Sunday, February 24, 2008

Dark days ahead in France

The French justice system is scraping bottom, according to former Justice Minister Robert Badinter (left).
On Thursday, the Conseil constitutionnel, France's constitutional court, approved the bill I discussed last month calling for life internment of perpetrators sentenced to at least 15 years in prison for crimes aggravés -- crimes committed with aggravating circumstances -- committed against minors. Stating that the measure constitutes “ni peine ni sanction”, i.e., neither a criminal penalty nor an administrative sanction, the “wise men”, as the constitutional judges are called, affirmed that a person who has served his or her term for a crime but is determined to still be dangerous may be interned for the rest of his or her life, as long as regular passages before psychiatrists confirm dangerousness. The doctors’ union, among others, opposed the law because, among other things, it confuses mental illness with criminal delinquency, standard practice in totalitarian societies: the state, rather than civil society, deals with social deviance (mental illness, political dissidence, or any other behavior or belief that can be labeled dangerous) as well as criminal delinquency. As first proposed, the law was to apply retroactively, another standard of totalitarian regimes that is contrary to general principles of criminal law and international human rights law. The Conseil d’Etat, the highest administrative court in France, nixed the retroactivity clause: internment could only apply if, at the time of sentencing, the judge tacked it on to the sentence. The lower house of parliament therefore approved the bill without the retroactivity clause. Under pressure from President Nicolas Sarkozy (left), his party’s majority in the Senate muscled through a version of the law with the retroactivity clause put back in. The Conseil constitutionnel took it out, thus limiting application until at least 2023, and added a further limitation: during their incarceration, persons subject to the provision must have been provided the psychological and other help necessary to their rehabilitation. The provision thus would, in theory, apply only to those who, despite such services, are determined to still be too dangerous to release. In a stunning challenge to the separation of powers dictated by the French Constitution, Sarkozy has asked the chief justice of the Cour de cassation how to get around the Conseil constitutionnel, saying "we can’t let the 'monsters' go free". One of the magistrates’ unions expressed “stupefaction”, and both unions are calling for resistance on the chief justice’s part as well as for demonstrations: art. 62 of the Constitution provides that the Conseil’s decisions are beyond all recourse, and are to be followed by all courts as well as the executive and the legislature. Standing by her man, so to speak, is the current Justice Minister, Rachida Dati (right), who says the law represents “significant progress” and that Sarkozy is justified in his challenge.
President and Justice Minister together against the Constitution. Remind you of anyone?

No comments: