You are on page 1of 30

PERSPECTIVES ON FRENCH CRIMINAL LAW

Sophie M. Clavier

Paris, France and San Francisco, California
July 1997
1
PERSPECTIVES ON FRENCH CRIMINAL LAW


INTRODUCTION

Based on the Napoleon Code of 1810, French criminal law was, until
recently, one of the oldest codified systems still in application. Recent reforms
(1992-1994), followed in these last months of 1997 by added revisions, have
brought the system as a whole under national attention and under the scrutiny of
anyone interested in comparative criminal law. Furthermore, the emphasis in the
political rhetoric, on security and crime control has added a dimension to the
latest legislative elections. The ongoing revisions, undertaken by the
Commission Truche
1
are not only of judicial interest, they carry a political clout.
At this juncture, it is topical to understand the French criminal justice system and
why it appears to be in such a critical phase.
The purpose of the following analysis is multi-fold and broad in scope.
However it does not have the pretension to be exhaustive in its conclusions.
This study aims at raising questions, at identifying issues, and at providing
elements of reflection. It purposely leaves aside an analysis on the effectiveness
of the prison system and concentrates solely on the penal code and on the
procedural part of the criminal justice. The goal is to identify in the text of the
law, the hegemonic symbols that endure in the French legal system and whether
or not they still adequately reflect societal mutations.
Like for the study of any system, let alone one based on strict codification,
the fundamental task is a textual analysis. Consequently, this article first
provides a succinct technical and factual synthesis of contemporary French

1
Pierre Truche is the president of the Cour def Cassation. He has originated a rapport under examination
for potential reforms of the penal system. The rapport entitled: “Justice et Pouvoirs, Justice et Presomption
d’Innocence,” (Justice and Powers, Justice and Presumption of Innocence) is currently being debated (this
article is written in July of 1997). The conservative political groups seem to receive it favorably. The
leftist parties, less so, as they argue that the proposed reform does not go far enough in establishing the
responsibility of the magistrates in virtue of protecting their independence.

2
criminal law, highlighting the most salient characteristics of the law and its recent
revisions. It presents the law strictly as it appears in the texts, without taking
position on its impact. This section could, if needed, be isolated and used as an
objective set of references on the technicalities of French penal law (Part I).
By contrast, the subsequent sections of the article introduce subjective
viewpoints and provide a critique of the system. Two levels of analysis are
suggested and underline the second section of the article (Part II). On a first
level, the perspective will be that of the society the system aims at protecting.
The question asked is whether or not the French system, in its conception, is
able to effectively meet the goal of crime control. The second “camera” or
viewpoint is that of the individual. How is he or she, at least theoretically,
protected by penal law and criminal procedure? For the purpose of clarity, these
two levels are studied successively but within the understanding that they are not
dissociable. Their dynamic interaction is an indicator itself of the conceptualized
balance between crime control and procedural guaranty. A description of the
respective weight of both is at the core of one’s philosophy of the law.
In this framework, the last section offers to explain how the fundamentals
of the system and the values it promotes, fail to take into consideration new
societal challenges. This paradox is at the heart of the French justice system’s
crisis (Part III).

PART I: FUNDAMENTALS OF THE PENAL SYSTEM

Two texts form the backbone of French Criminal law: the Code Pénal
(Penal Code) and the Code de Procédure Pénale (Code of Penal Procedure).
Their respective functions underline both the technicalities and the philosophy of
the criminal justice system. The Penal Code defines offenses and assigns
sanctions. Its primary function is to protect society as a whole: to ensure social
control by categorizing and defining the offenses that disrupt it. The bulk of its
content is rules on substance: what is a crime, what happens to its perpetrator,
3
etc. On the other hand, the Penal Procedure Code dictates rules on the form of
the proceedings. It forms the link between the offense and the punishment. In
this manner, its major function is to ensure due process or the protection of the
individual. Both of these texts have been the object of recent reforms leading to,
if not to a new and revolutionary system (a point that will be discussed later), at
least to a revised one. What follows is a synthesis of the technicalities of the
system.
The Penal Code
The new penal code, entered into force in 1994, is the third criminal
codification in French history. As each code replaces the precedent, the present
French criminal law is based on the synthesis of three codes: 1791, 1810 and
1992-94. Up until the last reforms of 92-94, the most important amendments to
the 1810 code included: the 1975 Act reforming the system of fines and
suspended sentences and instituting a number of alternatives to imprisonment;
the 1978 Act introducing the Période de Sûreté (Safety Period) during which no
release on parole can occur, the 1981 Act abolishing the death penalty and the
1983 Act introducing community service order. In its format, the new penal code
is similar to its predecessors. On substance, the so-called reforms of 1992-94
show mostly elements of permanence and continuity, in spite of the introduction
of a few new concepts especially in terms of the responsibility of judicable
persons.
2

Four books compose the new penal code. Book 1 summarizes the
general dispositions of the Code. It includes rules of general penal law and most
of the rules on sentencing. This general part of the code, the Partie Generale of
the new penal code, reorganizes rules that were previously dispersed in various
places of the 1810 Code or even in the Procedure Code. Most of these rules had
never been modified since 1810. Some of them had remained untouched since
1791.

2
One of the biggest goals of the reforms was to better rewrite the existing codification.
4
The other three books are referred to as the “special part," or Partie
Spéciale. Book 2 reforms the dispositions of the Penal Code relative to the
repression of crimes and misdemeanors against individuals. Book 3 deals with
offenses against property. Finally, Book 4 focuses on crimes and misdemeanors
against the nation, the state and public order.
On the substance, it is permanence and not reform that comes to mind
while studying the Nouveau Code Pénal (NCP): permanence in classification
and terminology, permanence also in reaffirming fundamental principles.
The new code reiterates a tri-fold division of offenses. The French penal
law has always identified three groups of criminal offenses: Crimes, Délits and
Contraventions: crimes, delicts or misdemeanors, and contraventions. A
different trial court has jurisdiction over each category, and different rules of
procedure apply. In general, more serious offenses are subject to more
elaborate procedural safeguard. Penalties for crimes range from prison terms of
at least 5 years to life; misdemeanors are punishable with a prison term of more
than 2 months, not exceeding 5 years, or by a fine of more than 10,000 Francs
(around $2,000). Contraventions are punishable with a fine up to 10,000 Francs
or a jail term inferior to 2 months. The special part of the code reverses the order
of dispositions but keeps the libel of their headings intact.
Permanence of principle is also paramount. The new code, like its
predecessors is based on the fundamental principle at the core of the use of
codification: that every citizen should, with a reasonable degree of certainty,
know the potential penal consequence of any act he/she commits. He/she
should theoretically be able to identify the text that incriminates him/her, in order
to prepare an adequate defense. The pre-set strictly codified qualification is
essential to the application of this principle.
3


,
3
Agnes Cerf Hollender, “le Nouveau Code Pénal et le Principe de la Légalité,” Archives de Politique
Criminelle (Paris: Pedone, 1994) p.10
5
Consequently, the new code upholds the principle of legality which is a
real dogma in the French penal system.
4
The principle of non-retroactivity of
criminal rules, and their strict interpretation is the necessary outcome.
Continuity also characterizes the new code. The special part only
crystallizes innovations that were already the object of anterior laws. For
example, the references to International Law defining crimes against humanity
had been introduced in the French legislation in 1964.
5

Continuity is also present in the apparent desire to balance a certain
hardening of the repression while ensuring the protection of the individual. The
concept of safety period is consecrated, but at the same time the principle of
individualization of the penalty is maintained.
6

If permanence and continuity are paramount, there is nonetheless the
emergence in the new code of a few innovations. There is a fundamental
change in the arbitrary power given to the judge. In 1824 a law had given the
judge a certain amount of leeway in its interpretation and attribution of sanctions
by introducing the principle of circonstances atténuantes (extenuating
circumstances). 1994 is a real revolution in that domain as it abandons the
principles while giving more power to the judge (the consequences of such a
change are studied below).
Finally the most important change, greatly induced by the reality of
international political economy, and one that is considered to be a major reform,
is the introduction of the penal responsibility of judicable—or moral—persons
while not excluding the responsibility of the decision-maker (or the physical
person).

Judicable persons, excluding the State, bear a penal responsibility
according to the distinctions contained in articles 121-4 to 121-7, and in

4
Jean-Francois Chassaing, “Les trois Codes Francais et l’Evolution des Principes Fondateurs de Droit
Pénal Contemporain,” Nouveau Code Pénal (Paris: Sirey, 1995)p 445
5
Mireille Delmas-Marty, “Avnt-Prspos”. Ibid. p 434
6
The idea to adapt the punishment the personality is not new: Raymond Saleilles developed the idea as
early in 1898. It was further developed in 1954 by Marc Ancel in his work on Social Defense.
6
cases mentioned by law or regulation, for infractions committed for their
own benefits.
7


Procedure
The basis of criminal proceedings is also to be found in three successive
codifications: the 1808 Code d’Instruction Criminelle (Code of Criminal
Instruction); its successor, the 1959 Code de Procédure Pénale (Code of Penal
Procedure); and the latest revisions of 1992, 1993, 1995, to which we should
soon add the results of the ongoing revisions.
8
Most of the revisions deal with
pre-trial detention, the rest of the procedure remaining roughly intact.
The French criminal procedure is complex and divided into distinctive
stages during which both administrative and judicial instances have a role to
play. The successive phases of the procedure described below are: the
investigation, the pre-trial detention, the trial itself, the judgment, the sentencing,
and the appeal. It is also important to note at this point the unity of all the French
judicial system. The same magistrates compose the civil and the penal courts.
The name of the court changes according to the nature of the trial. The civil
courts: Tribunal d’Instance, de Grande Instance, Cour d’Appel become Tribunal
Correctionnel and Cour d’Assises according to the nature of the trial. This
principle holds true except in major cities where the amount of trials, both civil
and penal, renders the principle non-applicable.
Investigation
The first stage of the investigation of offenses is generally undertaken by
the police. Two bodies divide the administrative police forces: the Police
Nationale operating under the supervision of the Ministry of the Interior, and the
Gendarmerie, operating under the supervision of the Ministry of Defense.
The Police Nationale comprises the Sûreté Nationale, responsible for all
French territory except for the Paris region and the Préfecture de Police,

7
Nouveau Code Pénal, art.121-2, al..3
8
This article is being written in July of 1997. The legislative Assembly is still working on enacting the
reforms.
7
responsible for Paris and three neighboring departments. In towns of fewer than
10,000 inhabitants the police forces are community forces: the Police Municipale,
headed in towns of more than 5,000 people by a national police chief: the
Commissaire de Police. Two branches compose the Gendarmerie: the
Gendarmerie Départementale assigned in each department and the
Gendarmerie Mobile, acting as a standby force for special task of securing public
order. The Gendarmerie also acts as a military police force. More specific
investigation duties primarily belong to the Police Judiciaire that forms part of the
administrative police forces but whose officers are not necessarily uniformed.
The results of police investigation in criminal cases are passed on to the
prosecutor. The prosecution force is called the Ministère Public or the Parquet.
It operates under supervision of the Ministry of Justice or Garde des Sceaux
9
.
The prosecution, whether represented by a judge: the Juge d’Instruction or by a
chamber: the Chambre d’Accusation which is in charge of the criminal
investigation, called in French, the Instruction.
Consequently, the French Code of Criminal procedure contemplates four
types of investigations and specifies the evidence gathering and arrest powers
available under each: the investigation of “flagrant” offenses; preliminary
investigations; identity checks; and finally the formal judicial investigation
conducted by an examining magistrate, the Juge d’Instruction or the Chambre
d’Accusation. The latter permits the broadest investigating powers. During the
instruction, the proceedings are in theory secret. After the gathering of evidence
is completed, the magistrate has the discretionary power to decide whether or
not a trial will take place.
Détention Préventive (pre-trial detention)
Persons charged with felony may be detained by the examining
magistrate’s warrant of arrest or confinement with no requirement of written
justification, although an adversarial hearing must still be held. The magistrate

9
The present revisions undertaken by Truche aim at increasing the independence of the Parquet from the
Chancellerie (Ministry of Justice) while maintaining the responsibility of the Judges.
8
may only detain persons charged with a misdemeanor if the maximum sentence
for the offense is at least two years of imprisonment. In that case, the magistrate
must find after an adversarial hearing that material supervision is insufficient and
that detention is necessary to prevent interference with the evidences or
witnesses, further crimes, flight of the accused or harm to the accused. Such an
order must be motivated and is usually limited to four months. It may be
extended for additional periods of up to four months each.
10
If there has been
provisional detention at any stage of the proceeding, this detention is wholly
deducted from the duration of the sentence proclaimed by the judgment.
11

The Criminal Trial
Police courts deal with contraventions. Some of these offenses, the so-
called first to fourth class contraventions (mainly traffic violations) are dealt
without any judicial process by the payment of a fine. In all cases there are no
appeal processes for contraventions.
If the offense is a misdemeanor and brought to trial, it will be dealt with by
the Tribunaux Correctionels (Correctional Courts), generally courts of first
instance. Once again, in these cases there is no possibility of appeal.
In case of severe felony or crime, and if the Juge d’Instruction, after
preliminary investigation, has rendered a judgment of indictment (Arrêt de Miise
en Accusation), the trial will be handled by the Cour d’Assises (composed of
‘”assessors” who will “assess” the crimes)
12
. The Cour d’ Assises has full
jurisdiction to judge individuals transferred to it by the judgment of indictment. It
cannot take cognizance of any other accusation.
13

The fundamental principle underlying trial proceedings is the presumption
of innocence. Consequently the burden of the proof belongs to the plaintiff, the
prosecution or Ministère Public. The prosecution has to prove the three
elements that constitute an offense: legal element, material element, and moral

10
Code de Procedure Criminelle, art 143-144
11
Law 84-576 of July 9, 1984
12
At minimum there are two “assesseurs” plus a president. They are the Court properly speaking. Asides
from them sits a jury. Assises are held in Paris and in every department.
9
element. Most modes of evidence are admissible. Within certain limits, evidence
is defined as

All that which has the mind of a truth without considering the means
employed for arriving at it; when the reality of the fact has become certain,
it is said that it has been proved. Every means taken to convince a Court
of a fact is called a proof.
14


The parties must comply with all measures of gathering evidence and the judge
is empowered to draw any conclusion from the refusal to comply.
15

While the instruction is secret and held in private, the judgment procedure
is public, oral and adversarial. The judgment needs to be rendered in the
presence of the accused.
16
The accused has a right to a defense as well as
counsel. On those two points, the Truche reform proposes to reinforce the
principle of presumption of innocence as well as to allow counsel for the defense
to intervene after the first hour of the arrest, as opposed to waiting up to 20 hours
which is now the case. It would bring a drastic change to custodial interrogation
by the police during which, as of today there is no right to counsel. The right to
counsel, as it currently stands, depends upon the nature of the proceedings.
Defendants in the Assises courts must be represented by counsel whether they
want to or not; all defendants in the correctional courts may request appointed
counsel. Counsel must be retained or appointed if a defendant is “subject to
such an infirmity as to compromise his defense.’
17
In the police court, retained
counsel is permitted but there is no provision for appointed counsel.
The conduct of the trial itself is controlled and directed almost entirely by
the presiding judge (the sole judge in police court, the president in Assises and in

13
Code de Procedure Criminelle, Art.231.
14
Traité Elementaire de Droit Civil , quoted in Henry Saint Dahl, Dictionnaire Juridique Dahl, (Paris:
Dalloz, 1995) p.356
15
Ibid.
16
The accused appears free from restraint and is accompanied by guards to prevent his/her escape, (Code
de Procedure Penale, art 318). If an accused refuses to appear, he is summoned in the name of the law by a
Huissier commissioned for this purpose by the president of the Court, with the assistance of the public
force. The Huissier draws up minutes of the summons and the reply of he accused. (Code de Procedure
Pénale art ,319).
17
Code de Procédure Pénale
10
most correctional trials). The jury, under supervision of the judge, works in strict
collaboration with the judge, both on the determination of the illicit act and on the
choice of law. Trial usually begins with the sequestration of the witnesses, after
which the court questions the accused and receives his/her statements if any.
The parties and attorneys have then limited rights to question the accused,
usually through the intermediary of the presiding judge. The accused is not put
under oath and cannot be legally compelled to answer any of the questions, but
he/she cannot prevent the questions from being asked nor can he/she prevent
the court from drawing adverse inference from his/her silence. Next, the
witnesses cited by the parties are individually questioned by the court, in the
order determined by the court, after which the attorneys have limited rights to
pose the own questions. Finally, after the last witness is heard, the parties make
their closing arguments. The defense always closes last.
18

Judgment
Judgments in correctional tribunals or police judgments need to be
motivated. On the other hand, no expressed motivation is required of the judges
in criminal matter. The principle of Intime Conviction (intimate certainty) alone
prevails both in instruction and in Assises. Before the Cour d’Assises retires, the
president reads aloud the following instructions which are also posted in large
letters in the most prominent place of the chamber.

The law does not ask the judges to account for the reasons which have
convinced them; it does not prescribe rules by which they must specifically
weight the completeness and sufficiency of a proof; it prescribes that they
interrogate themselves, in silence or meditation, seeking in the sincerity of
their conscience, what impression the proofs against the accused and the
grounds of his defense have made upon their reason. The law asks them
only this one question, which contains their whole obligation, ”Have you an
inner certainty?” (intime conviction)
19



18
Ibid.
19
Code de Procedure Criminelle, art 353
11
Sentencing and Attribution of Penalties
At the end of the trial, if there is no acquittal and if guilt has been proven,
the offense will be defined according to the code and the preset penalty will be
assigned. As mentioned earlier, police penalties are imprisonment, fines and
confiscation of certain objects seized.
20
Penalties in correctional cases are:
imprisonment for a term in place of correction; suspension for a term of certain
civic, civil, or family rights; fines.
21
Criminal penalties are both afflictive and
infamous. They include: penal servitude for life; criminal detention for life; penal
servitude for a term; criminal detention for a term; banishment; or loss of civil
rights.
22

Petition for Cassation
At the apex of the judicial pyramid stands the Cour de Cassation
sometimes called Cour Suprême. No appeal is possible except in criminal
matters but all judgments are susceptible to a pourvoi en cassation: a petition to
the Cassation
23
. Those petitions are brought on by the Parquet or by the party
aggrieved. They seek to have the court condemn the judgment under attack on
the basis of non-compliance with the rules of law. In this manner both the Arrêt
d’Accusation (indictment) and the judgment rendered in criminal, correctional and
police matters may be annulled. If this is the case, there is a Renvoi en
Cassation. If the Cour de Cassation annuls a judgment rendered in a
correctional or police matter, it transfers the case and the parties to a court of the
same order or the same degree as that which rendered the decision annulled.
24

In a criminal case, the Cour de Cassation orders transfer of the case either
before a Chambre d’Accusation other than that which pronounced the indictment
in the first place, or before a Cour d’Assises other than that which rendered the
judgment.
25


20
Nouveau Code Pénal , art 464.
21
Ibid., art 9
22
Ibid., art 7-8
23
The verb “casser” means to break in French.
24
Code de Procedure Criminelle, art 609
25
Ibid., art 610
12
The Cour de Cassation’s Jurisdiction
The Cour de Cassation may review a judgment on the ground of
inconsistency of judgment. It may annul the whole judgment or just the parts of
the decision where the nullity affects only one or some of its provisions.
26
Like
most other French courts, the Cassation does not usually sit en banc (in bench)
but in panels or chambers.
These complex technicalities developed in the penal code and in the code
of criminal procedure in the text of the law and in the procedure are meant to
serve the double goal of criminal law in a democracy: the protection of society
and the protection of the individual. The task at stake now, in the framework of
the aforementioned references is to assess how French Criminal Law, in its
conception, is able to fulfill these two purposes.

PART II: THE BALANCE BETWEEN THE PROTECTION OF SOCIETY AND THE
PROTECTION OF THE INDIVIDUAL

In its conception, the French penal system expresses an ongoing paradox
between the desire of the legislator to appear liberal and the realities of an
increasingly authoritarian regime. This dichotomy is revealed through both
functions of the penal system: crime control and individual guarantees.
Crime Control
An evaluation of the French criminal policy should include the interaction
between the private and public aspect of social control. One can easily agree
with Maurice Cusson’s statement that “the social control of crime is public in its
preventive and repressive component and private in its social sanction”.
27

However the emphasis here is on the values carried out by the French law as a
distinct, if not isolated, component of criminal policy. The viewpoint concentrates

26
Ibid.., art 612.
27
Maurice Cusson,” L’effet Structurant du Control Social”, quoted in Anne Marie Favard et Reynald
Ottenhof, Archives de Politique Criminelle, p 80.
13
on the public aspect of social control. The following analysis is based on the
premise that the dynamic of French law resides in defining the crime before it can
fight it. Crime and social order are primarily legal abstractions. Within that
dynamic, textual analysis reveals what constitutes a crime and by reverse logic
what are the paramount values the French law wants to protect. It then reveals
the philosophy of punishment underlying French law.
Crime is a Legal Abstraction
The texts present crime as a legal abstraction: there is crime only if it is
included in the code and is assorted with a repressive sanction. This abstraction
seems to be motivated by the willingness to let the legislator and not a potentially
irrational collective conscience, decide what the facts contrary to the social order
are. The fundamental premise is the desire to make of law a guarantee against
the arbitrary. As a consequence, crime can only be defined as an act contrary to
social order (as opposed to religious or moral order). The notion of sin is
expunged from the law.
To only define crime as a legal reality is not without consequences. It may
offer a protection against the arbitrary, but in practice this protection is far from
being perfect. It protects against executive and judicial powers, but it definitely
gives more power to the legislator. In this framework the legislator is able to
decide, according to various economic or political constraints, of the anti-social
nature of an act. To a degree, the legislator is able to define social order. Asides
from a category of hideous crimes against which society as a whole is in
consensus (murder, child abuse etc.) the French legislation has been able to
create what Stephani et al. calls “artificial delicts” that vary according to
economic, social and administrative needs.
28
They are for example typical of
traffic contravention, infractions against the price legislation (act of December
1986), against tax legislation, etc. The creation of such delicts by the legislator is
a symptom of the power of the law as well as an indicator of the non-static
relationship between crime and social order. Social order can define crimes, but

28
Gaston Stephani, Georges Laevasseur, Bernard Bouloc, Droit Pénal Génnéral (Paris: Dalloz, 1996)
14
in the present cases the definition of crimes is also having an impact on what one
perceives the social order to be.
Furthermore the legislator has to take into account collective opinion:
his/her status is dependent on it. Crime is first a human reality, but it is also a
social reality. The phenomenon of crime is an indicator of an antagonism
between the individual and his/her society. As such, crimes create a social
reaction against the individual. Some crimes are directly attacking or threatening
society as a whole, threatening public order, the nation etc. Terrorist acts belong
in that category. However when crime is only directed against one individual:
murder, assault, robbery, etc. one can agree with Stephani et al., it is also a
societal problem. There is a level of emotion, fear or feeling of insecurity, felt by
the public opinion. These emotions, in several cases are greatly fed by the
media and beyond the victim, the entire society feels wronged.
29

This social reaction, just like individual behavior and crime itself, varies
with times and different economic circumstances. The question asked at this
point is what definitions of crimes, and what social responses to crimes are
reflected in the contemporary French penal system. For example, in the 70’s, an
increase in criminality, especially small delinquency, impressed the public opinion
and developed a feeling of insecurity greatly reinforced by the media. It
paralleled a time of high levels of unemployment. In this context the political and
legislative power had to appear fighting both criminality and insecurity. The first
consequence was to reinforce the rigor of the penal system but also to introduce
in the penal law the Periode de Sûreté (or safety period), excluding the possibility
of parole for certain crimes. In this case, an overly sensitized public opinion had
a key role in the making of the law, defeating the initial purpose of a non-
emotional, non-arbitrary codification.
A second consequence of making of crime a legal abstraction is the
opportunity for “loopholes." In the legal conception of the criminal phenomena,
crime only exists if it is included in the penal code. In order to be a crime, an act
has to satisfy legal, moral and material criteria. If one of these conditions is
15
missing, there is, legally speaking, no crime. Consequently even if it is wronged
by an act, society will not have any recourse until the legislator erects and
defines the act as a crime. Society has no recourse if a person commits an
“antisocial act’ within he limits of legality or using one of the lacunae of the code.
An old example provides a clear illustration of such paradox. Prior to an 1873
law, one could order food or drinks in restaurants without paying because it was
not yet characterized as theft. More seriously, and recently, crimes not yet
defined by the legislator in the domain of telecommunications and high
technologies, cannot be prosecuted. As these crimes grow faster than legislation
that has to follow a burdensome process, the problems are obvious.
Philosophy of Punishment
The philosophy of the sanction found in the texts and adopted by many
French legalists like J.M. Varrault and M. Cusson is that sanction is neither
irrational nor is it unjustified:

It is legitimate to want a Penal Code that is a glossary of clear and precise
warning.
30


They put a crucial weight on the value of the sanction and on the certainty
that it is the key to reduce criminality. Their underlying assumption, which is also
that of the present codification, is that sanctions serve a preventive function.
Their premise is that criminals act rationally. According to their writings,

‘The delinquent has the capacity to choose among the means and
opportunities to satisfy his needs.
31


Sanctions also ensure a symbolic and moral function, fixing the wrong done to
society. It repairs a torn society, it brings back confidence.
"
Varault, like
Cusrson, repeats Fauconnet’s viewpoint in that the,

29
Ibid., p 9.
30
Maurice Cusson, Délinquants, Pourquoi? (Paris: Armand Colin 1981, quoted by Jean-Marc Varaut, “a
Punition”, Archives de Politique Criminelle, p 105.
16

“Utility of the sanction is not so much in the action it exercises on criminals
but on the action it exercises on society itself. Everything takes place in a
spiritual domain: images are opposed to other images, emotions to
emotions, forces to forces."
32


As a direct consequence of these premises, repression is on the act not on the
perpetrator. The purpose of the law is to protect the social order by repression
of the act. Crimes and, by reverse logic, social order are defined. The definition
of a crime implies the attribution of a penalty. In this way, a penalty is
established for each offense.
The negative or at least limiting impacts of such assumptions are multi-
fold. Stephani et al. identify the first shortcoming of such premise by arguing that
taking into account only the act and its legal definition:

There is a risk to punish the offender regardless of his/her
personality…either with too much rigor or with excessive leniency.
33


The code of procedure moderates some of those elements, but
aberrations persist. For instance, in principle the act euthanasia for merciful
reasons falls sunder the same qualification as a violent murder. The legal text on
murder does not establish a difference.
34
In this perspective the criminal appears
like an

Animated dummy on whose back the judge sticks the number of a
paragraph of the Penal Code, before the penitentiary administration sticks
a second one which reads his cell number.
35


The issues raised from the reading of the law are whether or not social
order is indeed protected by assigning a pre-set sanction to a determined crime.
It seems on the contrary that what threatens the social order is not only the anti-

31
Ibid., p106
32
Fauconnet, La Responsabilité, (Paris: Alcan, 1928) p.227.
33
Stephani, .Droit Pénal Général . p12
34
Nouveau Code Pénal, art.222-1.
17
social act defined by the law as an offense, but it is more the individual whose
action has revealed the anti-social nature. The Penal Law which in its conception
solely deals with the offense and its matching sanction does not deal with the
individual.

It comes down to an attack on the manifestations of evil not on its
causes.
36


Secondly, it presupposes that the criminal is free to make rational
decisions. It does not take into account the social, economic and political
circumstances affecting his/her decision. Interestingly, the Code does not totally
ignore the “human” aspect of the crime and acknowledges certain cases of
irresponsibility, like mental illness. However, it fails to incorporate new findings
on criminology. It continues in its newest versions to privilege the traditional
premise that a list of sanctions are that many warnings and serve a preventive
function, in a realm, where criminals are mostly rational and can therefore
logically weigh the penal consequence of their decisions. This distorted, and
outdated perception, leads to strong elements of doubt regarding the code’s
efficacy in preventing crime.
The Individual Protection
On the second plate of the justice scales rests the procedure: the link
between the offense and its sanction. The sophistication of the procedure is in
the French regime, like in all systems, an indication of the degree of liberalism of
regime. One can define penal liberalism as the acknowledgment of the individual
opposed to state power, as an autonomous value, implying his respect and his
dignity. Yet, once again, the positive study of the criminal procedure reveals a
dichotomy between the fundamental principles of creating an effective protection
of the individual and the legal evolution implemented to ensure their finality. The
efforts to ensure the principle of legality and that of the presumption of innocence

35
Stehani, Droit Pénal Général, p 8.
36
Delmas, Archives de Politique Criminelle, p 4.
18
keep on meeting hurdles and, the 1994 reforms very obviously did not solve the
issues. It is significant that three years after the latest reforms the Truche
Commission felt that the situation needed once again to be remedied. What we
see is a constant conflict between dogmatic principles on which France in
general places its pride as a liberal democratic country, and the political desire to
placate a population more and more sensitized to crime and security issues. The
legislative evolution in criminal law reflects that uncertainty and tries to reconcile
both. Under the influence of writers like Ancel emerges the conception that trial
in search of the truth should be replaced by trials with more attention given to
human rights and due process.
37
However, most progressive attempts of
reforms in that sense are usually aborted. If they live on, they most often only
offer a change in terminology but fail to bring substantive changes to a criminal
legislation which in many aspects has parted from its initial ideology of liberalism.
This dichotomy appears in all aspects of the procedure: in the function of the
judge and in the application of the principle of presumption of innocence.
Principle of Legality / Function of the Judge
The principle of legality was foremost in the underlying philosophy of 1791
first Penal Code. In the spirit of the 1789 Declaration on the Rights of Man,
Cesar Beccaria summarized the principles that were to be the foundation of the
procedural system. In his words, “every citizen should know what punishment he
should endure.“
38
As a consequence, the function of the judge was conceived as
being strictly distributive: qualification of an act, infliction of the pre-set sanction.
This concept was revolutionary in 1791 and clearly parted from the Ancien
Regime arbitrary procedures. The code of 1791 in this aspect was simple; most
definitions were clear, leaving little power to the interpretation of the judge. 1810
reincorporated this principle and provided that judges could only interpret the

37
It is in this spirit, that in October of 1988, the Minister of Justice created a commission called Penal
Justice and Human Rights.
38
Cesar Becarria, Traité des Délits et des Peines (1794). Becarria’s recommendations are: 1) the necessity
to have written law; 2) the necessity of an accusatory procedure; 3) the abolishment of torture and of the
death penalty: 4) fixed, and not arbitrary sanctions; 5) preventive anti-criminal measures.
19
laws on “incrimination” which means, to find their real meaning. The new penal
code of 1994 reiterates the principle of “strict interpretation."
However if the dogmatic terminology is maintained the substance has
been greatly eroded, giving increasing powers to the judge, in spite of a first
legislative attempt in January of 1993. This law had proposed to create a fully
integrated adversarial trial (with full possibility of cross examination) which would
have lessened the powers of the judge to conduct questioning. It would also
have allowed the defense to be on equal footing with the Accusation (the
Parquet) in accordance with European legislation on Human Rights. However,
after its enactment, critics abounded in saying that one could not lessen this way
the role of the Ministère Public, since in theory it was only guided by the “the
superior interest of public order and the good of justice”
39
. Attackers of the
principle of cross examination insisted on the fact that cross examination greatly
increases the length of a trial and therefore could only exist in countries where
plea bargaining is an admitted practice. A new law enacted in August of the
same year, reverted back to old methods of questioning and aborted the
substance of the January law.
More power is also given to the judge in correctional mater. The most
recent reforms instate a single judge in correctional matters, parting with the
collegiality rule, which had the merit to lessen the discretionary power of any
single individual. This is especially true in a context where the conviction intime
of the judge (intimate certainty) serves as a fundamental criterion.
The function of the judge in assigning penalties is also the prey of a
paradox. The incorporation of the individualization of the penalty
40
is a double
sided concept as it gives much more discretionary powers to the judge. As early
as 1897, Raymond Saleilles evoked the necessity to individualize sanctions and
to adapt them to the seriousness of the offense, its social impact and its real

39
Gabriel Roujou de Boubée, La Procédure Pénale: Bilan des Reformes depuis 1993 (Paris: Dalloz , 1995
p.134.
40
Theodore Papatheodorou, “Pa Personnalisationdes Peines dans le Nouveau Code Pénal Francais”,
Revue de Science Criminelle et de Droit Pénal Comparé, (Paris: Sirey, January-March 1997)
20
nature according to the personality of the offender.
41
Subsequently, this principle
was reinforced by Ancel’s movement on Social Defense, the expansion and
impact of criminology in the 80’s, and of course the preeminence of Human
Rights issues in public life’s rhetoric in the last decade. Individualization of the
penalty was used in practice but was not law. The New Penal Code has
incorporated it as a norm and declares that

Within the limits of the law the judge pronounces the penalties and defines
their modalities according to the circumstances of the offenses and the
personality of the offender.
42


Individualization has become a technique of justice and equity susceptible
to give to the act of judging a subjective dimension. It gives the judge the
possibility to choose among the existing pre-defined penalties, which one is the
most appropriate and efficient. It obviously increases the discretionary power of
the judge and has paralleled the demise of the principle of extenuating
circumstances. As a principle, extenuating circumstances are taken out of the
law
43
. The judge is now sole responsible of the level of rigor he/she wants to
incorporate in the sanction.
Presumption of Innocence
In virtue of constitutional Rights of 1789 and of the Declaration on the
Rights of Man: “every man is presumed innocent until declared guilty." This
cornerstone of the French criminal Justice system is also the prey of a dichotomy
between philosophy and legislative practice and of the balance between an
apparent liberalism and authoritarian practice. This paradox appears during all
the successive phases of the procedure, starting with the role of the police.
The most flagrant example resides in the law of 1981 entitled Sécurité et
Liberté (Safety and Liberty). As a result of increased feeling of insecurity in

p.15.
41
Roujou de Boubée, Bilan des Reformes, p.124.
42
Nouveau Code Pénal, art.132-24
43
Code de Procedure Criminelle
21
France due to a variety of factors, but concentrated on immigration issues, the
legislation enacted a law authorizing, among other things, arbitrary police checks
of identification and working visas. It extended police practice outside the limits
of judicial investigation, creating a huge political and social controversy centered
on human rights issues. As a consequence the Conseil Constitutionnel declared
in1993 that the practice of generalized and discretionary control of identifications
was incompatible with the respect of individual freedom. However a law of
August 1993 circumvented the Conseil Constituitionnel’s decision and enacted
that one could be controlled regardless of behavior, provided that sufficient
guarantees were provided.
44
Interestingly, the level of guarantee was not
determined in the text of the law, which of course confirmed the discretionary
power of the police in terms of arrests. Most of the controversy of that time
focuses on the fact that looking like an immigrant (understanding an immigrant
from North or Sub-Saharan Africa), was a presumption of guilt in itself.
Further ambiguity on the principle of presumption of innocence is apparent
during the phase of instruction (or pre-trial phase). Traditionally, the pre-trial
phase has received the harshest criticism from Civil Right proponents. As a
consequence, reforms and new legislation have attempted to promote a more
liberal perspective insisting on the respect of individual rights. For example a
1993 law has introduced the right for someone brought in custody to call family,
to be seen by a doctor, to talk with a counsel, and to have, if needed, the service
of an interpreter.
However, most of the changes have focused on terminology and very little
has happened on substance. It is clearly illustrated in the pre-trial detention.
Prior to 1993, the Code of Procedure defined pre-trial detention as the
“inculpation” or indictment of the person accused. The French world derives from
the Latin word culpa or guilt, which created a biased confusion in the mind of the
public opinion. The law of January 1993 attempted to remedy the problem by
changing the terminology: inculpation became mise en examen or examining
phase. People are thus reminded that indictment is not a condemnation. But it

44
Code de Procedure Criminelle art 78-2.
22
suffices to read art.80-1 of the code in its revision of August 1993 to see that the
mise en examen continues to affect the presumption of innocence. The Juge
d’Instruction has the power

To indict anyone against whom exist clues leading to assume that he/she
has participated, as the author, or as an accomplice, to the fact for which
he/she is apprehended.
45


The terminology change from ““inculpation”’ to “mise en examen” is an illusion.
Citizens and media still consider a person mise en examen as being inculpée.
46

Even, President Jacques Chirac in the traditional televised speech of July 14
th
,
described the presumption of innocence as a

Right that is daily disregarded in France. I am not talking about
businesses, but also about people, small delinquents, or presumed
delinquents, who every day see their rights trampled, their life put upside
down, and for things which in reality don’ t exist.
47


As a consequence the person indicted is likely to feel that the pre-trial detention
is the beginning of penalty, objectively because of the detention, and subjectively
because of the attack on his/her reputation. The problem lies not in the pre-trial
detention in itself but the fact that it is often perceived and used as the beginning
of the sanction or as a way to condition confession. This last aspect is even
more crucial that French law does not disregard confession as evidence.
The secret of instruction compounds this problem. The instruction is in
principle secret in order to guaranty the independence of the decision to go to
trial as well as to protect the reputation the person indicted should there be a
non-lieu.

Procedure during the preliminary investigation is secret. Any one
participating in the procedure is bound by professional secrecy.
48



45
Boubée, , p.40.

47
http://www.yahoo.fr/actualite/970714/politique/
23
This complete secrecy is inconceivable in a modern society where media and
communication are everywhere. The dilemma, present in all modern
democracies lies between individual rights and freedom of the press. This
impasse was embodied in the 1993 January law which reiterated both principles
presumption of innocence but also freedom of the press, without offering a
solution. The Truche Commission and the rapport presented at the beginning of
this month (July 1997) try to regulate some publicity surrounding trials. However,
in spite of its ambitious title of “Justice and Presumption of Innocence” it does not
go very far in changing the existing application. Most instructions are not
secrets, attacking that much more the true meaning of presumption of innocence.
These few examples illustrate how ambiguous the French penal law is. Its
rhetoric and terminology are liberal, but its interpretation does not hide persisting
elements of authoritarianism. The system vacillates between the two, and
reveals intrinsic conflicts in its very formulation. This partly explains the crucial
crisis the penal regime is facing now. An analysis of the causes of this crisis is
the task at stake in the final section of this overview.

PART III: A SYSTEM IN CRISIS
The crisis of the French system is symptomatic of the ongoing
contradiction of providing old responses to new challenges. The judicial system
is not the only victim of that approach. The political and economic organization
seems to follow the same path. As Alain-Gerard Slama clearly puts it, “Our old
French culture staggers under the attacks of globalization.”
49

It is unfortunate that French society as a whole seems to hang on to that
“old culture." There is in the country a strong resistance to adaptation. Instead
of transforming itself, the French society prefers to change its government or the
content of its laws. The latest elections are an illustration of such behavior. In
this manner, people put all their faith in a national system which in European and

48
Code de Procedure Criminelle
49
Alain-Gerad slama, “le Besoin de Justice.” le Figaro Magazine June 27, 1997, p 5.
24
international terms can no longer be the paternalistic entity the French
Republican tradition had built. As a result, French society keeps on being
disappointed and expresses it in times of elections, but keeps on reproducing a
politico-judicial system that carries its own obsolescence. Thus, among all the
problems facing French society, that of the justice system is by far the most
fundamental. Exogenous and endogenous challenges put the French penal
system under attack. Its inadequacy in facing either of them perpetuates its
crisis.
The international political economy is moving towards a widening
interdependence. Crime is not exempt from globalization: terrorists, drug cartels
and money launderers work transnationally. Paradoxically, the French penal
system reflects an outdated nationalistic conception of justice. The 1810 Code
was written in time of national construction, but the context is definitely different
at end of the 1990’s. Yet, the latest revisions do not seem to take into account
the European construction or the development of extra penal sanctions. It is
regrettable that a codification for the 21
st
century should be conceived on a 19
th

century model.

A code can no longer be built like an isolated monument but should be
conceived as part of a whole, enlarged to other punitive disciplines and
subject to extra national references
50


Indeed, the special part of the penal code does not include any specific
references to Europe. Even more surprisingly, it was being voted at the
Parliament at the very same time that the Maastricht Treaty negotiations were
taking place. It was just as if the Parliament was having problems thinking of
Europe in a legal perspective. Similarly, in the General Part of the code, the
Universal Jurisdiction principle is limited to the protection of national interests,
while several countries including England have extended the application of the
principle to the protection of the Union’s finances. Germany, Italy, and Portugal
have also introduced in their criminal law, specific dispositions regarding financial

50
Ibid., .p.6.
25
frauds affecting the interest of the community. It is the more regrettable that it is
bound to lead to conflicts, as several supranational norms are part of French law
in virtue of the direct applicability of the European Convention.
Globalization has also put the nation-state under attack. The weakening
of the state is leading to the increasing strengthening of inner circles where social
relationships still work. Allegiance to the nation-state is being replaced by
allegiance to ethnic or religious communities or to street gangs in some cases.
The old universalism, on which republican law was based, is heading toward a
progression of particularism.

1810 reflects a rural France, attached to traditional values, like the
legitimate family and a rigid sense of morality. Today on the contrary,
France is an industrialized country with different values, where groups of
individuals have taken considerable importance”
51


The new Code does not take into consideration those “particularities." It
carries on in its redaction and in its procedure a conception of justice which only
knows of the individual what he/she does, not who he/she is. The system is still
under the myth of equality in front of the law, while in practice, in judicial and
police investigation, during pre-trial detention, and in the sentencing phase, it
constantly has to answer to a society which is no longer homogenous.
The collapse of the Soviet Union has also put the traditional Cold War
democracies under scrutiny. Without the Soviet danger, liberal societies are
increasingly questioning the huge power given to the executive branch by the
judicial and legislative authorities. In France, a recent survey shows that 82% of
the population accused the justice system of being too dependent on the political
power.
52

This leads to a second level of contradiction bringing in endogenous
factors. The nation-state is weaker internationally, but on an internal level, there
is an increase of the role of State in public affairs. As a consequence, citizens

51
Revue Pénitentiaire et de Droit Penal. p 118.
52
Figaro, p 7
26
expect an increased protection from the State, and its institutions. If the system
fails to ensure this protection, they blame the group in charge and replace it. As
a consequence the leaders and elected officials are tempted to multiply the rules,
norms and codes devoted to the protection of their own function. This explains
the waves of penal reforms that France is enduring. The core of the problems of
reforms is that they are designed and enacted by the legislator, not by the judicial
system, which in theory is independent. Consequently, the reforms reflect the
public opinion and the need to satisfy it immediately. Legislators have to placate
a public opinion, on which it depends. It leads to an ongoing political malaise as
the same opinion is tired of the political system as it is, and mistrusts the justice
system. The constant reforms are actually in a lot of ways defeating their
purpose. The law has started to appear like a fluctuating element, a politicized
caricature of what it should be. About a recent reform, Pierre Chanbon (counsel
for the Appeal Court in Versailles) was making a statement which perfectly
reflects the ongoing climate:

Justice, which is a serious thing, should not be changed every six months
by the legislation. The new law is unlikely to change any of my positions,
since in that domain laws are lasting no longer than roses.
53


As a result, the reforms themselves are not trusted, and there is increased
dissatisfaction in the criminal system. Simultaneously and in spite, or perhaps
because, of its lack of efficiency there is an increasing demand for justice,
bringing on yet another level of contradiction. The French society is increasingly
becoming a place where law has been rendered commonplace. There is an
intensification of an American like “judiciarization” of the social exchanges: every
social relationship tends to become a legal one and justice has started to
encompass moral. Law has become omnipresent under the pressure of a social
demand increasingly insecure and impatient. The ongoing trial against
corruption, privileges, political scandals, and malpractices cannot be interpreted

53
Boubée, Procedure Penale, p62.
27
as a maturing of the system. For Antoine Garapon these excesses show “the
symptom of a decline in responsibility and an increase of intolerance.”
54

The growing need for justice overloads the system, which creates anger,
frustration, and exacerbates social tensions. It is further heightened by the gap
existing between the instantaneousness of the information given by the media
and the length of the procedure.
It is obvious that presently in France, the increased need for justice does
not represent a sign of progress but a regression of the idea of justice. However,
justice is not sick in itself, the law is. The constant reforms and revisions cannot
hide the contradictions of an outdated system trying to solve modern issues.




54
Antoine Garapon, “Le Droit, Mal Aimé de Notre Histoire, Figaro Magazine, June 1997, p.13.
28
BIBLIOGRAPHY

All the sources used for these articles are in French. The author is responsible
for the translation.

Books

Centre de Recherches de Politique Criminelle. Archives de Politique Criminelle.
Paris: Pedone, 1994.

Dahl, Henry. Dictionnaire Juridique. Paris: Dalloz, 1995.

Delmas-Marty, Mireille. Les Grands Systemes de Politique Criminelle. Paris:
PUF, 1992.

Delmas-Marty, Mireille, ed. Nouveau Code Pénal. Paris: Sirey, 1995.

Delmas-Marty, Mireille, ed. Revue de Science Criminelle et de Droit Pénal
Comparé. Paris: Sirey, 1997.

Favard, Jean. Les Prisons. Paris: Flammarion,1994.

Foucault, Michel. Surveiller et Punir. Paris: Gallimard 1975.

Gassin, Raymond. Criminologie. Paris: Dalloz, 1994.

Méhaignerie, Pierre, ed. Le Nouveau Code Pénal: Enjeux et Perspectives.
Paris: Dalloz, 1994.

Pradel, Jean. Droit Pénal Comparé. Paris: Dalloz, 1995.

Revue Penitentiaire et de Droit Pénal. Paris: Cujas, 1993.

Roujou de Boubée, Gabriel. La Procédure Pénale: Bilan des Réformes depuis
1993. Paris: Dalloz, 1995.

Stephani, Gaston, Levasseur, Georges and Bouloc, Bernard. Droit Pénal
Général. Paris: Dalloz, 1997.

Stephani et al. Procédure Pénale. Parisi: Dalloz, 1996.

Tulkens, Francois and Beernaert, Marie-Aude. Code Pénal. Brussels: Bruylant,
1995.


29
Articles

Garapon, Antoine. “Le Droit: Mal Aimé de Notre Histoire”. (June 1997): 13-15.

Slama, Alain-Gerard. ”Le Besoin de Justice.” Figaro Magazine (June 1997): 5-7.








30