International Journal on Criminology Volume 3, Number 2, Fall 2015 | Page 130

International Journal on Criminology
The credibility of the judicial institution is at stake here. The work of justice
has lost its efficacy to such an extent that the new guarantees granted to the defense
have become counterproductive: by placing so much emphasis on rights, one runs the
risk of being overwhelmed by individual deviant behaviors, and of having to question
the fundamental rights that found the social contract. Without the freedom to live
in security (I), living in freedom can offer no security (II). The choices that national
representatives make in relation to the applicable rules are crucial in this regard.
I. The Freedom to Live in Security
The Declaration of the Rights of Man and of the Citizen consecrates the
inalienable and sacred character of the right to security. Originally intended
as a protection against arbitrary detention, the latter has gradually become a
collective right in regard to the individual: the state must be the guarantor of collective
security against individual deviancies. Nowadays we recognize a “right to feel that
one can live in security.” Although the efficacy of investigation (A) and the efficacy of
sentencing (B) are not sufficient in themselves to ensure the security of citizens, they
are nevertheless a guarantee of, and a condition for, that security.
A: Effective Investigation, a Guarantee of the Right to Security
The slow pace of justice is a result of unnecessary complexities. Yet it wouldn’t
take a great deal of audacity to make investigation more effective. Consider the
following points. . .
At the time of writing, a time when we speak of the internationalization
of crime, of organized crime, of widespread targets, of cyber-cells, an investigator
only has jurisdiction “within the territorial limits wherein he or she exerts his or
her usual functions.” In France, investigators have only recently been permitted to
proceed with their investigations in neighboring counties [départements]. Why not
authorize investigators to pursue their work throughout the national territory, or
permit the prosecutor to call in an investigating officer with the appropriate territorial
jurisdiction directly, just as a judge can?
Is the obligation to advise the prosecutor “without delay” when a suspect has
been placed into police custody really reasonable when multiple, and sometimes
turbulent, inquiries are underway, when a search could be carried out right away,
or, more simply, when the place of arrest is a long way from the police station? No
one believes that the prosecutor is sitting patiently next to his or her fax machine,
just waiting to be advised of the next arrest, from sunset to sunrise. . . . To advise the
prosecutor “within a reasonable time given the nature of the investigation” would
guarantee the rights of the person in custody just as well.
Another procedural incongruity: the procedure for public intoxication was
designed to protect the impenitent from himself or herself, by preventing any harm
to his or her person. No hearing can take place during the time necessary to sober
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