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The law reinforcing the presumption of innocence comes into force

January 2001

The dawn of the new millennium saw a minor revolution for the justice system: as of midnight on January 1^st, the law “reinforcing the protection of the presumption of innocence and the rights of victims” came into force. Adopted by Parliament on June 15^th, this law is set to shake the core of French criminal procedure, instilling greater respect for the rights of individuals involved in criminal cases. The new law, which harmonises French law with the principles of the European Convention of Human Rights, represents one of the most significant reforms of the justice system in the past twenty years. The government had initially introduced provisions concerning only the garde à vue (police custody) and the introduction of a remand judge; however, parliamentarians added provisions allowing a right of appeal from decisions of the cour d’assises and modifying the regime governing enforcement of sentences.

Although these reforms have been heralded as a triumph for civil liberties, it has been met with reluctance from members of the police and investigating magistrates, who expect the new law to increase their workload and delay the completion of investigations. The scant availability of resources seems most likely to derail the reforms, with magistrates and court clerks expressing concern that they lack the numbers to implement the myriad reforms. Facing this resistance, the Minister of Justice, Marylise Lebranchu, resign herself in early December to delay the entry into force of provisions governing prisoners’ rights until mid-June.

· The garde à vue (police custody): suspects will now have access to a defence lawyer from the first hour of the garde à vue, rather than the twentieth hour. An initial, half-hour lawyer-client consultation is permitted, but without access to the dossier [investigation file]. The lawyer can return after the twentieth hour, and again after the thirty-sixth hour, in case of an extended garde à vue. However, the law also allows the initial defence intervention to be delayed in cases of organised crime (until the 36^th hour) as well as cases involving terrorism or drug trafficking (until the 72^nd hour). The police must inform the suspect of his right to silence and advise the prosecution at the beginning of the garde à vue. As of June, the garde à vue of a minor must also be videotaped.

· The judicial investigation: the conduct of the judicial investigation has been significantly altered. Upon first appearance and questioning of the suspect, the investigating magistrate is required to inform him of the length of the investigation; a priori, this cannot exceed one year for intermediate offences (matière correctionnelle) and eighteen months for serious offences (matière criminelle). He must also inform the partie civile (victim) of the progress of the investigation every six months. All parties (victims, téemoin assisté and suspects) can ask the investigating magistrate to undertake such inquiries as they deem necessary to establish the truth.

· The témoin assisté (assisted witness): the new law broadens the status of the “témoin assisté”: where there is little evidence (indices simples) against an individual, they can be questioned by the investigating magistrate in the presence of a lawyer without being formally "mis en examen" (put under investigation).

· The mis en examen: individuals can only be questioned as suspects if there is “serious or concordant evidence against them”. Once the investigation is complete, only "mis en examen" can be sent before the tribunal correctionel or cour d’assises.

· Remand in custody: remand in custody can be ordered only “exceptionally” by a new juge des libertés et de la détention (liberties and detention judge), rather than by the investigating magistrate. For intermediate offences, remand in custody is not available where the applicable sentence is less than three years imprisonment (five years for property offences). The remand period for intermediate offences is also limited to four months, subject to renewal, as long as the accused has no prior convictions and faces a sentence of no more than five years. The total remand period cannot exceed one year (two years in cases such as terrorism or drug trafficking). For serious offences (crimes), the maximum remand period is two years if the offence carries a sentence of less than 20 years, three years in most other cases, and four years for certain offences such as terrorism.

· The cour d’assises: judgements of the cour d’assises can now be appealed by the both the prosecution and defence, except in cases of acquittal. The sentence cannot be increased on appeal unless the prosecution has also lodged an appeal. The new appeal courts (cours d’assises d’appel) will be named by the Cour de cassation, and will comprise a bench of twelve, as compared to a bench of nine jurors at first instance.

· Administration of sentences: the new law establishes regional conditional release boards to administer sentences for prisoners serving sentences of more than ten years. These boards assume the jurisdiction formerly held by the Minister of Justice. For cases involving lesser sentences, decisions on conditional release, temporary release and other non-custodial measures will be made by a sentencing judge, following an adversarial hearing where the prisoner is represented by a lawyer. These sentencing decisions are subject to appeal by the prisoner. However, these latter two provisions will not enter into force until mid-June, owing to a lack of resources in the system.

Le Monde - Tuesday 2 January 2001
Acacio Pereira & Cécile Prieur

Translation Salim Nakhjavani
University of Edinburgh