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.

News
Denny Miller in 1959 remake of Tarzan, the Ape Man
people
Arts and Entertainment
Cheryl despairs during the arena auditions
tvX Factor review: Drama as Cheryl and Simon spar over girl band

News
Piers Morgan tells Scots they might not have to suffer living on the same island as him if they vote ‘No’ to Scottish Independence
news
News
i100Exclusive interview with the British analyst who helped expose Bashar al-Assad's use of Sarin gas
PROMOTED VIDEO
News
ebooksAn unforgettable anthology of contemporary reportage
Sport
Angel Di Maria celebrates his first goal for Manchester United against QPR
Football4-0 victory is team's first win under new manager Louis van Gaal
Arts and Entertainment
art
News
newsIn short, yes
Arts and Entertainment
Rob James-Collier, who plays under-butler Thomas Barrow, admitted to suffering sleepless nights over the Series 5 script
tv'Thomas comes right up to the abyss', says the actor
Arts and Entertainment
Calvin Harris claimed the top spot in this week's single charts
music
Sport
BoxingVideo: The incident happened in the very same ring as Tyson-Holyfield II 17 years ago
News
Groundskeeper Willie has backed Scottish independence in a new video
people
Arts and Entertainment
The Doctor poses the question of whether we are every truly alone in 'Listen'
tvReview: Possibly Steven Moffat's most terrifying episode to date
News
i100
Life and Style
Cara Delevigne at the TopShop Unique show during London Fashion Week
fashion
News
The life-sized tribute to Amy Winehouse was designed by Scott Eaton and was erected at the Stables Market in Camden
peopleBut quite what the singer would have made of her new statue...
Sport
England's Andy Sullivan poses with his trophy and an astronaut after winning a trip to space
sport
News
peopleThe actress has agreed to host the Met Gala Ball - but not until 2015
Latest stories from i100
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

Teaching Assistant for KS1 & KS2 Huddersfield

£50 - £65 per day: Randstad Education Leeds: We are looking for flexible and i...

Teaching Assistant for KS1 & KS2 Huddersfield

£50 - £65 per annum: Randstad Education Leeds: We are looking for flexible and...

Primary Teaching Supply

£130 - £160 per day: Randstad Education Leeds: Qualified KS2 Supply Teacher r...

Year 1/2 Teacher

£130 - £160 per day: Randstad Education Leeds: Qualified KS1 Teacher required,...

Day In a Page

These Iranian-controlled Shia militias used to specialise in killing American soldiers. Now they are fighting Isis, backed up by US airstrikes

Widespread fear of Isis is producing strange bedfellows

Iranian-controlled Shia militias that used to kill American soldiers are now fighting Isis, helped by US airstrikes
Topshop goes part Athena poster, part last spring Prada

Topshop goes part Athena poster, part last spring Prada

Shoppers don't come to Topshop for the unique
How to make a Lego masterpiece

How to make a Lego masterpiece

Toy breaks out of the nursery and heads for the gallery
Meet the ‘Endies’ – city dwellers who are too poor to have fun

Meet the ‘Endies’ – city dwellers who are too poor to have fun

Urbanites are cursed with an acronym pointing to Employed but No Disposable Income or Savings
Paisley’s decision to make peace with IRA enemies might remind the Arabs of Sadat

Ian Paisley’s decision to make peace with his IRA enemies

His Save Ulster from Sodomy campaign would surely have been supported by many a Sunni imam
'She was a singer, a superstar, an addict, but to me, her mother, she is simply Amy'

'She was a singer, a superstar, an addict, but to me, her mother, she is simply Amy'

Exclusive extract from Janis Winehouse's poignant new memoir
Is this the role to win Cumberbatch an Oscar?

Is this the role to win Cumberbatch an Oscar?

The Imitation Game, film review
England and Roy Hodgson take a joint step towards redemption in Basel

England and Hodgson take a joint step towards redemption

Welbeck double puts England on the road to Euro 2016
Relatives fight over Vivian Maier’s rare photos

Relatives fight over Vivian Maier’s rare photos

Pictures removed from public view as courts decide ownership
‘Fashion has to be fun. It’s a big business, not a cure for cancer’

‘Fashion has to be fun. It’s a big business, not a cure for cancer’

Donatella Versace at New York Fashion Week
The fall of Rome? Cash-strapped Italy accused of selling its soul to the highest bidder

The fall of Rome?

Italy's fears that corporate-sponsored restoration projects will lead to the Disneyfication of its cultural heritage
Glasgow girl made good

Glasgow girl made good

Kelly Macdonald was a waitress when she made Trainspotting. Now she’s taking Manhattan
Sequins ahoy as Strictly Come Dancing takes to the floor once more

Sequins ahoy as Strictly takes to the floor once more

Judy Murray, Frankie Bridge and co paired with dance partners
Wearable trainers and other sporty looks

Wearable trainers and other sporty looks

Alexander Wang pumps it up at New York Fashion Week
The landscape of my imagination

The landscape of my imagination

Author Kate Mosse on the place that taught her to tell stories