Dsince 1er January, the “departmental criminal courts” are generalized throughout the territory and will gradually recover some of the cases which until then fell to the assize courts and their popular jury. These courts, exclusively composed of professional magistrates, were first set up in a handful of departments under the previous Macron five-year term and then were generalized by the programming law for justice of March 23, 2019, ratified in the law for the confidence in the judicial institution of December 2021.
Until now, only the assize courts were competent to judge crimes punishable by more than ten years of imprisonment. The “departmental criminal courts” (CCD) can now judge crimes punishable by fifteen to twenty years of criminal imprisonment. Assize courts will remain competent on appeal and for crimes punishable by more than twenty years of imprisonment, such as murder and assassination. At a time when participatory democracy is popular, it is therefore one of its oldest and most symbolic forms that is partly disappearing.
sharp criticism
These criminal courts, which were to fulfill three objectives – ensuring faster processing of criminal proceedings, limiting the practice of “correctionalization” (reclassifying a crime as a misdemeanor to have it tried in court), allowing savings – arouse strong criticism from legal professionals. If they believe that the objectives have not been achieved, they fear above all a major democratic dispossession and that this programmed erasure of the popular jury is only a prelude to its total disappearance. At the head of the rebellious movement against this generalization, Benjamin Fiorini, lecturer in private law and criminal sciences at the University of Paris-8 and who also launched a petition in favor of the preservation of the popular jury of the assize court, come back for Point on the serious dangers that these criminal courts are likely to cause. Interview.
Point : What was the stated objective with the creation of departmental criminal courts?
Benjamin Fiorini: When these courses were tested, the objective was to reduce the time taken to hear a case, between one year and eighteen months. But also to save money, because the jurors represent a burden, up to 90 euros per juror and per day, and this, not including catering and accommodation. The third goal was to “de-correction” certain files. There are indeed many cases of rape which will be reclassified as sexual assault to have this case judged more quickly not before an assize court, but before a criminal court, even if this does not correspond to the reality of the situation. offense that has been committed.
What risks do these courts pose to the way justice is done, in your opinion?
Above all, there is the democratic sacrifice that they engender. By having recourse to jurisdictions which make the economy of the popular jurors, one endangers democracy, one sacrifices for 57% of the cases an institution inherited from the Revolution of 1789. There is also a risk of entrusting excessive power to the magistrates, because when we say that justice is rendered “in the name of the people”, it is also rendered “for the people”, it is the principle of popular sovereignty that is in danger. This will undeniably cause a decline in citizenship: we are at a time when the Estates General of Justice have regretted a distance from justice and citizens. I admit that I don’t quite understand how removing the popular jurors will solve this problem, it will accentuate it, quite the contrary.
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There is also a risk that justice delivered will deteriorate. Assize justice is a procedure that is marked by a certain humanity, by the oral nature of the debates. The jurors do not know the file, they discover it at the hearing, this forces the different parties to show a lot of pedagogy to explain the file, to explain the legal issues, this allowed humanity to enter the courtrooms : to make people understand what justice is.
It also allowed the jurors, who were 20,000 against 10,000 today, to better understand what the act of judging is, what a crime is in concrete terms, what it is for the victims who suffer it, for the defendants who committed it, what was their journey, what led them to commit such an act… All this human, democratic aspect, we sacrifice it for what the government was hoping for: saving time and savings .
What exactly is it? Have these objectives been met in the jurisdictions that have experimented with departmental criminal courts?
The last report of the evaluation committee of these criminal courts, that of October 2022, only released in November 2022 – because for a month the Keeper of the Seals decided to put it under the carpet until a senator reminds him that it was public and therefore forced to broadcast it –, precisely draws up a severe assessment of the criminal courts. As regards the “de-correction” of files, no significant change was observed.
This means a total dilution of the oral nature of the debates
With regard to saving time: there are two moments when the legislator intended to save time. At the level of the duration of the hearings and the “hearing” of the trials (the moment when the person is sent back to the criminal jurisdiction and the moment when he is actually judged, Editor’s note). As for the hearing time, the judgment itself, for a trial that was supposed to last three days (a rape trial, for example, because these courts will mainly judge rapes, at nearly 90%), we are promised a time saving of at least one day. What the report tells us is that the average time saving observed is 12%: which corresponds to half a day of hearing.
Where there was a juror who had to discover the file, in these courts, the magistrates have access to the file, therefore need to hear fewer witnesses. The report actually indicates that we have therefore gained very little time… This may seem satisfactory, because it means that we preserve a certain orality of the debates, but that will not last. Some promoters of the reform have indicated that if the hearings still last “a long time” it is because the hearings were chaired by former presidents of the Court of Assizes who have retained certain habits, but that in a year or two they would end by finding their cruising speed. This means a total dilution of the orality of the debates to which the lawyers are very attached, marking moreover the turning point of an expeditious justice.
What about the timeframe for hearing cases?
The period of dismissal provided for in the assizes is twelve months, it is necessary to be judged in one year, if not it is necessary a request for exceptional extension of the pre-trial detention. The reform implied that with the criminal courts, things would go faster. The idea was to move to a six-month hearing period. But what the report says is that with the exception of the Assize Court of Pontoise, it has never been possible for the courts to meet this deadline. The evaluation committee even recommended extending the period from six to nine months. We would therefore gain in relation to the foundations a period of three months…
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Add to this two important elements. First, it was found that before the departmental criminal courts, the appeal rate increased. It is 15% before the assize courts and 21% before the CCDs. We will therefore gain a little bit of time on the hearing and the hearing itself, but that we will lose again downstream, because the appeal rate increases… Then, these criminal courts operate with five magistrates – four are assessor magistrates who are usually investigating judges, family court judges, etc., who are mobilized from time to time to sit – compared to two in the court of assizes. Which means that these magistrates have to be found somewhere, and the time they spend sitting is time that they will no longer have to devote to their other original files. This contradicts the speed objective.
Have the objectives been achieved in terms of “costs”?
There are two parameters on this point: if in a global logic, we look at what professional jurors and magistrates cost, the October 2022 report says that the gain is 960 euros per day of hearing. But that is without counting on two decrees which were pronounced on November 10, 2022 and which increase the remuneration of the magistrates who will sit in these criminal courts… The gain will therefore only be 735 euros. To save time, the CCDs should also be able to sit at the same time as the assize courts. But there are currently not enough courtrooms… Building new ones would represent a significant cost. It has therefore not been demonstrated that these CCDs will cost less in the long term.
How to explain that the generalization of these courses was set up in such conditions?
The legislative method was deplorable, we decided to generalize in December 2021 before having the final report of the evaluation committee (given in October 2022). We therefore made a decision before having the elements that would allow us to make the decision. This is also the reason why the mobilization is late. Because there were only two months between the publication of the report and the implementation of these courses in all departments…
The Keeper of the Seals, however, defended the reform, even after the publication of the report of the evaluation committee…
It is clear that the objectives set have not been met. In fact, the minister is lying when he says otherwise. Or he never read the report, but I doubt it. It is surely a very complicated position for him. As a lawyer, he ardently campaigned against this reform. Then he campaigned for as Keeper of the Seals. It is therefore difficult today to change our minds and admit that it is a failure.