SINCE FRENCH president Nicolas Sarkozy came to power in May 2007, his justice minister, Rachida Dati, has shut down some 300 tribunals, stiffened punishment for juvenile delinquents and repeat offenders, and introduced “security detention” for criminals who have served their sentences but are still considered dangerous.
Controversial as they are, none of these measures provoked an outcry comparable to the latest reform of the French justice system, announced by Sarkozy before the supreme court on January 7th. In the president’s words: “It is time for the investigating magistrate to make way for a judge assigned to the investigation who will watch over the progress of the inquiry but will no longer direct it.”
With that sentence, Sarkozy did away with the juge d'instruction, an institution created in 1811. The investigating magistrate's extended powers to search, question and recommend prosecution led novelist Honoré de Balzac to call him "the most powerful man in France".
Sarkozy admires all things British and American. In his January 7th speech, he promised to create a habeas corpus à la française. Once the reform takes effect, suspects will have the right to the presence of a lawyer from the moment they are arrested.
Detention will no longer be decided by a juge des libertés et de la détention(a post created in an earlier reform, nine years ago) but by a team of judges in a public hearing.
The French system will resemble more the Anglo-Saxon common law system. Police and prosecutors – not magistrates – will conduct investigations. “In this day and age of DNA, criminal prosecution can no longer be based on confessions; it must be based on proof,” Sarkozy said.
Defence lawyers will have a more important role, with adversarial debates in French courtrooms. Sarkozy’s critics fear two-tier justice, where those who can afford good lawyers stand the best chance of being cleared.
“Defence will become a luxury,” predicts socialist deputy and former lawyer Arnaud Montebourg.
The new system is meant to be more fair and neutral, since investigating magistrates are often accused of seeking evidence that proves guilt, while discarding elements that might clear a suspect.
But as Mireille Delmas-Marty, a professor at the Collège de France, notes: “There have always been two motives for reforming the investigation process. The official, judicial reason is to improve procedure. The other, unspoken, reason is political: distrust of an independent judge who is not under government orders. For the past 20 years, these two motives have been intertwined.”
The danger, she adds, is that Sarkozy’s reform may simply “transfer the powers of the little, independent judge to the big, dependent prosecution”.
The power of investigating magistrates has been an issue for decades. Two famous cases – the Outreau child abuse scandal, in which a young, inexperienced magistrate imprisoned a dozen innocent people for years, and the recent brutal treatment of a former newspaper director in a defamation case – strengthened Sarkozy’s hand.
Sarkozy condemned what he described as the “post-1968 mentality” of French magistrates and the celebrity of certain investigating magistrates who saw themselves as “white knights”.
In the 1980s and 1990s, investigating magistrates took on France’s political and business establishment. Though their marathon inquiries resulted in few convictions, they exposed corrupt practices at the heart of the republic. Sarkozy’s critics suspect he does not want his administration to be harassed as were those of presidents François Mitterrand and Jacques Chirac.
“If they do away with the investigating magistrate, there simply won’t be any more investigations,” says Éric Halphen, the judge whose investigation of corrupt building contracts led him to summon then president Chirac. “The investigating magistrate is the grain of sand,” he says.
“Democracy needs this lone man or woman who sticks their nose where people don’t want it.”
Investigating magistrates assigned to the “anti-terrorism pole” express fears that Sarkozy’s reform could sabotage efforts to bring radical Islamists, Basque and Corsican separatists and other extremists to justice.
“How can you assign a magistrate who is not independent to an anti-terrorist investigation, knowing that the interests of the state are not necessarily in the interest of justice?” asks Thierry Fragnoli, a magistrate whose cases include the Kurdish PKK and the recent sabotage of railway lines.
Several prominent judges say they would support Sarkozy’s reform if French prosecutors were made independent.
That looks unlikely. Dati recently reaffirmed her role as the head of prosecution.
Sarkozy speaks of “autonomy tempered by the rules of hierarchy” to describe magistrates who will be assigned at the whim of the prosecutor. That hierarchy works as follows: the president chooses the minister of justice, who chose, promotes and fires prosecutors.
Because politicians distrusted investigating magistrates, their power has been eroded and only 5 per cent of cases are now entrusted to them. Prosecutors working directly under the ministry of justice have the power to close cases, which displease the government. Now Sarkozy has done away with investigating magistrates altogether.
“What we are seeing is a real takeover of judiciary institutions by those in political power,” concludes Renaud van Ruymbeke, one of France’s best known investigating magistrates.
Amid the outcry over the scrapping of the investigating magistrate, there has been little comment on another aspect of Sarkozy’s reform: the decriminalisation of white-collar crime. “How can you give the French a taste for risk if the slightest error of management can send you to prison?” the president asks.
However, the measure contradicts Sarkozy’s demands for the “moralisation of capitalism” and punishment of those responsible for the financial crisis.