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Abstracts
1 -The French
concept of the jury
Antonio Padoa Schioppa
Although
it is inspired by a common law institution, the French jury introduced
by the “constituante” regime in the 1790ies shows specific features
(oral debates, intimate conviction, and separation between the jury and
the judges) which have influenced all Europe. The revolutionaries at
that time (the“Constituants”) wanted to give people the right to judge
in the name of an almost divine sovereignty, even if later on the
initial principles were altered to limit its significance.
2 -From the departmental criminal
court to the “Cour d’assises”
Renée Martinage
Foreshadowing the “Cour d’assises”, the criminal court was in force from
1792 to 1811. Over that period, the public and popular oral judgement
procedure stayed stable in comparison with the investigatory phase.
Despite their selection, the jury’s autonomy is real as proven by the
equity judgement practice that was implicitly accepted by the elected
judges. Under the control of the tribunal of Session (“tribunal de
cassation”) and the legislative summary procedure (“référé législatif”),
the criminal court the transition between the arbitrariness of “ancien
regime” judges and the principle of the legality of crimes and
penalties provided by the 1791 criminal code .
3 - The criminal jury in American
politic tradition
Gwénaëlle Calvès
In the
USA, the jury is a sort of local counterweight to the federal power. The
jury’s deliberation expresses the idea of a common benefit unanimously
reached beyond the differences, which is not the product of an intimate
conviction. The present crisis of this concept has been caused by the
non-discriminative access to the jury’s functions that began in the
sixties. Since belonging to a racial or sexual identity could raise a
risk of pre-judgement, the jury’s approach attempts at reaching a
neutralisation of different but not invincible viewpoints.
4 -Tocqueville and the jury’s
liberal perspective
Lucien Jaume
During
the XIXth century, a lot of liberal thinkers tried to analyse the
significance of the jury system. According to Benjamin Constant, it is a
way to curb judiciary despotism and unfair laws. Tocqueville reverses
this perspective. In his opinion, the jury is an institution that
realises the democratic accomplishment of judicial power. Hegel
considers it as a figure of consciousness of the law where everyone can
recognise himself or herself since all social classes are represented.
All of them consider the jury as a mediation that reconciles the
criminal with the law from which he has moved away.
5 -
Sovereignty, citizenship or public-spiritedness:
which legitimacy for the jury?
Marcel David
The
French Revolution refused to create a democratic myth identifying
sovereignty, legitimacy and the infallibility of the jury. Other sources
of legitimacy are disputed and in particular public-spiritedness or the
exercise of citizenship. The high committee in charge of the reform of
criminal procedure since 1995 refers to this philosophic perspective in
order to justify the appeal procedure of the “Cour d’assises” verdicts.
6 -The
“Cour d’assises” as a politically cumbersome jurisdiction?
The example of the Vichy regime
The Vichy
regime was in keeping with the long tradition of suspicion towards the
“Cour d’assises”. It denounced the uncertainty of its verdicts, its
dangerous publicity and the insufficiency of punitive
public-spiritedness. It used well-tried techniques to adapt the criminal
procedure to the regime requirements (choice of the jury, improvement of
judges’ power, “correctionalisation”, increased use of petition of
clemency…) meanwhile it created “ad hoc” courts to circumvent the
criminal procedure.
7 -
Life sentence judgements: the case
of the “Assises d’Eure-et-Loire” in the XIXth century
Guillaume Mickeler
The 28th
April 1832 Act on extenuating circumstances changed the practice of the
“Cour d’assises” in the resort of “Eure-et-Loire” in the XIXth century.
By that time, the jury was more humane than the penal code by using
acquittals (38% of acquittals between 1811 and 1832) or disqualification
(20% of life sentences are the result of refusing death penalty). Since
1832, a subjective conception of the penal sanction has prevailed, the
jury defining the criteria in order to limit life sentences.
8 -
The expertise or the art of evidence production
(XIXth and first part of the XXth century)
Frédéric Chauvaud
At the
end of the XIXth and the beginning of the XXth century, the expertise
changed the rules of the court of assize trials. It substituted
scientific knowledge to oral evidence and to the use of testimony.
Scientific knowledge is a new resource, which benefits to certain actors
–judges and expert witnesses – to the detriment of the jury and lawyers.
Therefore, the trial becomes a place of a guilty plea demonstration.
Thus, by choosing his expert witnesses, the judge becomes the leader of
the trial.
9 –
The criminal and his enigma: from the “great criminal”
to the “pale criminal”
Jean-Claude Monier
Psychoanalysis has become an analysis chart for criminal behaviour from
the beginning of the XXth century. Some puzzling crimes have been
cleared up thanks to the fact they deal with the unconscious. This is
the case of these “pale criminals” who commit self-punishment in order
to calm their own guilt feeling. From cases encountered in his own
practice, the author explains outwardly incomprehensible crimes by the
unconscious research of a limit that slips away.
10 –
Symbolic sanction or penal retribution?
An answer to Jean-Claude Monier
Michel Dubec
The
author underlines the paradox of Jean-Claude Monier’s text, asking how
the generous concern of understanding criminal acts can comply with
theharshness of such penalties.The danger of a judicial use of
psychoanalysis lies in substitution of the mysterious causality analysis
to the humble exercise of judgement.
11 –
The lawyers and the “Cour d’assises” (XIXth-XXth centuries)
Yves Ozanam
After
difficult beginnings under the “French Restauration and the Monarchy of
July” the bar has known a golden age under the IIIrd Republic. The
Parliament voted the suppression of the president’s summary after the
pleas in1881 and the common deliberation of the jury and the court
concerning penalties in 1932, except the presence of the lawyer since
the investigatory stage. The 1941 reform, which was fiercely fought by
Maurice Garçon, did not mean the end of the assizes lawyer even if it
allowed the court and the jury to sit on the same bench together. The
“Cour d’assises” keeps a central place in the collective memory of the
bar.
12 –
The criminal procedure, memory stake and reform theme
Bernard Fayolle
The state
of positive law shows that our “Cour d’assises” is in keeping with the
continuity of its paradoxical history.
On the one hand, it still keeps its great founding principles (public
and oral debates, judgement after hearing both parties) even though the
democratisation of the jurycame late. The selection of jury members by
drawing lots from electoral lists appeared only at the beginning of the
eighties.
On the other hand, many trials escape from the “Cour d’assises” to the
benefit of courts without a jury for reasons of state. The present
reform can be summarised in two questions disputed by the author: Do we
have to foresee the appeal and give the counsel’s opinion of the court
decision?
13 –
The man of letters to the assizes. Gide, Mauriac, Giono
Thierry Pech
The
lecture of “Memories from the Cour d’assises; (Gide 1914)”, “Notes on
the Dominici case” (Giono 1951)” and “The Favre-Bulle case”; (Mauriac
1932) take various looks at court of assizes trials according to the
author’ personal involvement. Mauriac, the most at a distance from the
trial presents himself as a lawyer in a passionate crime in front of the
jury, the “twelve heads monster”. Giono, who was a judiciary columnist,
describes the shakiness of words and bodies. As a jury, Gide is “in the
boat”; being, aware of the weaknesses of the justice system, he crosses
the judgement’s test.
14 –
The appeal of “Cour d’assises” decisions: the weight of history
J-F Chassaing
The
introduction of an appeal of “Cour d’assises” decisions as provided by
the Act of June 15th, 2000 held a double innovation. First,
it achieves to break with the “oracle jury” concept making of the jury a
municipal magistrate or a citizen having the function to judge.
Moreover, this law puts aside the tradition of the “appeal of control”
which was essentially hierarchic and technical to the benefit of an
”appeal of the second chance” focused on a double concern of guarantee
and prevention of the misconduct of the justice system.
ARTICLES
Victims, those forgotten by the
law?
Jean-Pierre Allinne
The idea
whether the victim is missing from the history of the justice system
does not resist historical analysis. First because the criminal system
has been governed by private vengeance for a long time. Secondly, at the
moment of the triumph of public prosecution, professional practises show
that the concern of the damages’ reparation stays present at both the
judiciary and infra judiciary levels.
Finally, the contemporary growth of civil liability is made in the name
of reparation guaranties, which are due to the victims.
The « Cour d’assises » genealogy recounts the dark way that people took
in order to judge their kinds within the framework of an unstable
democracy. The recent period underlines its paradoxical structure, which
brings together a political institution and a trial making machine.
“The mandrake and the lily” :the
executioner’s infamy in XVIth, XVIIth, XVIIIth century France ”
Pascal Bastien
Before
the Revolution the executioner’s destiny was linked to the ritual of a
personal, absolutist and secularised power . From the beginning of the
XVIth century, infamy was attached to his paradoxical character whereas
his power increased in parallel with that of kings. He represented the
reversed double of the king.
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