International Journal on Criminology Volume 3, Number 2, Fall 2015 | Page 113

Which Model for Twenty-First Century French Penal Procedure?
in it by the lawyer (the right of the lawyer not only to conduct an interview with his
or her client, but to assist the respondent in his or her hearings and interviews; the
right to pose questions and to present written observations in regard to the custodial
period; the right to consult certain parts of the investigation file). By a sort of capillary
action, this assistance of the lawyer has even recently been extended to so-called “free
hearings” 10 (Code of Penal Procedure, Article 61-1, in the draft resulting from the
aforementioned law of May 27, 2014). As far as the pre-trial phase is concerned, the
imprint of the adversarial so dear to the civil process is palpable in the progressive
recognition (especially following the reforms initiated by laws no. 93-2 of January 4,
1993 and no. 2000-516 of June 15, 2000) of a sort of right of the parties to intervene
in the course of the judicial gathering of information (the right to information, the
right to contestation via requests for dismissal of a case, the right to direct the judicial
investigation by requesting the carrying out of all procedures that seem necessary
to reach the truth, the right to demand the presence of a lawyer during certain pretrial
procedures, and other rights.). In the pre-trial domain, we should emphasize,
moreover, that the imprint of accusatory procedure has appeared as negative—or
indeed, negatively—in the considerable growth of police prerogatives within the
framework of common law investigations (both preliminary and flagrante delicto),
and yet more so within the framework of investigations derogatory to common law
(criminality and organized crime, terrorism, etc.). The more the police—under the
control of the public prosecutor [Parquet]—are granted important prerogatives, the
more the role of the judge—the emblematic figure of the inquisitorial procedure—is
correspondingly marginalized.
B: The Dwindling of Secrecy
Even when it is not elevated into a directive principle of the penal process, as other
rules inscribed in the preliminary article of the Code of Penal Procedure may
be, the secrecy of the investigation and of the pre-trial phase is undoubtedly the
“DNA” of the inquisitorial procedure. Inherited from the Ancien Régime, proclaimed
by the criminal decrees of Blois, Villers-Cotterêt, and Saint-Germain-en-Laye, and
reprised in article 11 of the Code of Penal Procedure (after having been abolished
during the revolutionary period, with the law of September 16–29, 1791), the rule of
secrecy is exceptionally long-lived. Yet as Alexis de Tocqueville observed, the rule may
be rigid but the practice is malleable. 11 For, in the name of freedom of expression 12
10
Translator’s note: audition libre—a new capacity granted to police to request a suspect’s consent to an
interview without charges and outside of police custody, and thus without any legal assistance.
11
Alexis de Tocqueville. The Old Regime and the French Revolution. (New York: Anchor Books, 1955
[1856]).
12
Articles 4 and 11 of the Declaration of the Rights of Man, Article 1 of the law of July 29, 1881, Article
19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms, Article 11 of the EU Charter of
Fundamental Rights.
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