International Journal on Criminology Volume 3, Number 2, Fall 2015 | Page 115

Which Model for Twenty-First Century French Penal Procedure?
A: Compromising the Model
From the start of the new millennium and the solemn proclamation of the
directive principles of the penal process within the preliminary article of the
Code of Penal Procedure (on the model of those governing the Code of Civil
Procedure), the route of our penal justice system has been traced out: it is that of
the European model. Despite the constraints it imposes, this Strasbourgian compass
does leave some latitude to French legislators. In the margins of the European (and
constitutional) frameworks, the latter has been able to develop certain original rules
whose effect is to reconfigure (or to disfigure, as the detractors of this movement
would say) our procedures.
The duplication of the penal procedure—or if you prefer, the rise of an “encore”
penal procedure 16 —is indisputably a primary source of imbalance. Thus, the fourth
book of the Code of Penal Procedure contains thirty-three sections giving specific
rules of procedure for particular offences (terrorism, criminality and organized crime,
infractions of a sexual nature, procuring, drug trafficking, economic and financial
offences, various types of pollution, and more). When the exception progressively
tends to supplant the rule, the balance between the right to security and the right to
safety becomes an exercise worthy of a contortionist acrobat. As with the “encore”
penal procedure, the public prosecutor tends to become greedy, which is not without
a certain danger for the separation of judicial functions. Although often leaving
investigation for the investigative services to deal with, 17 the public prosecutor
penetrates further every day into what used to be the “sanctuary” of magistrates—
namely, the determination of sentences. With the development of accelerated and
simplified procedures, and especially composite sentencing and appearance with prior
recognition of guilt (CRPC), 18 public prosecutors—even though they are “neither
judges nor magistrates authorized by law to exercise judiciary functions in the sense
of Article 5 § 3 of the European Convention of Human Rights” 19 —accede to a new
role which makes of them “an integral part of judgment.” Once only the director of the
investigation and the guarantor of discretionary prosecution, the public prosecutor
now carries out quasi-jurisdictional tasks. This “professional mutation” inevitably
confuses the distinction between sitting judges and public prosecutors, simultaneously
eroding the sacrosanct separation of the powers of prosecution and judgment. 20
16
Following the expression [“Bis”] used by Christine Lazerges in “La dérive de la procédure pénale,”
Revue de science criminelle 2003: 644.
17
D. Salas, La volonté de punir, essai sur le populisme pénal (Paris: Hachette Littératures, 2005), 159; J.
Danet, “Le droit pénal et la procédure pénale sous le paradigme de l’insécurité.” Arch. Polit. Crim. 2003,
vol. 25: 52.
18
Translator’s note: Comparution sur reconnaissance préalable de culpabilité—court appearance with
prior recognition of guilt, a kind of plea-bargain.
19
European Court of Human Rights, Medvedyev vs France, July 10, 2008, and in the Grand Chamber
March 29, 2010; and more recently and more categorically Moulin vs. France, November 23, 2010; Vassis
vs. France, June 27, 2013; Hassan vs. France, December 4, 2014; Ali Samatar vs. France, December 4,
2014.
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