Restore French confidence in Justice. Ambition – in the form of invocation – was laudable. However, since its presentation on Wednesday in the Council of Ministers, the bill presented by Minister of Justice Éric Dupond-Moretti has received a lot of criticism from the legal world and in particular, logically, from criminal lawyers. An update on a reform that is struggling to convince.
A catch-all project that is too ambitious or not ambitious enough?
The first sticking point. To say the least, the text is eclectic. While it comprises "only" 36 articles, it tackles numerous aspects of the procedure head-on, from filmed hearings—the flagship measure, at least in terms of media attention—to the reform of sentencing, including searches of lawyers' offices, limitations on the length of preliminary investigations, and prison labor. On this last point, it should be noted that there is almost a consensus. This is worth emphasizing because it is one of the few articles in the bill to have garnered such agreement. The recognition of " social rights for detainees insofar as they are useful for their reintegration " is undoubtedly a contributing factor.
To summarize, we could organize the bill around four main themes:
The provisions relating to legal professionals. A brief overview: A Code of Ethics, prepared by the national body for each of the professions concerned, is planned for: lawyers admitted to the Council of State and the Court of Cassation, bailiffs, clerks of commercial courts, and notaries. Furthermore, in the event of a complaint, conciliation must be attempted as a first step. Finally, the well-known Article 700 of the Code of Civil Procedure, concerning expenses incurred but not included in court costs, could be amended, and Article 66-5 of Law No. 71-1130 of December 31, 1971, amended to allow " the production in court of any evidence necessary to justify the sums claimed for expenses incurred but not included in court costs ." Little controversy here.
The broadcasting (and recording) of hearings. Here, the ever-present 1881 law on freedom of the press is supplemented and augmented by a new Article 38 quater to allow the recording of a hearing " for reasons of public interest with a view to its broadcasting ." This recording is strictly regulated and defined. A second point of contention. In seeking to " bring justice into people's living rooms ," some consider the measure a "marketing" ploy or even " a gimmick that falls short of addressing the challenges " (Christian Saint-Palais, president of the Association of Criminal Lawyers, in an interview with L'Obs on April 14, 2021).
> The end of automatic sentence reduction and the prison contract. Exit therefore the reduction of automatic sentences, “ illegible and incomprehensible » in the words of the Ministry of Justice. From now on, it is the sentence enforcement judge who will deal with it. It will thus be able to grant sentence reductions of up to six months per year of detention for convicts who have “ given sufficient proof of good conduct or who have demonstrated serious reintegration efforts ". A measure considered “populist”.
Note here that pre-trial detention has also been remodeled in order to limit it only to cases where it is essential.
Haro on the reform of the foundations
Today, an assize trial takes between thirteen months and three years of hearings. The inevitable consequence: congestion which continues to increase. The objective is clearly defined: this involves reducing flows by half. “ I will ensure that preliminary investigations remain preliminary and do not last forever », announced the Minister of Justice. Third part of the reform, and third sticking point, which undoubtedly constitutes the cornerstone of the discontent relating to the project.
> The course of the (criminal) procedure. Concerned here are (1) limitation of the duration of preliminary investigations (two years + one year), “an epiphenomenon” according to Ludovic Friat, general secretary of the Union of Magistrates. Indeed, according to figures from the Chancellery, in 2020, only 3% of preliminary investigations had been open for more than three years; (2) defense secrecy, enshrined in a new preliminary article of the Code of Criminal Procedure: “ Respect for professional defense secrecy is guaranteed during the procedure under the conditions provided for by this code. ", precision being to make that " when the search is justified by the accusation of the lawyer, it can only be authorized if there are plausible reasons against the latter to suspect him of having committed or attempted to commit the offense which constitutes the subject of the procedure ". Another interesting point here, the strict supervision to say the least. connection data linked to the use of an electronic communications network or service » a lawyer; (3) and generalization of departmental criminal courts. Until now in the experimental phase in 24 departments, they should be extended to the entire territory on January 1, 2022. The results of the experiment would indeed be positive, particularly in terms of deadlines, which would be largely reduced, thus making it possible to significantly ease the congestion in the criminal courts but also to reduce the rates of recourse to correctionalization. A boon ? Not really. Because the least we can say is that this part of the bill makes people cringe. Fourth sticking point. By generalizing departmental criminal courts for crimes punishable by up to twenty years in prison, the Minister of Justice has driven a nail into his own foot. And for good reason. The former criminal lawyer himself openly contested the process, calling it “death of the assize court”! This is because many criminal lawyers are intrinsically attached to the criminal courts, a revolutionary vestige of “direct democracy” and an ideal of popular justice. In fact, in the departmental criminal courts, there are no longer jurors, but magistrates. And this is precisely where the problem lies.
The project will be examined in May in an accelerated procedure before Parliament. The magistrates' unions are already up in arms, denouncing, in addition to a lack of consultation, a total disconnection from reality and resources. Like Christian Saint-Palais, president of the Association of Criminal Lawyers, for whom the project “ comes to sprinkle scoops on provisions where sometimes no one expected it ". Worse, he denounces “ provisions […] poorly drafted and [which] leave worrying ambiguities on serious subjects such as searches of law firms ».