International Journal on Criminology Volume 3, Number 2, Fall 2015 | Page 116

International Journal on Criminology
Taking a closer look, the imperialism of the public prosecutor resonates with
that of the sentencing courts. When the role of Judge for the Application of Sentences
was created (in the December 1958 Code of Penal Procedure), it was conceived as
involving nothing more than the adjustment of the penalties pronounced by a court
of judgment. The powers of such a judge were thus strictly circumscribed, so as
to avoid too great an erosion of sentences. With the triumph of individualization,
the determination of a sentence (particularly if it is a sentence that deprives one of
liberty) has today been elevated into a privileged moment of personalization and of
rehabilitation. No longer considering only the past, but also the future, the sentence is
supposed to prevent recidivism by helping the convict find a normal place in society
again. This perspective is considered so compelling that the courts for the enforcement
of sentences are now endowed with prerogatives (Article 707 sq., and especially Article
714 sq., of the Code of Penal Procedure) which are liable to appreciably denature the
punishment that is imposed, and with it the authority of the case being judged and
the separation of the phases of judgment and sentencing.
B. The Model of Compromise
Insofar as it is closely linked to a dynamic of the “privatization” of the trial, the notion
of contractualization may appear on first glance to be foreign to the inquisitorial
procedure, of which the penal process still seems to be the emblematic figure. 21
However, as the sentencing system takes on the responsibility of suppressing any act
that disturbs public order, the conflict between the two goes beyond the protagonists
alone. Thus, the penal process accords a place to individual wills, whether that of
the offender or that of the victim. Although this is nothing new, the contemporary
development of this phenomenon is an expression of the rise of negotiated penal
justice, along with the correlative retreat of a justice imposed from above. 22
As the golden thread of the penal process, presented as a remedy for all the
ills of the justice system, contractualization is certainly alluring. However, at the risk
of slight exaggeration, when common law encounters penal justice, it leaves the latter
intact and unchanged—like water off a duck’s back. Why? Essentially because of
contractual imbalance.
20
See, among others, P. Maistre du Chambon, “Observations hétérodoxes sur quelques évolutions de la
procédure pénale,” in Pradel (ed.) Mélanges, 395; F. Molins, “Le procureur de la République, nouveau
pivot de la justice pénale,” in Le nouveau processus pénal après la loi Perben II (Paris: Dalloz, 2004), 365.
21
X. Pin, “La privatisation du procès,” Revue de science criminelle 2002: 245; Y. Benhamou, “Vers une
inexorable privatisation de la justice,” Dalloz 2003: Chron. 2771.
22
On this point, see Réforme de la justice, réforme de l’Etat, ed. L. Cadiet and L. Richer (Paris: PUF,
2003); Les modes alternatifs de règlement des litiges: les voies nouvelles d’une autre justice, ed. P. Chevalier,
Y. Desdevises and P. Milburn (Paris: La Documentation française, 2003); X. Lagarde, “Transaction
et ordre public,” Dalloz 2000: Chron. 217; C. Saas, “De la composition pénale au plaider-coupable: le
pouvoir de sanction du procureur,” Revue de science criminelle 2004: 827; M. Dobkine, “La transaction
en matière pénale,” Dalloz 1994: Chron. 137; C. Lazerges, “Médiation pénale, justice pénale et politique
criminelle,” Revue de science criminelle 1997: 186.
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