The French justice system is heading for a shake-up that has sparked anger among the ranks of French judges.
On Tuesday, French President Nicolas Sarkozy received a report on legal reform that recommends – among other measures - removing one of the country’s judicial symbols, its independent investigating magistrate - a unique position in France that is neither judge nor investigator.
France’s current 600 investigating judges are in charge of cases that are complex or involving severe crimes and work independently of the government and state prosecution.
However, since a miscarriage of justice in 2004 involving an investigating judge, Fabrice Burgaud, that led to innocent people being imprisoned under paedophilia charges, many observers have called for an overhaul of the French justice system.
According to French media, the report on legal reform, written by the Leger committee but perceived as having been masterminded by Sarkozy, recommends handing criminal inquiries over to prosecutors who are currently nominated by presidential decree.
French weekly Le Journal du Dimanche reports the Leger committee saying that the investigating judge “cumulates the functions of a judge and that of an investigator and, in other words, he is neither totally a judge nor totally an investigator.” Currently, the French investigating judge is in charge of producing both incriminatory and exculpatory evidence in the cases he handles and can decide whether the case should be tried.
Many judges have highlighted the difficult tasks investigating judges face, such as high-profile French judge Renaud Van Ruymbeke, who has handled several political and financial corruption cases. He has said it is difficult to “wear both hats” as investigator and arbitrator.
The independence of the judiciary at stake
Unions representing magistrates, however, say eliminating investigating judges amounts to radically challenging the independence of the French judicial system.
“Eliminating the investigating judge is not a problem in itself, but in that case, one must make the prosecution independent,” said the former president of France’s main magistrates union USM, Dominique Barella, in an interview with FRANCE 24.
"In European countries where there are no investigating judges, prosecutors do not depend on political power.”
Law professor Thomas Clay, who teaches near Paris in Versailles, also believes sensitive investigations will be shelved under the new judicial system. “Those in charge of investigations will have to submit to the political power,” Clay says, “it will no longer be possible to lead inquiries into anything that will bother the executive."
Fiery parliamentary debates ahead
To allay such criticism, the Leger committee suggests replacing the French investigating judge by a new judge to be known as the inquiry and liberties judge, who will be in charge of authorizing procedures, such phone-tapping, that infringe on civil liberties, French media reports say.
But according to Barella, similar judges already exist and do not guarantee the independence of the judiciary.
“We already have judges [in charge of civil liberties], but they are just a sham, judges who receive several tonnes of inquiries everyday and who cannot follow all of them," says Barella, also a member of the French Socialist Party.
As of Tuesday, Justice Minister Michèle Alliot-Marie will be in charge of writing a bill detailing the reform of the justice system, a delicate task ahead of fiery debates expected in parliament over the reform. A member of the Leger committee told French daily Le Figaro that it was clear “a clash was brewing”.
The creation of the committee on legal reform was itself marked by controversy, when two of its members stood down after Sarkozy announced the future removal of France’s investigating judges in January.