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France: Reform of the Criminal Investigation System

(Jan. 13, 2009) On January 7, 2009, during his address to the Cour de Cassation, France's highest judicial Supreme Court, President Nicolas Sarkozy confirmed his wish that investigating judges no longer lead criminal investigations in France; if his wish is fulfilled, it would end a 200-year-old tradition. Investigating judges are specifically designated to investigate serious criminal cases after the initial police investigation phase. They aim to discover the objective truth, rather than the guilt of a particular suspect. To fulfill their task, they have been given extensive powers. They carry out “in accordance with the law, all acts of investigation that they consider useful for the establishment of the truth.” (Art. 81, Criminal Procedure Code (Dalloz 2008).)

A reform plan may be presented to Parliament sometime in 2009, after a Commission presided over by Philippe Léger, a former Attorney General for the European Court of Justice, presents its findings and proposals in February. A majority of the members of the Commission are said to be in favor of doing away with the investigating judges. If the post is discontinued, the police and the Public Prosecutor's Office would be in charge of criminal investigations under the supervision of an independent judge, who would not participate in the investigation.

The reform proposal provoked strong protests from the various judges' unions and from members of the opposition parties. They see it as “the death of an independent judiciary system, as the public prosecutor's office is in the hands of the executive power.” (Magistrats et politiques s'insurgent contre la suppression du juge d'instruction, LEMONDE.FR, Jan. 6, 2009, available at [archives].)

President Sarkozy has also asked that, as part of the reform, the decision to put an individual on provisional detention be taken by a panel of judges and not by a single judge as is currently the case. (Alain Salles, M. Sarkozy envisage de supprimer le juge d'instruction, LEMONDE.FR, Jan. 6, 2009, available at [archives]; M. Sarkozy confirme qu'il veut supprimer le juge d'instruction, LEMONDE.FR, Jan. 7, 2009, available at [archives].)