International Journal on Criminology Volume 3, Number 2, Fall 2015 | Page 129

International Journal on Criminology - Fall 2015, Volume 3, Number 2
Advocating Balance in Penal Law and Penal Procedure
Maéla Gueguen A
In January 2015, the newspaper La Provence revealed the existence of a Facebook
page which painted a stark portrait of prison conditions. Under the name “MDR
o Baumettes,” prisoners of the Marseilles penitentiary had posted photos and
videos that bore unequivocal witness to the state of discipline and security within this
establishment: blocks of hash on the beds, banknotes brandished like in Las Vegas,
the laughing faces of prisoners hanging out on the gangways, some smoking shishas,
others showing off their muscles in the exercise yard—it could not have been more
clear that the prisoners were now running the place. Two days later, a new Facebook
account run by prisoners in Nice was unveiled.
Today, prisons are facing hard times. Yet a prison sentence is only the
punishment of a particular time period, and its meaning has varied over the centuries.
Plato conceived of justice as a “medicine for wickedness” (Gorgias). Hegel maintained
that punishment is a right of the criminal, whose reasonable will can only welcome
the negation of his or her indignity. The new millennium has marked the passage
from one extreme to another: from a world in which everything was penitence, in
which one had to continually punish oneself, to another world, the current one, sorely
afflicted by “penalphobia.”
Daring to punish when it must be done does not mean renouncing the
values and achievements of a free society. Quite the contrary, it contributes toward
revitalizing and reinforcing that society: the more secure society, the more space it can
then leave for freedom. The condition of doing so is for justice to combine rigor with
a measured approach, rediscover its punitive function, and repress the transgression
of the rules of fair conduct in a manner commensurate with the degree and gravity of
the breach committed.
Although Article 6 of the European Convention of Human Rights guarantees
the right to a fair trial, Article 5 of the same convention proclaims the right to freedom
and security. One cannot take precedence over the other. However, the weaknesses
and deficiencies of our judicial system prevent us from attaining this balance. It is
therefore necessary to make law and penal procedure move in the direction of a
greater realism and a greater efficacy, while preserving the strong guarantee of human
rights and fundamental liberties that is characteristic of the French judicial system,
and that represents the foundation of our democracy.
A
Magistrate, Administrator in the Senate
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