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4 | 2008-2009
The Letter
Academic year 2008-2009
Selected papers

The parquet, a key issue in penal reform

Mireille Delmas-Marty
p. 48-50
Cet article est une traduction de :
Le parquet, enjeu de la réforme pénale

Notes de la rédaction

This text is an abridged version of a talk delivered at the Académie des Sciences Morales et Politiques on 25 May 2009 and published in Le Monde on 26 May 2009.

Texte intégral

From left to right: Prof Mireille Delmas-Marty, Mssrs Michel Albert, Jean-Claude Casanova, Jean Mesnard (members of the Institut - Académie des Sciences morales et politiques).

© Jean-René Tancrède

1‘Born’ in 1808 with the Code d’Instruction Criminelle (criminal investigation code), the juge d’instruction (investigating judge) was for a long time the emblematic figure of the penal process. This situation stemmed from the fact that the phase in which a case was examined, between the discovery of a crime and the actual trial, often determined the outcome. Responsible for the investigation, like a police officer – and moreover qualified as an officer of the police judiciaire (criminal investigation department) and placed under the authority of the parquet (the public prosecutor’s office) – the juge d’instruction was nevertheless still a judge and could use all means of restraint, including detention. At the time, when 40% of penal cases were examined by him, he was considered to be the most powerful man in France.

2Today, 96% of all cases are out of the juge d’instruction’s hands. Does this mean that penal cases, which have become simpler, are immediately ready to be brought before court, without preliminary investigations? In the age of globalization, financial crimes and illegal trade on an international scale, this hardly seems likely.

3So, why have things changed so much? That is a long story going back to the introduction of lawyer into the juge d’instruction’s chambers (1897). As the inquiry became more and more ‘contradictory’, the police investigation steered by the parquet, without the lawyer’s participation, played an increasingly important role. Initially unofficial and then enshrined in the Code de Procedure Pénale (criminal procedure code) in 1958 under the term ‘preliminary investigation’, this situation enabled the parquet (which simultaneously lost the power to choose the judge) to directly refer a case to court for judgement without it being examined by a judge.

4Gradually it became clear that the more the examination of a case was judiciarized, in line with constitutional and European principles, the more parallel procedures developed. This took place to the detriment of the investigation by a judge which in 1960 was down to 20% of penal cases, in 1989 to 8%, and in 2009 to 4%. The commission for penal justice and human rights pointed out this paradox in 1990, emphasizing that an overall reform had become necessary.

[…] Why reform?

5Legal texts and practices have evolved over the past twenty years. Yet the main problems identified in 1990 have not all been solved, and reform is more necessary than ever before, for at least three reasons.

6First, the incompatibility of the juge d’instructions two functions (both investigator and judge) is remedied only partly by the creation of a juge des libertés et de la detention (judge of freedom and of detention), and the strengthening of the right to legal defence. The Outreau affair showed that the juge des libertés had difficulties exercising real control, while the average duration of the examination phase doubled between 1990 and 2008. A law passed in 2007 was an attempt to solve the problem by providing for the creation of a collegial system but its application was postponed for financial reasons (to 2010, then 2011). In the meantime, a decree has set up centres of investigation and the extension of co-referral of cases to court (assigning difficult cases to two judges), but the juge d’instruction’smarginalization is continuing.

7Second, during the same period the parquet has grown considerably, thus aggravating the confusion of powers. In some instances this institution has the role of juge d’instruction and in others, through the play of ‘alternatives to prosecution’ and simplified procedures, that of an authority with quasi jurisdiction to pass judgement. Its powers of investigation are facilitated by the possibility of by-passing the juge d’instruction and directly requesting the juge des libertés to authorize coercive measures (searches, access to computerized data, security checks, etc.). Moreover, the creation of investigating departments in the various parquets, based on the model set up at the Paris court, makes it easier for these offices to take over the examination, but without a lawyer. This takes us back to the situation before the Legal Act of 1897. At the same time, the parquet remains the authority that decides on prosecution and can dismiss a case, not only for a lack of evidence but also as a matter of discretion. Traditionally, application of the principle of discretionary prosecution was the victim’s possibility to associate in a court action with the juge d’instruction, but since 2007 the victim has had to refer to the parquet first. Moreover, in international criminal cases, the bill aligning French law with the statutes of the International Criminal Court (ICC), passed by the Senate in 2008, reserves the monopoly on prosecutions for the parquet.

8The development of ‘alternatives to prosecution’ furthermore enables the parquet to substitute itself for the jurisdiction of a judge: first, with penal mediation, which is a sort of conditional ruling, and then with the ‘penal compromise’ which enables the prosecutor to propose to a person who has acknowledged having committed an offence, the option of paying a fine or other measures alternative to imprisonment. It is assumed that the person will accept, and that the proposal will be validated by the presiding judge, but the fact remains that here again the parquet has a new role which, in practice, is often decisive.  

9Finally, the major innovation (law of 2004) will be the ‘appearance in court with prior acknowledgement of guilt’. Very close to the Anglo-American procedure of ‘pleading guilty’ and to its extension in the form of negotiation (plea bargaining), it is based on an agreement between the offender and the prosecutor on both the deed and the sentence, including imprisonment. The agreement has to be approved by a judge, but it is the prosecutor who collects the statements in which the offender acknowledges the offence and which determine the nature of the sentence. Now, it is proposed to apply this simplified procedure to all offences, irrespective of the sentence (Guinchard Report), and there have been proposals to adapt it to crimes as well (Léger Committee). Despite this extension of the parquet’s powers, guarantees have barely been increased, which is the third reason why reform is needed to enhance the impartiality and independence of public action – especially since practices have basically regressed. First, criminal policy, far from being limited to general directives, again comprises prosecution in particular cases. For a while several ministers of justice cancelled this type of prosecution and even announced that it would be banned. But the practice was resumed, confirmed by the law of 2004 which stipulates that the minister can enjoin the public prosecutor to institute proceedings or to have them instituted, or to refer to the judge’s jurisdiction ‘such written indictment as the minister deems appropriate’.  

10As for the statutory conditions of careers, the constitutional bill passed by Parliament in 1999 provided for a procedure of appointing public prosecutors on the basis of the opinion of the Conseil Supérieur de la Magistrature (CSM). However, this law was never submitted to Congress, and disciplinary authority is still exercised by the minister of justice. The constitutional law of 2008 does stipulate that the CSM will henceforth be consulted on all proposed appointments, including those of procureurs généraux (chief state prosecutors), but in practice it simply issues an opinion. In most cases the CSM’s negative opinion is moreover ignored. In 2006, out of ten unfavourable opinions, only one was observed (five out of 14 in 2007).

11The contrast is striking with European law, which has evolved in the opposite direction. Despite the diversity of statutes from one country to the next, it tends towards strengthening the guarantees of the parquet’s independence. The European Court of Human Rights recently condemned France in the Medvedyev case (judged on 10 July 2008 but an appeal is pending), pointing out 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”. And the Council of Europe recently adopted a report that put forward the same argument (23 June 2009).

How to reform?

12[…] It would be wrong to make the elimination of the juge d’instruction the key measure, when the most urgent reform is to rebalance the powers: between the executive and the judicial authority (the parquet’s status); between the parquet and the bench (judge’s position); and finally between the court and the accused (rights of the defence and of the victims). Irrespective of the possible variants, the reform must respect four essential conditions.

131 – The parquet’s status: considering the increasing powers of the parquet, it is urgent, come what may, to reinforce the guarantees of independence and impartiality. This will be even more essential as the Léger Committee, responsible for reform proposals, concludes on the need to eliminate the juge d’instruction and to extend the procedure of appearance in court with prior acknowledgement of guilt.

14The first guarantee consists in redefining the notion of criminal policy. The idea is not to jettison the principle by which this policy falls within the government’s province but, on the contrary, to make it more legible by reviving the tradition of the grandes circulaires which are not simply paraphrases of new laws; they are based on quantitative and qualitative evaluations, indicate medium- and long-term objectives, and avoid responding to every minor event with a new law. It would also be necessary to organize an annual debate in parliament, on the basis of a model proposed in 1999, precisely to announce the objectives, evaluate the results and clarify a policy that is sometimes difficult to follow (e.g. the accumulation of texts concerning the repetition of offences, since the law of 2005).

15On the other hand, injunctions in particular cases should be explicitly excluded, which would not prevent the government from making its point of view known in the few rare so-called sensitive affairs. Instead of putting the parquet in the delicate position of receiving a written indictment by order, while in principle retrieving its freedom during the hearing, the solution – running smoothly at the Conseil d’État (Council of State) – could be to request the services of a lawyer who openly defends the government’s point of view before the judge. As for the parquet’s statutory guarantees, they would be reinforced by the transfer to the CSM of the power to decide on prosecutors’ careers and to wield disciplinary control where relevant. Admittedly, this reform would highlight the proximity between judges of the parquet and those of the bench, confirming the constitutional view of a single body, whereas certain voices are raised in favour of their separation into two distinct bodies. But the parquet’s belonging to a single body of judges is a guarantee in its relationship with the police. This is confirmed by the fact that, in Common Law countries, where the separation is much stronger, the police are largely autonomous. It is better to maintain a single body and to reinforce the parquet’s control over the police.

162 – The judge’s position: if we eliminated the juge d’instruction by creating a new juge de l’enquête et des libertés to control the parquet’s investigation, it would be essential for the judge in question to be able to effectively fulfil his or her role. As Geneviève Giudicelli-Delage wrote, it is necessary to find the ‘right distance’, for too close the judge is blinded, but too far he or she becomes blind.

17The difficulties encountered by the juges des libertés show that it would be necessary to increase the material resources by creating enough positions so that each judge has only a limited number of cases to deal with and can make informed decisions. These positions must be at a high enough level for the judges to have authority over the prosecutor. It would also be necessary to reinforce the legal means for the judge to be able to intervene throughout the inquiry to settle disputes between the parquet and the defence, and particularly to control the choice between the two types of inquiry that the Léger Committee proposes to create. Finally, in case of serious dysfunctions, the judge should be able to request the appeal court to take the parquet off the case.

183 – The rights of the defence: essential for safeguarding the presumption of innocence, these rights should be reinforced and extended to all procedures, whether this means calling for acts of investigation, raising objections before the judge, appealing in the same conditions as the parquet or intervening in the closing of the inquiry. An amendment to legal aid would therefore be indispensable to ensure that inequalities between accused did not increase.

194 – Victims’ rights: contrary to the system in place since 2007, the victim should be able to directly apply to the judge to request the opening of an inquiry, especially if the principle of discretionary prosecution is to be maintained. As necessary as it may be, screening for associating in a court action with the public prosecutor should be under the judge’s and not the parquet’s authority.

20Whether it is a matter of examination or judgement, the issue is not only technical but also political. The wish to simplify the procedure and to accelerate the judgement should not be reflected in a shift of powers to the detriment of the judges, whose independence is guaranteed by the constitution, and to the benefit of the parquet,which would remain under the orders of the ministry of justice.

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Table des illustrations

Légende From left to right: Prof Mireille Delmas-Marty, Mssrs Michel Albert, Jean-Claude Casanova, Jean Mesnard (members of the Institut - Académie des Sciences morales et politiques).
Crédits © Jean-René Tancrède
URL http://lettre-cdf.revues.org/docannexe/image/777/img-1.jpg
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URL http://lettre-cdf.revues.org/docannexe/image/777/img-2.jpg
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Pour citer cet article

Référence papier

The Letter of the Collège de France, Collège de France, Paris, juin 2009, p. 21. ISSN 1958-1408

Référence électronique

Mireille Delmas-Marty, « The parquet, a key issue in penal reform », La lettre du Collège de France [En ligne], 4 | 2008-2009, mis en ligne le 15 novembre 2010, consulté le 25 mars 2017. URL : http://lettre-cdf.revues.org/777

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Auteur

Mireille Delmas-Marty

Professor at the Collège de France, holder of the Chair of Comparative Legal Studies and Internationalization of Law

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