S i want us all remains as it is that everything must change ". Certainly, the Chancery was replayed many The Leopard by Giuseppe Tomasi before writing the Bill custody which was discussed recently in Parliament.
If reform showed good intentions, she promised to make no no. Ms Alliot-Marie that it was the will as keeper had however claimed that many would finally advanced to the French criminal procedure into line with European law. Las. Actually advanced, it's effects and announcements of compliance, it is less than ever that question.
ads first. According keeper, the law would first bring down significantly the number of police custody decided each year because the measure would not be applied as the sole punishment of offenses hit at least one year's imprisonment.
But everyone knows there is an excessively reduced crime punishable by a sentence below. Thus, driving with a blood alcohol in the blood exceeds the legal threshold that incur up to two years in prison; the invasion of privacy of privacy or the fact of making an audio or video unlawful to take only these examples, are each punishable by one year in prison ... The police can be assured it will be much more difficult to find an offense does not result in placement in custody than the reverse.
Among the advances, the Chancery had also put forward a ban full body searches and notification to the custody of his right to remain silent.
Strip searches are already regulated by Article 63-5 of the Code of Criminal Procedure which provides that "when it is necessary for the purposes of the investigation to make Investigations internal body of a person in custody, they can be performed by a physician required for that purpose ". Ignorance of this text and the widespread use of this degrading practice had already involved a ministerial circular of 11 May 2003 and most recently, a memorandum from the Director General of National Police, dated June 9, 2008 . Without any effect. The new text proposes a framework which already is. There is concern whatsoever with the same success.
As for the notification to police custody his right to remain silent, there was so much about it swings in a decade that it is having seasick Between 2000 and 2002, Article 63-1 of the Code of Criminal Procedure provided that in custody are advised of their right to remain silent. This provision had been reduced once in March 2002 before being repealed a year later. It should now reappear. Good. But these delays will not change, the European Court of Human Rights (ECHR), and fortunately has long held that the right to silence was consubstantial with the presumption of innocence and should be applied at all stages of the procedure .
For all these advances that are not no one could at least hope it would be done any place the lawyer under police custody. The decisions of the ECHR and the Constitutional Council and Supreme Court are clear about this: the questioning of a person from the police investigation without the assistance of a lawyer violates the right to trial fair and the same rights of defense.
Indeed, in the proposed reform, every effort has been made to provide assistance of counsel ... and without it!
If the reform was adopted, regardless of the reason for placement in custody, the prosecutor or the judge of freedoms, may postpone the presence of counsel for a twelve hour or twenty four hours for the rule of law common and for a period of forty-eight or seventy-two hours to the custody derogatory (terrorism, drugs etc..) Thus, despite the strong condemnation of the Court of Cassation, it was not intended to waive shifted to the exercise of rights of defense for the most serious offenses that lead to this paradoxical result: the regime is more severe, less held in custody is in ability to defend itself.
Worse, to justify the presence of counsel delayed in custody, it has been suggested in the bill "the need to collect or preserve evidence gathering" or prevent "harm to people" . Would it imply that the lawyer who is an officer of justice, steals documents relevant to ascertaining the truth or worse it may sponsor or be an accomplice in a homicide?
The continuation of these provisions as blurred as scandalous relic of a time when the lawyer was also suspicious that his client could in any case submitted to the procedure to be reformed retoquée, barely passed. What about even the fact, that in matters of terrorism, the lawyer would necessarily chosen by the barrister on a list established by the Bar Council, which is an attack characterized the defense of free choice is nevertheless a another principle enshrined in European law?
But this is not the worst. power after grossly abused the practice of custody thought just a sprinkling of old rights presented as a new and supposedly increased presence of counsel to conform to French criminal procedure under European law. It is not.
The surprise did not come on the side of the lawyer to whom the door was opened but the prosecutor, theoretically loaded as magistrate guarantor of individual freedoms, to control the guard view.
The condemnation of France to the ECHR 23 November 2010 (Case France Moulin v. France) rings in this as a rude awakening: the prosecutor, judicial supervision of police custody is not a magistrate within the meaning of the European Court because it is not independent screws vis the executive. The position of the Strasbourg court if it is not new (Case Medevedyev v. France) is no less bold. Beyond the effective control of police custody is being questioned is the question of linking the wooden seat and therefore the organization of the French judicial system that is asked. The new Minister of Justice has shown that point sans équivoques : peu importe les décisions des plus hautes juridictions françaises et européennes, le procureur, juge soumis, gardera la direction des gardes à vue !
Il reste en définitive, au vu projet présenté au Parlement quelques améliorations qui n'atténuent pas le sentiment d'une occasion manquée. Quel gâchis en effet d'avoir préféré à tout prix une réforme bâclée à une justice souveraine et respectueuse des droits de chacun. Des centaines de milliers de gardes à vue réalisées chaque année dans des conditions indignes méritaient mieux and in any case that we put an end to an exceptional justice who is also a French exception.
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