Written by - Mr. Jacques Bellezit
The rise of “collaborative law” from the '90s shows that Alternative Dispute Resolution (ADR) methods are in a perpetual motion of growing: From Biblical King Solomon1 to modern-day Arbitrators like Max Hueber2, arbitration and mediation are a constant practice in various societies, eras, and matters: Territorial disputes3, war damages4,sports5.....
However the use of ADR in criminal matter is discussed by several scholars6 as criminal matters involve the preservation of public order, and so, of the sovereignty of an independent State: Indeed, a territory in which an authority has no control is not considered as a sovereign State7
Moreover, ADR relies mainly on the common agreement of parties to be involved in such mechanisms by a arbitration clause which is autonomous from other parts of the contracts in several juridictions8.
On the contrary, Criminal law involves in all jurisdictions, the use of the constraint. This constraint can be exercised by a magistrate (or under such magistrate's authority by law enforcement officers) through orders or warrants without the agreement of individuals.
All the conundrum is to find a balance between a pure repressive and authoritarian system and a all-voluntary system that relies only on the agreements of Parties.
Fig 1 : From Voluntarism to Authoritarianism
In this regard how is situated France?
I) General considerations on the French criminal system
Motherland of political and judicial theoreticians like Montesquieu or Voltaire, France is a civil law country with an inquisitorial system, relying heavily on magistrates.
The main legal text governing the status of magistrates is Order n° 58-12709, which divide the corps of magistrates into two main categories :
· Judges (“Juges”, in French, also known as “Magistrates of the Seat”)
· Prosecutors of the Republic (“Procureurs de la République” also known as “Magistrates of the Parquet” or “Public Ministry”).
On the contrary of what may exist in common law systems, magistrates are not necessarily senior lawyers who were called to the Bar before becoming magistrates.
This said, one has to mention the “principle of opportunity” which is a core concept in French criminal procedure.
II) Principle of opportunity in French criminal law
Being in charge to represent public interest, Prosecutors are vested with authority over police officers to search and collect pieces of evidence and make investigations10.
Once prosecutors have enough elements in their possession, Article 40-1 of the Code of Criminal Procedure give them three choices11
· To prosecute;
· To use alternative methods to prosecution;
· To close/dismiss the case.
Alternatives methods to prosecution in French criminal law
Such measures are exhaustively listed by articles 41-1, 41-1-2, and 41-2 of the French criminal procedure code.
· General measures (Article 41-1);
· Judicial convention of public interest in financial matters (Article 41-1-2);
· Judicial convention of public interest in environmental matters (Article 41-2).
In each case, one can be helped by a counsel.
II-A) General measures
Thoses measures may be the most familiar to ADR practitioners at the Prosecutor's choice following the gravity of the offense and the personality of the offender.
A choice of 19 options is possible: among them, there is :
· A fine
· Handover to public authorities the property of the infraction's product /tool...
· Handover one's vehicle
· Handover one's driving license to Court's registrar for 6 months maximum
· Following an alcohol-rehabilitation program
· Handover one's hunting license for 6 months maximum
· Compulsory community service
· Enrollment in a professional internship/training...
· Enrollment in training against sexism, use of drugs, human trafficking
· No-contact orders (between the offender and victims, witnesses, partners)
· Therapeuthic injonction/Mandatory care
· Payment of damages to the victims
Those measures, called “composition pénale” (criminal settlement) can be made by Prosecutors themselves as well as, on their behalf, by police officers, mediators, or delegates.
Once an agreement is found, a Judge must validate the agreement and this validation stops the criminal procedure.
According to Article 41-2 of the French criminal procedure code, those measures cannot be used in case of press offenses12 (libel, defamation...), involuntary homicide, and political infractions (terrorism, bomb attacks...). Moreover, minors can benefit from those provisions if they are more than 13 years old.
And, last but not least, the infringement of the convention can lead to classical prosecution.
Judicial convention of public interest in financial matters (Article 41-1-2)
A judicial convention of public interest (“Convention judiciaire d'interêt public”) (CJIP/JCPI) is a specific type of measure used in financial, tax and business matters, created in 2016
According to article 41-1-2 of the French Criminal Procedure Code, the Prosecutor and the offender (often legal persons) can agree that this offender will :
· Pay a fine (maximum 30% of the turnover established in the last 3 years);
· Be regularly monitored by the French Anti-Bribery Agency during three years maximum, to enforce measures and procedures listed by Article 131-39-2 of the French criminal code such as the drafting of a Code of Conduct, audits, whistleblowing/Internal alert system...;
· Pay damages;
As with general measures, the convention must be validated by a Judge, which will put an end to the procedure.
If this JCPI is not seen as a formal sentence, it is nevertheless, published through a press release and on the websites of the Ministries of Justice and Finance, as well as the validation order.
The JCPI in environmental matters is similar, mutatis mutandis to the one for financial/business and tax matters.
What can we draw from this short glance? In 2018 62 000 mediations/alternatives measures were rendered by Prosecutors or on their behalf, chiefly on traffic offences13. The most common sentence is a fine, even if some law expended the fields of various compulsory training (such as training against domestic violence or sexism, following the MeToo Movement)14. However, those measures have also the advantage to handle the workflow of criminal courts. Do they really rely on mediation seen as a mutual acceptance of a solution?
Of course, this short glance is necessarily not complete: we have not dealt in this article about the “Reconnaissance préalable de culpabilité” (French limited equivalent of plea bargain) because this procedure definitely doesnt get into mediation but is more like a fast trial for minor issues.
However, the data speak for themselves: for day-to-day minor offenses made by primo-offenders, mediation is an accurate and balanced measure even if it doesnt place the offender and public authority on the same place. Prosecution is and will be the guardian of the common interest.
Despites of the criticism towards the institutions of the French “Parquet” (Prosecution service) as being dependant of the political authority15 and benefitting of too much power, one can be satisfied with this method if it used properly for minor offenses.
1 Book of Kings 3, 16-28
2 SCHINDLER “ Max Huber – His Life “ The European Journal of International Law Vol. 18 no. 1 © EJIL 2007; Max Huber as Arbitrator: The Palmas (Miangas) Case and Other Arbitrations
Daniel-Erasmus Khan Author Notes
European Journal of International Law, Volume 18, Issue 1, February 2007, Pages 145–170, https://doi.org/10.1093/ejil/chm011
3 See, for instance, the Papal arbitration about the Beagle Channel conflict between Chile and Argentina (REPORTS OF INTERNATIONAL ARBITRAL AWARDS Dispute between Argentina and Chile concerning the Beagle Channel 18 February 1977 VOLUME XXI pp.53-264 Dispute between Argentina and Chile concerning the Beagle Channel (un.org) )
4 REPORTS OF INTERNATIONAL ARBITRAL AWARDS Alabama claims of the United States of America against Great Britain Award rendered on 14 September 1872 by the tribunal of arbitration established by Article I of the Treaty of Washington of 8 May 1871
6 Douglas, K. (1996). ADR : is it viable in criminal matters? Legaldate, 8(3), 3–5. https://search.informit.org/doi/10.3316/agispt.19964000 (Original work published July 1996) ; 7 Disp. Resol. Mag. 4 (2000-2001)
Promises and Challenges- ADR in the Criminal Justice System ; 15 Disp. Resol. Mag. 4 (2008-2009)Mediation in Criminal Matters
7 The Badinter Commitee recalled in plain language that, according to the international customary law “ the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a state is characterized by sovereignty”. Such circumstances have driven for instance the European Court of Human Rights to consider “Moldovan Republic of Transniestria” as a de facto part of the Russian juridiction (ECHR Grand Chamber 23rd February 2016 Mozer v/ Moldova & Russia (Application no. 11138/10) )
8 For US Law see : Prima Paint Corp. v. Flood & Conklin Manufacturing Co388 U.S. 395 (more)87 S. Ct. 1801; 18 L. Ed. 2D 1270 ; For French Law see Cour de Cassation, Chambre civile 1, du 20 décembre 1993, 91-16.828, Publié au bulletin “Dalico”
10 In case of crimes (rape, murder...) or complex cases, investigation process is made under the authority of a special Judge, the Juge d'instruction (Investigating/Examining judge). Due to French influence on Cambodian legal system, such Investigating judges exists at the Khmer Rouges Tribunal (cf Article 23 of the Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006).à
11 Article 40-1 of the French criminal procedure code : Chapitre II : Du ministère public (Articles 31 à 48-1) - Légifrance (legifrance.gouv.fr)
12 In France, Press regime is ruled by the Act on the Freedom of Press of July 29nd 1881 (“Loi du 29 juillet 1881 sur la liberté de la presse)
14 It is the case with the “Schiappa Act” of August 3rd 2018 (Act n°2018-703 reinforcing the fight against sexist and sexual violences)
15 Cf European Court of Human Rights (Grand Chamber) “23rd November 2010” , n°37104/06.