International Journal on Criminology Volume 3, Number 2, Fall 2015 | Page 109

International Journal on Criminology - Fall 2015, Volume 3, Number 2
Which Model for Twenty-First Century French Penal
Procedure?
Frédéric Debove A
Introduction
Trying to adjust contemporary penal procedure to one unique model is a vast and
perilous enterprise! A pessimist might add that it is impossible and unattainable,
in so far as the current schema of our penal procedure is lacking in legibility,
clarity, and predictability…not to mention intelligibility. An emblematic figure of the
state’s imperium, our penal procedure today is in migration, in search of a balance
between pragmatism and ideology, a compromise between the imperious necessity
of preserving public order and the no less fundamental necessity of guaranteeing the
exercise of individual liberty. Vilified by certain intellectuals, destabilized when it
malfunctions, 1 confronted with formidable new criminal challenges, goaded by the
sensibilities of the moment, subject to crossfire between Europe (the European Council
and the European Union) and the Constitution (especially with the new mechanism
of the Priority Preliminary Rulings on Constitutionality [Question Prioritaire de
Constitutionnalité]), and exposed to the legitimate grievances of victims, the French
penal justice system hesitates between two paradigms which seem entirely opposed
to each other: the inquisitorial and the accusatory—in other words, two emblematic
figures of antagonistic models of justice.
This balancing act can be sensed right from the preliminary article of the
Code of Penal Procedure that resulted from the law of June 15, 2000 (and was
supplemented by the reforms resulting from laws no. 2011–392 of April 14, 2011
and no. 2013–711 of August 5, 2013). In stating the directive principles of the penal
process, the preliminary article actually avoids making any commitment in regard to
the old quarrel over which system—accusatory or inquisitorial—should be affiliated
with our procedures. Far from being an inadvertent omission, this legislatorial silence
corresponds to a voluntary and perhaps healthy renunciation of the opposition
between accusatory and inquisitorial, an opposition that is oversimplifying in
theory and which always requires further nuance when it comes into contact with
judicial practice and contemporary situations. 2 A clarification is necessary here.
A
Director of the Institut de droit et d’économie at the Université Panthéon-Assas, Associate Lecturer at
ENM, ENSP, and EOGN
1
See in particular the work of the parliamentary commission led by A. Vallini: Au nom du people
français. Juger après Outreau, report 3125, tabled in the National Assembly on June 6, 2006.
2
See in particular M. Langer, “The Long Shadow of the Adversarial and Inquisitorial Categories,” in
The Oxford Handbook of Criminal Law, ed. Markus D. Dubber and Tatjana Höernle (Oxford: Oxford
University Press, 2014); A Garapon, Bien Juger. Essai sur le ritual judiciaire (Paris: O. Jacob, 1997); R.
Colson and S. Field, “La fabrique des procédures pénales, Comparaison franco-anglaise des réformes de
la justice répressive,” Revue de science criminelle 2 (2010): 365.
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