Justice: what will change the generalization of departmental criminal courts?

Since January 1, a new jurisdiction hitherto in the experimental phase has become widespread: the disappearance of popular juries in certain assize courts and the creation of departmental criminal courts. These criminal courts are composed only of five professional magistrates, there are no jurors, while they represented the particularity and the very essence of this trial court.

So far according to article 240 of the criminal procedure code, all assize courts were mixed, composed of the court and the jury. The court is composed of three professional magistrates, the president who must be a magistrate of the court of appeal, and the assessors. The mixed character of the composition of this court comes from the presence of the jury. The trial jurors forming this jury are not professionals and are drawn by lot from the electoral rolls. For each trial, the trial jurors are six in number at first instance and nine on appeal (since the law n°2011-939 of August 10, 2011). Moreover, section 254 of the Code of Criminal Procedure provides that “the jury is composed of citizens”. In this sense, the assize court is qualified as a popular jurisdiction: representatives of the people take part in the judgment of crimes.

A reform with vague ambitions

The law of March 23, 2019 established the departmental criminal court. Its article 63 therefore provides that “adults accused of a crime punishable by fifteen or twenty years of criminal imprisonment, when it is not committed in a state of legal recidivism, are judged in the first instance by the criminal court “. The composition of this jurisdiction is therefore made up of a president and four assessors, and judges the least serious crimes with regard to their sentences.

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This jurisdiction was experimental until December 31, 2022, and generalized since 1er January. The stated objective is to avoid the correctionalization of criminal offenses (i.e. omitting the criminal qualification of the fact judged in order to qualify it as an offense and have it tried by a criminal court) and the hazard of the decisions of the jurors .

In the law Project, it is affirmed that this new jurisdiction is created “mainly in order to reduce the duration of the hearings, to thus allow the judgment of a greater number of cases at each session, and to limit consequently the delays” before the hearing. The term “mainly” is perplexing since it seems that other objectives are assigned to this new jurisdiction, in particular financial and human resources. In the background, there appears to be a budgetary objective for this reform due to the cost of criminal hearings of the course of assizes.

Relative efficiency

The report of the monitoring committee on this new jurisdiction seems mixed. Admittedly, the files are judged more quickly, the 387 cases judged “required 863 days of hearing (i.e. 2.23 days per case) but according to the elements transmitted to the mission in charge of the assessment of the experimentation it would have taken 982 days of audience for the courts of assizes to judge these cases, ie 12% more”.

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The rate of acquittal is similar to that of the assize courts, on the other hand the rate of appeal is higher. Regarding the means used for this criminal justice “if the figures sometimes differ, the average cost of a day of hearing in the departmental criminal court is estimated at €1,100, compared to €2,060 at the assizes. The real difficulty is that of personnel. The departmental criminal court is made up of five magistrates, at least three of whom must be career judges. In total, the 387 cases mobilized 1,935 magistrates, of whom 15% were honorary and 18% were temporary magistrates. However, justice lacks human resources. »

According to evaluation committee and follow-up of the departmental criminal court, responsible for taking stock of the experiment: the generalization of departmental criminal courts

“appears to be premature given the state of human resources”. On the other hand, he is in favor of these courts trying defendants in a state of legal recidivism and minors.

Reversal of principles

One of the fundamental principles of French assize courts is the oral nature of the debates. This is a cardinal principle of our judicial organization. If this principle is not expressly provided for in the Code of Criminal Procedure, the Court of Cassation deduces it from section 347, paragraph 3 of the Code of Criminal Procedure under which the president orders that the case be filed with the clerk and that, when the judges retire to deliberate, they carry only the decision of indictment. What then before the departmental criminal court?

The new reform considerably weakens the principle of oral hearings before the Assize Court, since the entire composition now has access to the file and it can be taken away in the framework of deliberation. That is to say that all the magistrates who sit in the departmental criminal court will be able to consult the procedural file and the latter will be present during the deliberation. This therefore seems contrary to the principle of the oral nature of the proceedings because during the judgment phase of the criminal procedure any incriminating and exculpatory evidence against the accused can be discussed, debated in a contradictory, public manner, and the decision pronounced cannot rely only on what was debated orally and not on the documents of the written procedure during the phases preceding the judgment phase.

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The generalization of departmental criminal courts therefore seems hasty. This, moreover, is what emerges from the rostrum of Benjamin Fiorinilecturer in private law and criminal sciences, who once again affirms that the objectives have not been achieved, and that this generalization is absurd, in particular because of the absence of jurors.

Citizens far from justice?

What is mainly regrettable in this absence is that it removes the democratic nature of criminal hearings. Admittedly, the assize court was not totally abolished, but the lesser intervention of jurors distanced the citizen from justice as a judge.

We can even consider that in these spaces a form of direct democracy is at work. It is, it seems, apart from the cases of referendums, the only possibility for the citizen to express himself directly and to exercise concrete power.

Some magistrates are keen to recall the democratic nature of the assize courts. The President of the Assize Court of the Somme, Sylvie Karas, almost systematically introduced the sessions with these few words “the Assize Court is the emanation of democracy” and the magistrate Denis Salas affirms that “with its popular jury, the Court of Assizes is the mirror of a democratic ideal”.

At a time when the citizens seem remote from justice and show a growing distrust of the judicial system this reform does not seem appropriate. This is one of the reasons that led parliamentarians to table a bill aimed at preserving the jury and therefore eliminating this new jurisdiction.

If this departmental criminal court is not questioned, then we are probably living the last hours of the assize court as we knew it until now. This new jurisdiction completes the repressive jurisdictions in the judicial order which until now relied on the police court to judge contraventions, the correctional court which judges the perpetrators of offenses and the assize court judging crimes. For the time being, the departmental criminal court is generalized and it is criminal justice that is impacted both in these principles and in its organization.

Justice: what will change the generalization of departmental criminal courts?