International Journal on Criminology Volume 3, Number 2, Fall 2015 | Page 134

International Journal on Criminology
presence of the convict and without his even having requested such a consideration. It
is a commonplace that we need to make sentencing meaningful again—but shouldn’t
we also make the adjustment of sentences meaningful as well?
In 1980, Minister of Justice Alain Peyrefitte gave us the now celebrated phrase:
“security is the first freedom.” Pierre Mauroy responded, a year later, that “the first
security is freedom.” Apparently incompatible and yet indissociable, these two objectives
transcend their apparent opposition in the best possible way: one will always be the
condition of the other.
II. The Security to Live in Freedom
Security is one of the conditions for the exercise of individual and collective freedoms
alike. For this exercise of liberty, it is necessary for norms to be secure; without
legal certainty, without the predictability of the norm, there can be no freedom
(A). However, this is not the only condition: without a working judicial system, acting
in the form of a fair trial and within a reasonable time frame, citizens’ rights cannot be
recognized. The efficacy of the judge is thus revealed to be a condition of freedom (B).
A: The Efficacy of the Norm, a Guarantee of Freedom
How can we guarantee citizens an effective enjoyment of the fundamental right
to freedom? Above all by recognizing their rights—but not just any rights:
those of which they make real use. Among the myriad new rights—which issue
primarily, at least in principle, from European Law—many are relatively ineffective.
Others, however, deserve to be recognized.
Allowing an appeal against an indictment order, for example. At the moment,
an indictment order is not a legal measure open to appeal. The judge must decide
whether there are “serious and corroborated indications” that the commission of an
infraction has likely taken place. This is a purely factual evaluation; he or she does not
have to justify the decision. The only recourse for the concerned party is a request for
the annulment of the order, which will be examined many months afterwards by the
investigating chamber. This annulment does not, however, call for a reassessment of
the serious and corroborated indications; it is justified by the failure to observe legal
formalities essential to the validity of the order. This situation is unsatisfactory, because
an indictment carries heavy consequences, particularly in the political arena, but also in
business, and even for a normal citizen who may see himself or herself declared guilty in
the eyes of the public. It would be a good idea to require a written, substantiated order,
indicating what justifies the indictment in fact and in law, and to permit an appeal to be
made against it (within a limited time frame). This measure would also have the merit
of protecting judges against criticisms of arbitrariness. It would reconcile the appeal
and the principle of collegiality. Finally, it would favor recourse to the status of assisted
witness, which remains to this day something of a failure because it is not employed
often enough.
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