Sarkozy goes to war with Napoleon's legal legacy

President accused of putting government above the law with plan to repeal 200-year-old system

President Nicolas Sarkozy will raise a political and legal storm today by pronouncing a death sentence on the "examining magistrates" who have been the linchpin of the French judicial system for two centuries.

In a speech to France's highest court, M. Sarkozy will call for the abolition of the juges d'instruction created by the Emperor Napoleon in 1808, magistrates with independent, sweeping powers to investigate serious crimes ranging from murder to political corruption.

Instead, all criminal investigations would be handed over to the parquet or public prosecution service, which would remain under the direct control of the government. Although the French system of "investigating magistrates" is frequently criticised as cumbersome and draconian, President Sarkozy's reform plans drew a barrage of protest yesterday from opposition politicians, lawyers and judges.

They said that his proposals, although not yet spelt out in detail, would expose the criminal justice system to increased political influence and would, in effect, put an end to independent legal investigation of members of the government in power.

As with many of M. Sarkozy's reforms, the proposed changes can be read in two ways: an attempt to streamline France; or an attempt to increase the power of government. At one level, the abolition of investigating magistrates is a move to reform a system which has generated a series of abuses and failures and has been all but scrapped in other continental countries. On another level, the proposals leaked to the newspaper Le Monde yesterday suggested a clear shift of judicial power into political hands.

The reform would also imply an end to France's cherished system of "inquisitorial" justice and a shift towards a more "adversarial" British or American pattern where guilt or innocence is established by prosecution and defence lawyers slugging it out in court.

One of France's best-known investigating magistrates, Gilbert Thiel, the head of the judicial anti-terrorist unit, broke the customary silence of juges d'instruction yesterday to reject the proposals as anti-democratic. "This reform will mean that all sensitive cases, not just political investigations, but also large fraud and public health cases, will be subject to political interference," he said.

Emmanuelle Perreux, head of the centre-left magistrates' union, SM, said that M. Sarkozy's reform was the predictable reply of the governing classes to successful investigations of corrupt politicians in the past 20 years.

Most criminal cases in France are already dealt with directly by the parquet. Just under 5 per cent of the most serious or complex cases – about 32,000 investigations a year – are handed formally by the parquet to one, or more, of the 613 juges d'instruction.

Once entrusted with a case, an investigating magistrate is independent and impartial. He or she is supposed to assemble all the evidence suggesting both innocence and guilt. When the investigation is complete, he or she recommends whether the suspect should be prosecuted or cleared.

The magistrates use police detectives to help in their investigations. They can keep people in custody (with some safeguards). They can ask for suspects to be bugged. They can make unannounced swoops on homes or offices to search for incriminating documents. The 19th-century French novelist, Honore de Balzac, once said that the juge d'instruction was the "most powerful man in France".

The longest, most complex and most talked-about inquiry by a French investigating judge in recent years was the two year inquiry in 1997-99 into the death of Diana, Princess of Wales. Hervé Stephan concluded that Diana's death after the car crash in Paris was an accident caused partly by a drunken chauffeur, a conclusion confirmed last year by a British inquest.

But there has been a series of bungled cases by investigating magistrates and instances of alleged abuse of magisterial powers. In Outreau, near Boulogne, in 2000, a dozen people were wrongly imprisoned after a deeply flawed investigation by a young and inexperienced magistrate.

The case led to a parliamentary commission of inquiry which recommended that investigating magistrates should be abolished but – crucially – that the prosecution service should be made independent.

According to the proposals leaked to Le Monde, President Sarkozy will announce today that he wants to abolish the juges d'instruction but maintain the parquet, or prosecution service, under the control of the Justice Ministry.

Defence lawyers would be given access to the prosecution dossier from the beginning, something not allowed under the present system.

Nonetheless, Professor Didier Rebut, one of France's foremost experts on penal law, said yesterday that the proposals would skew the system against the rights of the defendant. French law is based on the principle that complex investigations must be "contradictory", or look into both sides of the case.

President Sarkozy's proposed reform would destroy this balance, Professor Rebut said. "Would the police be ready to allow defence lawyers to take part in police interrogations?"

Sarkozy vs Bonaparte: A short history

* Both men are known for their short stature. Nicolas Sarkozy is 5ft 5in and Napoleon Bonaparte was one inch taller (actually above average height for the early 19th century).

* Both men had foreign ancestry: M. Sarkozy is half-Hungarian; Napoleon came from an Italian-Corsican family.

* Both men had beautiful wives who were taller than they were.

* They both set out to reform the judicial system. The Emperor's "Code Napoleon" remains the basis of much of French law to this day. M. Sarkozy has made some piecemeal changes – imposing rigid, minimum sentences for violent crimes and life terms on some sex offenders.

* Both men set out to change the way that France thinks about itself.

* Both liked to be regarded as peacemakers. Napoleon's idea of making peace was to make war. M. Sarkozy intervened successfully in the Russia-Georgia conflict in the summer, less successfully in the Israeli assault on Gaza this week.

PROMOTED VIDEO
News
ebookA unique anthology of reporting and analysis of a crucial period of history
News
Ian Thorpe had Rio 2016 in his sights
people
Arts and Entertainment
Original Netflix series such as Orange Is The New Black are to benefit from a 'substantial' increase in investment
TVHoax announcement had caused outrage
Life and Style
Swimsuit, £245, by Agent Provocateur
fashion

Diving in at the deep end is no excuse for shirking the style stakes

News
One Direction star Harry Styles who says he has no plans to follow his pal Cara Delevingne down the catwalk.
peopleManagement confirms rumours singer is going it alone are false
Voices
Mrs Brown's Boy: D'Movie has been a huge commercial success
voicesWhen it comes to national stereotyping, the Irish know it can pay to play up to outsiders' expectations, says DJ Taylor
Arts and Entertainment
Curtain calls: Madani Younis
theatreMadani Younis wants the neighbourhood to follow his work as closely as his audiences do
Arts and Entertainment
'Deep Breath' is Peter Capaldi's first full-length adventure as the twelfth Doctor
TVFirst episode of new series has ended up on the internet
Life and Style
Douglas McMaster says the food industry is ‘traumatised’
food + drinkSilo in Brighton will have just six staple dishes on the menu every day, including one meat option, one fish, one vegan, and one 'wild card'
Sport
Mario Balotelli, Divock Origi, Loic Remy, Wilfried Bony and Karim Benzema
transfersBony, Benzema and the other transfer targets
Independent
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
santorini
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Web Developer (C#, ASP.NET, AJAX, JavaScript, MVC, HTML)

£40000 - £45000 per annum + Benefits + Bonus: Harrington Starr: Web Developer ...

C# R&D .NET Developer-Algorithms, WCF, WPF, Agile, ASP.NET,MVC

£50000 - £67000 per annum + Benefits + Bonus: Harrington Starr: C# R&D .NE...

C# Developer (Web, HTML5, CSS3, ASP.NET, JS, Visual Studios)

£40000 - £50000 per annum + Benefits + Bonus: Harrington Starr: C# Developer (...

C# Developer (ASP.NET, F#, SQL, MVC, Bootstrap, JavaScript)

£55000 - £65000 per annum + Benefits + Bonus: Harrington Starr: C# Developer (...

Day In a Page

Iraq crisis: How Saudi Arabia helped Isis take over the north of the country

How Saudi Arabia helped Isis take over northern Iraq

A speech by an ex-MI6 boss hints at a plan going back over a decade. In some areas, being Shia is akin to being a Jew in Nazi Germany, says Patrick Cockburn
The evolution of Andy Serkis: First Gollum, then King Kong - now the actor is swinging through the trees in Dawn of the Planet of the Apes

The evolution of Andy Serkis

First Gollum, then King Kong - now the actor is swinging through the trees in Dawn of the Planet of the Apes
You thought 'Benefits Street' was controversial: Follow-up documentary 'Immigrant Street' has got locals worried

You thought 'Benefits Street' was controversial...

Follow-up documentary 'Immigrant Street' has got locals worried
Refugee children from Central America let down by Washington's high ideals

Refugee children let down by Washington's high ideals

Democrats and Republicans refuse to set aside their differences to cope with the influx of desperate Central Americas, says Rupert Cornwell
Children's books are too white, says Laureate

Children's books are too white, says Laureate

Malorie Blackman appeals for a better ethnic mix of authors and characters and the illustrator Quentin Blake comes to the rescue
Blackest is the new black: Scientists have developed a material so dark that you can't see it...

Blackest is the new black

Scientists have developed a material so dark that you can't see it...
Matthew Barzun: America's diplomatic dude

Matthew Barzun: America's diplomatic dude

The US Ambassador to London holds 'jeans and beer' gigs at his official residence – it's all part of the job, he tells Chris Green
Meet the Quantified Selfers: From heart rates to happiness, there is little this fast-growing, self-tracking community won't monitor

Meet the 'Quantified Selfers'

From heart rates to happiness, there is little this fast-growing, self-tracking community won't monitor
Madani Younis: Five-star reviews are just the opening act for British theatre's first non-white artistic director

Five-star reviews are just the opening act for British theatre's first non-white artistic director

Madani Younis wants the neighbourhood to follow his work as closely as his audiences do
Mrs Brown and her boys: are they having a laugh?

Mrs Brown and her boys: are they having a laugh?

When it comes to national stereotyping, the Irish – among others – know it can pay to play up to outsiders' expectations, says DJ Taylor
Gavin Maxwell's bitter legacy: Was the otter man the wildlife champion he appeared to be?

Otter man Gavin Maxwell's bitter legacy

The aristocrat's eccentric devotion to his pets inspired a generation. But our greatest living nature writer believes his legacy has been quite toxic
Joanna Rowsell: The World Champion cyclist on breaking her collarbone, shattering her teeth - and dealing with alopecia

Joanna Rowsell: 'I wear my wig to look normal'

The World Champion cyclist on breaking her collarbone, shattering her teeth - and dealing with alopecia
Bill Granger recipes: Our chef gives raw ingredients a lift with his quick marinades

Bill Granger's quick and delicious marinades

Our chef's marinades are great for weekend barbecuing, but are also a delicious way of injecting flavour into, and breaking the monotony of, weekday meals
Germany vs Argentina World Cup 2014 preview: Why Brazilians don't love their neighbours Argentina any more

Anyone but Argentina – why Brazilians don’t love their neighbours any more

The hosts will be supporting Germany in today's World Cup final, reports Alex Bellos
The Open 2014: Time again to ask that major question - can Lee Westwood win at last?

The Open 2014

Time again to ask that major question - can Lee Westwood win at last?