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What a Difference a Word Makes!
London & Bermuda Newsletter
Question: What is the difference between a "juge d'instruction" and a "juge de l'instruction"?
Answer 1: The end of the separation of powers in France.
Answer 2: A major step in the reform of criminal procedure in France.
Either way, the result may bring increased defence costs for directors and officers of French companies, and for their insurers.
The investigation and prosecution of criminal conduct is fraught with pitfalls and no jurisdiction has the perfect solution. Common-law countries rely on an adversarial system, whereas civil law countries have long adhered to an inquisitorial system. The former allows the opposing parties to review and explain the evidence to an impartial jury, which decides the truth of the matter. The latter allows little scope for an active defence lawyer, but has the advantage of an impartial and independent investigating magistrate. These issues, long debated, are again the focus of attention as France looks set to abolish the role of juge d'instruction, or investigating magistrate.
The investigating magistrate in France is a member of the judiciary. His/her role is to investigate those cases - generally more serious and/or complex crimes, including sensitive economic and financial matters - for which the prosecuting authority has requested special investigation. He/she ultimately decides whether the case should go to trial.
Certain aspects of the magistrate’s investigation are often carried out, under his/her supervision, by the investigating police (police judiciaire), but only the magistrate can interview suspects and the victim. (The suspect can request that additional enquiries be undertaken by the magistrate, at no cost to the defence.) In addition to his/her investigatory powers - which are extensive - the magistrate has certain judicial powers, such as designating suspects and recommending they be held on remand or subject to (in Anglo-Saxon terms) certain bail conditions.
These dual aspects of the investigating magistrate's role have often been seen as contradictory and reform has been mooted in France for more than 20 years. These issues were given wide attention in the aftermath of what is known as l'affaire d'Outreau. This commenced with a three-year investigation (2001-2003) into an alleged pedophile ring, initially undertaken by a young and inexperienced magistrate in the north of France. (Law students in civil law countries generally can specialise from the outset as lawyers or as magistrates.) Eighteen people were imprisoned on remand for periods of up to three years. Thirteen of the 18 alleged that they were innocent. When the matter came to trial in 2004, seven of the defendants were acquitted; an additional six were released in 2005 on appeal. Even the prosecution recognised that witnesses had lied and that undue importance had been given to unreliable expert evidence. Investigation into the circumstances revealed that the magistrate had been out of his depth and on his own, with no means of seeking guidance from more experienced colleagues. Indeed, none of the three magistrates to whom the file could have been entrusted in 2001 had more than 18 months experience. The system was in disrepute.
In March 2007, several reforms were introduced, including certain measures to safeguard the rights of the defendants. In October 2008, a criminal reform commission was formed and was due to report its preliminary conclusions in 2009. However, on 7 January, President Nicolas Sarkozy announced his intention to do away with the juge d'instruction and replace him with a juge de l'instruction. (The commission has now recommended replacing the juge d’instruction with a juge de l’enquête et des libertés, neatly avoiding linguistic confusion.) The new investigating magistrate would, as before, head the investigation, but his/her judicial powers would be reduced. Further measures strengthening the rights of the defendant have also been proposed.
It appears that the "new" magistrate would be placed under the prosecuting authority, i.e. part of the executive branch. At first glance, this should not be cause for concern, as 95 percent of all relevant crimes in France are already investigated and prosecuted by the executive, and only 5 percent being referred to the investigating magistrate. However, the magistrate's remit has traditionally included politically sensitive matters (e.g. corruption, financial crimes) where his/her independence from the executive has ensured that justice has been seen to be done. (Recall the frustrations of Silvio Berlusconi and the mafia in light of similarly enshrined independence of Italian investigating magistrates.) In addition, civil claims against criminal defendants currently depend on criminal proceedings being brought by the authorities, and there are fears that private individuals' interests may not be protected under a new regime.
Debate on the issues is vigorous and more than 8,500 people have signed a petition in favour of retaining the juge d’instruction. Even top magistrates would support the abolition of the juge d'instruction provided that investigations remain under the control of an independent authority. Defence lawyers will welcome measures that increase their ability to test the prosecution case. English lawyers would advise them to ascertain that finance for those measures is clarified as well, in order to avoid a two-tier justice system.
For the insurers of French directors and officers, the potential consequences are both positive and negative. If all criminal investigations remain under the control of the executive, then matters deemed sensitive to the state (e.g. in companies such as Elf or EDF) may be subject to little or no investigation, hence incurring lower defence costs. However, insofar as reform includes increased rights for the defence (as is likely to be the case), the cost of protecting the defendant’s rights may eventually shift from the state to the defendant – and to his/her insurers.
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