Custody new version, the advice of an Attorney




The entry into force of the reform of the police custody on the 1st of June is a significant date in more ways than one. First and foremost because it marks the willingness of public authorities to take
arm-the-body the question of custody is to reduce the number and increase, with the intervention of the lawyer, the safeguards offered to persons who are the subject of this coercive measure.

And then because it is the consequence of the ascendant considerable taken in our legal system by the european standards of protection of fundamental rights, which can be directly applied by the judge in preference to the national law when there is a contradiction between them. Finally, the possibility of an audit and invalidation a posteriori of the law by the constitutional Council, by way of a priority question of constitutionality (QPC), which is very often used in criminal matters, end of
ask new limits to our criminal law.

Thus, the affirmation of general objectives and cardinal principles, illustrating the common values shared by all democratic societies, is taking on the traditional conception of the law, said Portalis, has for only function to allow,
to order or to forbid”. But this pre-eminence is achieved at the price of instability which necessarily follows from the interpretation motions of these fundamental principles, which have names the right to a fair trial, the right not to self-incriminate, or the right to security in the event of arrest.

What lessons can we draw from this situation really new ? In the first place, it is necessary to take note of the avowed determination of the government and the legislator to restrict the use of custody in criminal investigations and to bring the lawyer in police stations. It should in this respect keep himself from screaming before
to have bad : no serious reason to suggest a priori that the limitation of the custody will by itself increase the impunity of the perpetrators of criminal offences. Even more, the presence of the lawyer during the police custody will have the first consequence of putting an end, at the time of the trials, legal strategies usual, based on the dispute and the suspicion as to the conduct, real or assumed custody.

In the second place, the permanent exhibition of the national criminal law to the screen of the QPC and of the european Court of human rights leads to an increasing technicality of the law and the multiplication of litigation and appeals. Little by little, the criminal law and the criminal procedure are in the process of insert, such as the right business, in the vast market of the law with its rules, its logic and sometimes its excess. Except that it is not a matter of private interest but of public order, protection of the interests of the company and of the rights of victims, in the same way that the rights of the defence.

This marketisation phase in the criminal law, therefore, must be, if not a consideration, at least to a limit that allows to save with firmness the functioning of major importance to our criminal justice system. It is perhaps in this light it is necessary to appreciate the project
current strengthening of the presence of citizens in the process of review. In the same way, the question of the role, place and status of the prosecutor now takes on a special importance. He is the one who, by his position of a judge, the guarantor of the equal application of the law, provides in the implementation and control of criminal investigations, the guarantees of fairness, balance and impartiality that many judicial systems in the western struggle to secure to their own citizens. The attorney French has sometimes incurred criticism from the european Court of human rights
the man because of his status and of its hierarchical link with the ministry of justice. This link remains a need regal.

As to its status, the constitutional reform of 2008 has brought the superior council of the judiciary in the appointment process by submitting any proposed appointment of a member of the parquet floor, up to the attorneys general, to an opinion. It remains a step to achieve the consistency and complete compatibility of our criminal justice system with european principles, and hence its stability if necessary. It will be definitively acquired when the prosecutors will be named not only after the notice, but also with the permission of the superior council of the judiciary, within which, it must be remembered, the judges are in the minority, which keeps away the grievance of corporatism.

You see, the reform of the garde à vue is only a step. It is certain that it is not enough only to put an end to the instability, legal felt by our fellow-citizens in criminal matters, in a context of relativism of our legal values, which means in
ultimately, the inability of our society to express and assume clearly her choices of criminal policy. In reality, with the entry into force of the act on the police custody, the criminal justice reform is just beginning.

Jean-Christophe Muller, judge, public prosecutor of the Republic in Pau

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