Giving a voice to the victims of crime
The French legal system could provide valuable pointers to reforms that could improve the fate of victims in Ireland and make the criminal justice system more efficient
RECENT ARTICLES on the views of victims of crime on the Irish criminal justice system in The Irish Times highlighted how dissatisfied the victims can often feel with the process and how much they feel removed from having any meaningful input into the system as they seek to get justice for themselves or their loved ones.
One such victim of crime, who lost her son in a knife attack, told The Irish Times how she had lost hope and trust in the justice system, and her story seems to be mirrored in the experiences of others as evidenced by the campaign of Advic, which argues for a rebalancing of the Irish criminal justice system and the recognition of the families of homicide victims.
In such circumstances, it might be instructive to look at the area of criminal law of other countries with a view to trying to make progress towards a better system of justice, both for the individuals in a particular country and also perhaps for a common system with regards to the principles of mutual assistance and mutual consideration.
It is not my purpose to give any lessons to anybody; the French are often considered to be arrogant, which is far from being clever. But, based on my 30-year professional experience, including 10 years in an American law firm, I would like to highlight some important differences between the Irish and the French criminal procedure.
I am also familiar with the feelings of relatives of victims of crimes, especially since my own father was murdered in March 1997 in the south of France. Fortunately for my family and myself, the murderers were arrested a couple days after the crime and rightfully sentenced in court.
When a member of your family is killed, you want to know the facts. This rapidly becomes an obsession. What happened? Did the person involved suffer and for how long? Frequently you also feel guilty. I should have been there, or I should have said or done something that may have prevented the crime. The feelings are not always rational until you get to know what happened.
I think that a victim can only recover from the tragedy of a crime against a close relative or friend when he or she knows what happened and has the relief of seeing the killer condemned by a criminal court with an adequate and proper sentence . Otherwise, when you stay in the dark and the case remains unsolved, the pain is permanent, which can be very destructive over a long-term period.
In that respect, the French criminal procedure seems much less blunt that the Irish one, but perhaps not less efficient. The French criminal procedure provides that in a crime case an inquiry period starts under the supervision of an inquiry judge (Juge d’Instruction), who works beside the prosecutor to establish the facts and instructs the police. The inquiry judge must take into consideration all relevant facts and evidence and, regarding any suspect, strike the balance between any favourable or non-favourable evidence.
When he believes that there is sufficient and serious evidence against any suspect, he must charge him and eventually issue an arrest warrant. When a suspect is charged, he or she has access to the criminal file and is fully assisted by a lawyer. The victims who suffer a direct loss from the crime, including parents and relatives, can also instruct a lawyer to represent them in the process. This is called Constitution de partie civile.
Such a lawyer has access to the criminal file in due course, when the inquiry judge finds it proper. A CD-Rom from the criminal file is sent on a regular basis to the lawyer of the family who can inform his clients of any progress made. They do not stay in the dark, which might otherwise drive the victims crazy. Also, this lawyer can get the thoughts and inputs from his clients’ dialogue with the inquiry judge and raise some demands either during meetings or in writing.
Because the victims can play an active role in the criminal inquiry, they automatically feel better and their input could be useful to move towards a resolution of the case.
This compares to Ireland where, when the Garda work on a criminal case, victims of crimes are set aside and may remain in the dark for many years, suffering greatly in the absence of any decision by the Director of Public Prosecution (DPP) to charge any suspect. They do not know what happened during the crime and what is going on in the criminal procedure. This is very hard to live with on a long-term basis.
In France, if the case ends up in a criminal court after a decision by the inquiry judge confirmed by a court (Chambre d’Accusation), the lawyer for the family will be authorised to plead in court on behalf of his clients, sometimes for several hours, including requesting damages from the criminal court for his clients, and before pleadings from the prosecutor and the defence lawyers.
There is a major point of distinction between the two systems in that, under French criminal law, when the inquiry judge believes there is sufficient and serious evidence against a person, he charges this suspect for the crime, who is presumed innocent until he or she is finally tried by a criminal court. The inquiry judge decides if there are sufficient and serious evidence to send the person charged to trial or not.
The French justice system is not restrained by the notion of reasonable prospect of conviction, which appears to be a factor in Ireland for the DPP when it comes to deciding whether or not to prosecute. This notion of a reasonable prospect of conviction seems too vague to be appropriate.
The French justice system believes that good justice often requires proceeding to try a suspect before a criminal court, where the truth is often revealed. If the suspect tried is found not guilty by the court, it is not considered to be a failure on behalf of the French state, but that justice has prevailed at the end.
On the contrary, how many parents of victims of crimes in Ireland wait a very long time for a decision to charge from the DPP which might never come because of this notion of reasonable prospect of conviction?
I think that any reasonable doubt is always part of the process until the end of it. Decisions not to prosecute and therefore not to act from the DPP are often an immense cause of frustration for the victims and seem to me contrary to a good and fair justice system at the level of European standards.
Finally, French justice does not accept the principle of pleading guilty in criminal cases, which may also lead to immense frustration for the victims as the facts of the case may not be as exposed as fully as if the case had gone to a full trial where the evidence would be tested and details would emerge.
I would like these issues to be debated in Ireland to consider any potential reform that would improve the fate of the victims and may render the criminal justice system both more efficient and more satisfactory.
Alain Spilliaert is a member of the Paris Bar and lawyer for the Association for the Truth in the Murder of Sophie Toscan du Plantier and her family. firstname.lastname@example.org