International Journal on Criminology Volume 3, Number 2, Fall 2015 | Page 131

Advocating Balance in Penal Law and Penal Procedure
up, yet if the offender is subsequently arrested, this sobering-up period is discounted
from their time in custody. This can hardly be justified; but if it were shortened by
several hours, the measure would no longer be effective.
Continuing our indictment of the French law of investigation, the law of
August 15, 2014 “on the individualizing of sentencing and reinforcing the efficacy of
penal sanctions” has made it impossible to compel a person placed in custody for a
contravention or an offence that is not punishable by imprisonment to appear before
a court. Concretely speaking, an individual who commits violence against another
causing him seven days of total incapacity to work is now free to decide not to
respond to a summons from the police or gendarmes, or from the court. Would it not
be desirable to restore the ability to issue said individual with an order of appearance?
The defect is always hidden where we least expect it. In regard to videoconferencing,
for example, the law of March 14, 2011 makes its use dependent on
the consent of the detained person. No time period is given in order to reach this
agreement. However, as we know, discussions relating to detention cannot take place
without the presence of a lawyer, who must be summoned at latest five business days
before adversarial proceedings begin. Through various underhanded maneuvers,
certain lawyers make their objection to video-conferencing known the evening before,
or the very morning of, the trial—that is, at a time when it is no longer possible to
summon them again. Since transport for the detained person cannot be organized at
such short notice, the interested parties are automatically released. . . .
Finally, the efficacy of investigations demands that we take measures against
the congestion of the investigating courts. To this day, numerous procedures result in
referral to an investigating judge when certain—minimal—investigative procedures
have not been carried out, but where the gravity of the matter prohibits the freeing
of the person in custody. Indeed, it is often a matter of awaiting an expert report,
since certain technical operations cannot be carried out within the custodial period.
These various operations are generally carried out promptly, but then all the formal
requirements of trial must be played out fully, with a whole cohort of unavoidable
delays and obligatory procedures. After a few weeks in detention, the person indicted
comes back under court supervision, and is finally judged some months, or even one or
two years, later. Under these conditions, why not create a new regime of investigation,
in which the prosecutor would retain control of the procedure, but could petition the
liberties and detention judge for the provisional detention of the person indicted for
a limited time (for a month, for example, renewable once). 1 The rights of the defense
would be preserved by virtue of the guarantees pertaining to pre-trial detention in
connection with a judicial investigation.
1
Such a system already exists in some European countries—in particular in Germany, where the
investigation is directed by a public prosecutor. Pre-trial detention—ordered by a special judge at the
request of the prosecutor—can last up to six months (its duration can even be extended if a specific
difficulty, an unusually extended investigation, or another important motive justify it). In Italy and
Denmark, it is also the public prosecutor who requests pre-trial detention and controls the time of
detention.
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