Is French Justice Really Independent?

Is the Justice System Really Independent?

Starting from a recent news item (July 2007), our association once again looked into the famous “independence of the Justice system” in France. Rumor and media pressure, just as much as the influence of political figures or the membership of magistrates in Masonic lodges, unfortunately seem to play a preponderant role in certain judicial decisions.

At CICNS, we know how spiritual minorities have been paying the price of these lapses for more than 25 years… Do the media lead the dance? Who else? In the “Parc d’accueil” affair in Lisieux, we can observe how, in the space of a single night, a suspicion became a certainty, founded on the complaint of a former member filed with ADFI.

Evolution of a news item

AFP dispatch of 28 June:

Investigation into alleged sexual abuse in a “community of life” in Lisieux

Around ten people were in police custody on Thursday in Lisieux (Calvados) as part of an investigation opened on suspicions of abuse of weakness and sexual assault within a “community of life”, according to a judicial source.

(…) The leaders of this community of life, called “Le parc d’accueil”, could be brought before the Lisieux public prosecutor’s office on Thursday, the same source specified.

(…) “Children of a person who is a member of this community also lived within the community, but nothing at this stage allows us to say that there was sexual abuse of these children,” the Lisieux public prosecutor, Bruno Dieudonné, explained to AFP.

Begun in 2004, the investigation had accelerated at the end of 2006 with the rape complaint filed by a former member of the community who had managed to break away from it.

So far, nothing very concrete, and Mr Dieudonné, the public prosecutor, in fact confirms that it is too early to reach a conclusion. Yet from the very next day, and although the content of the articles remained just as vague, the headlines hurled scathing assertions, in defiance of the most elementary journalistic ethics. In that single night, did the Justice system have time to examine the complaint and deliver its verdict? Is there tangible proof of these people’s guilt?

On 29 June at 7:15 p.m. on France 3 Normandie:

Lisieux: Seven placed under formal investigation

A quiet house sheltered a cult movement where rape and humiliation were commonplace

Police officers of the Rouen SRPJ intervened on Wednesday afternoon in a home for adolescents in difficulty in Lisieux. They arrested some fifteen people who are under suspicion of rape and sexual abuse. Several young women had filed complaints a little over a year ago with the Caen public prosecutor’s office. Two women were imprisoned this Friday.

Report: Gwenaelle Louis & Cyril Duponchel

Of the fourteen people arrested on Wednesday, seven were brought before the Lisieux public prosecutor’s office this Friday. Two women were placed under formal investigation for “abuse of weakness or of the state of ignorance of persons in a state of psychological subjection, rape, sexual assault and violence against vulnerable persons”, indicated the public prosecutor Bruno Dieudonné.

(…) Five other people, members or close to this community of life, are expected to be placed under formal investigation shortly for sexual abuse, the prosecutor indicated. The courts must however determine whether they were themselves in a state of subjection or whether they had sufficient free will to answer for their acts before a court. The prosecutor’s office requested that they be placed under judicial supervision. The investigation has also established that certain members of the community sometimes paid substantial sums in the form of donations to the president of the association, who is said to have received about 400,000 euros in two and a half years. Begun in 2004, the investigation had accelerated at the end of 2006 with the complaint for rape filed by a former member of the community who had managed to break away from it. She had recounted that she had to take part in “navigation” sessions, during which she was forced to have sexual relations and sexual contact with members of the community, chosen by the president of the association, at whose home these acts took place.

Suffice it to say that at the end of these articles, we know no more than before reading them. Indeed, nothing is demonstrated and everything rests on rumor. Yet the life of those who have thus been marked out for public condemnation will never be the same again. But who cares?

In a context where the newspapers condemn the accused before the investigation has taken place, can French Justice truly play its role? And what are its relations with the State?

The Justice system and the State

France is a State governed by the rule of law, and this model of government is today “considered the principal characteristic of democratic regimes” (source: http://www.vie-publique.fr).

According to the definition given by the Austrian jurist Hans Kelsen, a State governed by the rule of law is “a State in which legal norms are hierarchised in such a way that its power is thereby limited”. It must respect two fundamental principles: “the principle of legality, which follows from the existence of the hierarchy of norms, and the principle of equality, which stands against any differentiated treatment of legal persons” (the State being, for the Justice system, a legal person). (Source: http://www.vie-publique.fr).

“Such a model implies the existence of a separation of powers and an independent justice system. Indeed, since the Justice system is part of the State, only its independence from the legislative and executive powers can guarantee its impartiality in applying the norms of law.” (source: http://www.vie-publique.fr)

According to Charles Debbasch, Honorary President of the University of Law, Economics and Science of Aix-Marseille: “The magistrates as a whole constitute the judicial authority. (…) But this authority does not constitute a power. It is an administrative authority endowed with a certain autonomy, charged with regulating the public service of justice. It is significant, moreover, that all measures relating to the organisation of this public service, including those taken by the Conseil Supérieur de la Magistrature, fall under the review of the administrative judge, as would those taken within an ordinary public service. In this sense, there is naturally no judicial power. Justice is an administrative public service, and magistrates are civil servants with a particular status. The originality of this public service lies in its specific organisation and in the particular protections its members enjoy in the exercise of their functions.” (Dean Charles Debbasch, www.wikio.fr)

“The purpose of the independence of the judicial authority is not to ensure magistrates a comfortable career, but to guarantee citizens that they will rule only according to their conscience, without being subjected to interventions weighing on their judgments.” (ibid.)

“The independence of the justice system — that is, the absence of any submission of judges, in the exercise of their judicial function, to outside powers — is one of the essential components of the rule of law. Without this independence, no guarantee of rights exists.” (ibid.)

In “The vow of independence” by Jean-Louis Nadal (source: http://www.figaro.fr): “At the solemn hearing of the supreme court, and before the Prime Minister and the Minister of Justice, the highest representative of the prosecution service did not mince his words. ‘The first virtue of justice is independence,’ he declared in his speech. ‘Without independence, no impartiality; and without impartiality, no justice. Yet the prosecution service is not independent.’ For Jean-Louis Nadal, a veritable ‘identity crisis’ is striking the judicial institution ‘and more particularly the prosecution service’”

Charles Debbasch: “Independence from political power is essential. But it would be hypocritical to imagine that independence depends only on legal texts. Political power has means of influence that pass through multiple channels, and none of the Ministers of Justice could swear on their honour that they never attempted to intervene in the course of Justice. Political power is and will always remain a sphere of influence, and it is hard to see how magistrates could entirely escape its reach. Nothing, of course, obliges magistrates to submit to these interventions. The guarantee of their conscience is the best rampart against these excesses.” (article cited)

According to Jean-Louis Nadal: “A ‘profound reform’ must be undertaken in order ‘to clarify the hierarchical link with the executive power’. To that end he recommends in particular an end to individual instructions coming from the Minister of Justice.” (article cited)

Media and the independence of the Justice system

Charles Debbasch: “It must be acknowledged that these interventions (by the State in judicial cases) are today more subtle or less frequent because of the role of the media, which prevent cases embarrassing for the powers that be from being smothered. In this respect, the action of the media is positive. It is a guarantee of democracy and it must be encouraged. However, the role of the media is less clear than it appears. It may happen, first of all, that the judge uses the media to legitimise or consolidate his action. Particularly in criminal matters, leaks appear as a way of making irreversible the course of justice as imagined by the judge. This then amounts to a pre-condemnation without judgment of people who know nothing of what they are accused of, and who learn from the media what the judges or investigators believe they have discovered. It also happens that the media are used by certain judges to wage a battle against political power. For those judges, the point is to go further and to mark, through this influence, their conception of a renewal of political power. A little in the manner of the Italian magistrates who not long ago uprooted the Italian political class with the help of the media.

But, as Michel Winock rightly observes: ‘From the Constitutional Council to the “little judges”, magistrates are standing tall, challenging political power, arrogating to themselves the arbitration of public morality. One would gladly applaud their independence, provided they do not seek to substitute their magistracy for the legitimate power of the nation’s elected representatives, which is not always self-evident.’ It may also happen that the media reflect the passions or demands of opinion and dictate their decisions to judges. When he loses his dependence on power, the judge finds another subordination, a far heavier one: subordination to public opinion and the media. The judge’s dependence on power was, in the end, rather light. It happened, in exceptional cases, that the prosecution service received directives, which moreover were not all politically inspired. But nothing obliged the sitting judges to follow them; they were alone before their conscience. It depended only on them to rule in full independence. No republican power has ever been in a position to dictate their decisions to judges. It is otherwise with the pressure of public opinion. It imposes its views on magistrates, asks them to translate its irritations, its impulses, its passions into judgments. (…) The judge who believes he is becoming independent of political power has in reality found new masters who, if he is not careful, subjugate him in a way far heavier than the Chancellery did yesterday. (…) When Justice becomes dependent on public opinion and bows before it, it loses the compass of the law and swells with the jolts, mood swings, errors and passions of the moment, not to say of the instant.” (Dean Charles Debbasch, Honorary President of the University of Law, Economics and Science of Aix-Marseille, on http://www.wikio.fr)

Below are some extracts from the report, written by Estelle Sédilot, of a colloquium held at the University of Malakoff in December 1999 (full text), entitled “Media and the independence of the Justice system”.

“In the matter of relations between justice and the media, the reference text is article 11 of the code of criminal procedure, which lays down the principle of the secrecy of the judicial investigation. The conflictual relations between these two entities rest essentially on this thorny problem. This article specifies that: ‘except in cases where the law provides otherwise, and without prejudice to the rights of the defence, the procedure during the inquiry and the investigation is secret. Every person taking part in this procedure is bound by professional secrecy.’ The secrecy of the investigation does not apply directly to journalists. Indeed, ‘only those persons are bound to secrecy who take part in the judicial information procedure, that is, in the measures ordered with a view to establishing the truth, to determining whether the elements of the offence are present, and to providing the trial court with the information necessary for its decision’ (TGI Paris, 31 August 1973). Nevertheless, journalists can face charges of complicity, for example by providing the means of any publication or publicity, or be prosecuted for handling information obtained through a breach of the secrecy of the investigation (Cass. crim., 13 May 1991, cited in L. Franceschini, E. Mauboussin, L. Cormier, S. Croix, V. Freland, C. Haquet, G. Moureaux, “Les questions clés de l’audiovisuel”, Dixit, Paris, 1996, pp. 219–220).”

“In practice, one observes that judicial truth is fought by media truth, which prevails over the former. Thus, in a highly publicised case, the judicial truth struggles to emerge and risks being accused of wanting to smother the affair. (…) Media time is not the same as judicial time. Media time is the instantaneous, unlike judicial time, which is much longer (the time of the procedure).” We are currently witnessing an acceleration in the circulation of information. In parallel with this first phenomenon, we are entering a logic of commercialisation of information, which explains why the press seeks above all the scoop, the fact that will sell, and not real information. The judgment and its outcome thus remain secondary. What matters is the unfolding of the procedure (with all its highlights, particularly the arrests). Thus develops an arbitrary power, unmastered, without a counterweight, without any control or real recourse. The majority of articles are written by journalists who have no judicial culture. They play at being vigilantes, nailing the accusation to the pillory. It also happens that the press is instrumentalised to destabilise an adversary (…).” “The press and the media can therefore have a harmful effect on the course of judicial cases. We are even seeing the appearance today of a new breed of journalists, who no longer listen to what the prosecutor or the lawyers tell them, and prefer to stick to their own vision of things.”

”…Many cases which the press claims to have ‘discovered’ were in reality not revealed thanks to it, but thanks to more or less unofficial informers.” “Another element must be taken into account: there are cycles of prosecution. And according to these cycles, the justice system prosecutes certain kinds of cases more or less. At present, and for a number of years now, politico-financial cases have been at the centre of judicial power. And the press is merely their relay.”

The same reasoning applies to cults, where cases regularly appear “in series”, according to the needs of the moment, and the question may be asked whether these cases do not come at just the right time to conceal others by diverting the public’s attention.

“In a pessimistic view of media/justice relations, one will say that the press does not help resolve cases — quite the contrary. Today, the press condemns. We are witnessing the birth of a non-judicial justice, a justice of the pillory.” “A person under formal investigation (not bound by the secrecy of the investigation) is pushed to speak out in order to answer the approximations developed by the press in flagrant violation of the secrecy of the investigation. The person concerned is thus led to pre-empt media excesses to prevent worse, whereas without this pressure he would have remained silent. This produces a situation of total destabilisation.” “All this leads to an absurd situation: from now on, when the secrecy of the investigation is violated, it is often preferable to do nothing, because the mere fact of filing a complaint entails consequences far more serious than doing nothing. Indeed, the justice system does not sanction very heavily the newspapers that have violated the secrecy of the investigation. There is no proportion between the fine (generally small) to be paid for violating secrecy and the money a scoop brings a newspaper.” “It is therefore media harassment, and not judicial harassment, that pushes the person under investigation to set the record straight.” “Press freedom is necessary to democracy (…). The press has a fundamental role of informing. But this information must not be denatured.” “One solution would be to apply to cases concerning adults the rules provided for cases involving minors. This would increase the newspapers’ responsibility by extending the scale of the sanctions they face.” “A complementary solution would be for all citizens to know the basics of how the justice system works. That would curb the over-mediatisation we have been witnessing for some years, because the public would have other means of keeping informed and could remain objective in the face of this treatment of cases.” (Estelle Sédilot, colloquium held at the University of Malakoff in December 1999)

One also observes the influence of the media when they pass over information in silence. Thus, many newspapers circulate “cult stories” but can easily omit to publish the outcome of a trial when it is favourable to a spiritual minority previously incriminated. Reputations are thus soiled irreversibly.

“It can also happen that ideological, political or financial pressure groups with media relays seek to weigh on judgments. It is often asserted that the inquisitorial procedure delivers France from the financial excesses of American-style proceedings. An exaggeratedly optimistic claim, which ignores the role of certain communications agencies that directly or indirectly pay journalists to shape opinion in general and that of judges in particular. For the time being, the ethics of journalists are less demanding than those of magistrates or parliamentarians. We are thereby heading towards a situation in which justice moves away from its political protector (legitimate, all things considered, in a democracy) to place itself under the dependence of occult and illegitimate powers. We then come back to the essential. The quality of justice is not only a matter of status. It rests on the competence of the magistrate. The best independence is that which asserts itself in the force of reasoning, in height of vision, in the absence of bias. The kind that makes a judgment respected because it is respectable. An independent justice system is above all a competent justice system in the service of the law and of citizens.” (Dean Charles Debbasch, Honorary President of the University of Law, Economics and Science of Aix-Marseille, on http://www.wikio.fr)

If Justice were rendered by human beings in the service of citizens, whether by vocation or because they had been trained in that spirit, there would be no bias or prejudice in the courts. “Cults” would not exist before having actually been judged dangerous, the guilty would not exist before their guilt had been proven, the personal ideologies of magistrates would have no place in the assessment of a situation, and media frenzy would have no influence on the reflection of judges. Although these conditions are not impossible to achieve, we are unfortunately forced to observe that this still looks like a utopia today.

It will take more than a passing surge of conscience (as happened with the Outreau affair) for our system of Justice to evolve, for the game of the media to be brought under control and stop destroying lives by spreading the most odious rumors, and for the personal convictions or interests of magistrates to stay out of the indispensable “objectivity” required by this profession, at once important and terrifying in its capacity to change destinies.

Also read on this subject:

The duty to displease by Éric de Montgolfier

The magic word for winning a trial by Maître Joseph

Do the media lie? by Le Kiosque