International Journal on Criminology Volume 3, Number 2, Fall 2015 | Page 114

International Journal on Criminology
and of the public’s right of access to information and ideas, 13 traditional and new media
regularly end up interfering in the course of penal justice: sometimes by reporting the
content of hearings underway as part of inquests or court cases, sometimes (better still!)
by reproducing in full, and practically in real time, the minutes of a case filed in PDF
format in the headlines of daily newspapers. The explosion of the information society—
marked by the convergence of the printed press, audiovisual media, information
technology, and telecommunications—is thus accompanied by numerous and patent
abuses, and which go largely unpunished. The 1984 Gregory Affair (where the press
was divided between those who believed in the guilt of the mother of the murdered
child and those who insisted on the guilt of the stepbrother of the child’s father), the
Outreau Affair from 2001 onward, and, closer to us, the Clearstream Affair (with the
reproduction of General Rondot’s notes, the content of Dominique de Villepin’s hearings,
and even the minutes of the trial, including those of Judge Renaud Van Ruymbeke) and
the Bettencourt Affair (with the resounding revelations of the online journal Médiapart,
directed by Edwy Plenel) are emblematic of these out-of-control media affairs, which
sometimes culminate in spectacular turnarounds (the media lynching of Judge Fabrice
Burgaud after acquitting most of the defendants who had previously been qualified as
“monsters”). Shot through by contradictions and a prey to cruel disillusionments, the
secrecy of the inquest and of the pre-trial phase seem to belong to those mythical rules
that are largely a matter of demagogic incantation alone, insofar as one cannot afford to
gag the media. 14 Didn’t Nicolas Sarkozy, then president of the Republic, declare, on this
subject, that the secrecy of the investigation and the pre-trial phase “is a fable that no one
believes in” (formal hearing of the re-entry of the Court of Cassation, January 7, 2009)?
II: An Original Model of Penal Justice: The Emergence of a Hybrid Model
Right at the heart of the paradigm of insecurity, attentive to the plight of victims,
subject to onerous efficiency measures in a context of budgetary shortages, 15
prey to penal populism, shaken up by the exigencies of the European model of
due process which can be traced back to Article 6 of the European Court of Human
Rights (the “right to a fair trial,” the standards of which are well known: the right to
an independent, impartial court established by law; the right to be judged within a
reasonable timespan; the right for a case to be heard equitably and publically; respect for
the right to defense, and presumption of innocence), contemporary French penal justice
has managed to develop original and hybrid traits. Although it indisputably scrambles
the classical architecture of the French model (A), this singular development favors the
rise of a new model founded upon compromise (B).
13
An objective of constitutional status identified by the judges of rue Montpensier in their decision
of October 10 and 11, 1984; Article 2 of the law of July 29, 1881 in the draft resulting from the law of
January 4, 2010.
14
For a recent illustration of this tendency, see European Court of Human Rights, February 24, 2015,
Haldimann and others vs. Suisse.
15
J.-P. Jean, “Politique criminelle et nouvelle économie du système pénal,” AJ Pénal 2006: 473.
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