at the disposition of the administrative and judicial authorities, outside of the temporary legal framework implemented in the context of a state of emergency» .
A state of emergency without a state of emergency
Although the two texts are closely linked, this bill must not be confused with the law of the 20th November 2015, which prolongs the state of emergency for a new three-month period, while simultaneously increasing the restriction of private and public freedoms listed in the law of 1955 . This new project is aimed not only at actions, but also intentions. Although the exceptional dispositions were once again prolonged, the government has not given up the idea of reforming criminal procedure. This is an attempt to introduce the liberticidal measures authorised by the state of emergency, but without a state of emergency being declared. The project thus aims at freeing the authorities from the principle of the separation of powers, at dissolving the judicial function, and concentrating all prerogatives in the hands of the Executive and the police. The project for criminal reform also has the same objective.
The text opens the way for the legal dispositions involved in the espionage of French citizens. As expressed in the the overview of the motives for the bill, «the arsenal of prevention» set up by the law concerning Intelligence , «must be completed by a judicial appendix» . Thanks to this amendment, information obtained by false IMSI-catcher antennae, by video surveillance, image capture and the audio bugging of homes, can be used as a basis for criminal proceedings.
Formal reinforcement of the Public Prosecutor
The bill reinforces the prerogatives of the Public Prosecutor, a magistrate dependant on the Executive powers. It therefore plays its part in the continuing action of all governments – whatever the majority – which is the desire to minimise the role of the investigating magistrate, a function which is deemed too independent by the Executive. It is aimed at dispossessing the judge of the exclusivity of certain of his powers, such as the control of the procedure for intrusive enquiries, in order to hand them over to the Public Prosecutor of the Republic.
In the text voted by the National Assembly, the Prosecutor also becomes a «Director of Inquiries». He leads the «preliminary inquiries», and in this context, he is able to arraign the suspect before a court. Thereafter, he handles the prosecution during the trial which he has himself initiated. Working on all fronts, he will also bear the responsibility for verifying that the «inquiries carried out by the criminal investigation department have been carried out effectively both for the prosecution and the defence».
In inquiries placed under the direction of the Prosecutor, access to the case file is postponed until the end of the investigation. Thus, the suspect, at the moment of his accusation, has no possibility of contesting the legality or the necessity of an enquiry. Contrary to the procedure headed by the examining magistrate, access to the case file remains non-systematic. In order to «give new rights» to the suspect, and especially to perpetuate the Prosecutor’s hold over the criminal procedure, the bill introduces a reform which enables the suspect to intervene in the process of inquiry. But a reform that seems to be headed in the right direction in fact reveals itself as a perversion of the judicial system and the rights of the defence.
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