Hervé Lehman is a former investigating judge and lawyer at the Paris bar. In particular, he published
L'air de la calomnie.
Une histoire de la defamation
(ed. Du Cerf, 2020),
Le Procès Fillon
(ed. Du Cerf, 2018) and
Justice, a culpable slowness
(PUF, 2002).
To discover
Michel Houellebecq: "A civilization which legalizes euthanasia loses all rights to respect"
Is Justice above all suspicion?
The two highest magistrates of the Court of Cassation, therefore presidents of the two plenary formations of the Superior Council of the Judiciary, came to tell the President of the Republic, then in the media that it was necessary to stop criticizing the justice system. For the Attorney General François Molins, "
it is not possible, in a state of law, to accept that the judicial institution is thus discredited and destabilized
". For the first president Chantal Arens, the difficulties of justice are due only to the lack of material and human resources, the digital gap, and the multiplication of reforms. In other words, the difficulties of justice can in no way come from the judiciary, and criticizing it is contrary to the rule of law.
The European Court of Human Rights, temple of the rule of law, does not share this position of principle. Conversely, it considers that a "
high level of protection of freedom of expression
" must be granted "
when the comments made relate to a subject of general interest, which is the case, in particular, for comments relating to the functioning of the judiciary
”(See for example the Roland Dumas v / France judgment, July 15, 2010, 34875/07). And in fact, for what reason would justice be the only institution whose functioning could not be criticized, when one can criticize the policy of the President of the Republic, the government, national and territorial elected officials, the action of the police, the army, etc.? And would the right of criticism be reserved for the settling of scores between magistrates, since the Attorney General of Paris takes the liberty of saying in an interview granted to
Le Monde
that the national financial prosecutor's office "
was discredited by its former leader.
By refusing the hierarchical link with the general prosecutor's office, yet written into the texts, it was able to give the impression that the PNF was an autonomous institution, without limit.
Which can be scary in a democracy
”.
How to claim independence, refuse a real regime of questioning the responsibility of magistrates, and still want to prohibit citizens and elected officials to challenge the justice on its dysfunctions?
Herve Lehman
This right to criticize justice is all the more essential since magistrates are not elected, are not responsible other than to their peers, and that this responsibility is only brought into play in very rare cases, most often limited to criminally qualifying behavior. How to claim independence, refuse a real regime of questioning the responsibility of magistrates, and still want to prohibit citizens and elected officials to challenge the justice on its dysfunctions?
And since it is permissible to wonder about the weaknesses of justice and its causes, it is authorized not to share the official discourse of the high magistrates, relaying that of the unions. Of course, the justice system lacks resources, and France lags behind the major Western democracies on this point. The budgetary effort obtained by the Minister of Justice, corresponding to an 8% increase, is going in the right direction. But the explanation of the crisis of justice cannot stop there. The discourse of the lack of resources, shared with the police, the army, hospitals, national education, and the public service in general, to the point that one wonders why France is the champion of compulsory levies, this miserable discourse is also an alibi: since we lack the means,we cannot do better. And this leitmotif often makes it possible not to question operating methods.
Many dysfunctions do not come from a lack of resources.
This is the case with the politicization of a very small but active part of the magistrates.
Herve Lehman
However, many dysfunctions do not come from a lack of resources. This is the case with the politicization of a very minority but active part of the magistrates: the wall of idiots on which the officials of the Magistrates' Union pinned the right-wing political figures and two fathers of young girls raped and murdered without the slightest disciplinary proceedings have not been initiated, the use of the national financial prosecutor's office to bring down the right-wing candidate for the presidential election has nothing to do with the means. These scandals, on the other hand, have a certain connection with a corporatism which wants to prohibit any possibility of seeking the responsibility of a magistrate who confuses justice and militant action.
Likewise, the inability to question archaic working methods cannot be explained by the lack of resources. Let us take a daily example: some civil cases without important stakes are heard and pleaded at length before three judges while, in the courtroom next door, heavy and complex cases are pleaded before a single judge who prohibits lawyers from pleading. more than ten minutes. The explanation is not found in the means, but in a deficit in the organization of work, the magistrates often discovering the cases shortly before the hearing, even at the hearing. Examples of this type could be multiplied endlessly. Few jurisdictions have implemented dynamic management of the processing of civil cases,with timetables set at the start of the procedure and hearings organized and calibrated according to the importance and complexity of the cases. Those which have done it, and sometimes for a very long time, work much better, with the same means.
It is not the Estates General that is needed for justice, but audits of the organization and functioning of the courts.
Herve Lehman
On the criminal front, the French would not only be critical of the functioning of the investigation cabinets if they knew the truth: they would be horrified to discover investigation procedures that last five years, ten years, fifteen years, to the point. dead sometimes for years, with expertise that lasted a year, two years, three years. Where a buyout audit will be carried out in four weeks, the same expert will take two years for a forensic expertise; where the investigation of flagrance will have been completed in 48 hours, the police will take a year to execute a rogatory commission from the examining magistrate. The lack of resources has a good back here as well: the main reason is that the actors of the instruction have internalized these deadlines, so that the time does notno longer exists for them, but only for the indicted and the victims. And what to say when the Keeper of the Seals is pleased to have passed a law limiting preliminary investigations to three years (but still to five years for organized crime), except that voices were raised in the judiciary, in particular by through a former magistrate deputy, to criticize this modest attempt to speed up criminal proceedings.to criticize this modest attempt to speed up criminal proceedings.to criticize this modest attempt to speed up criminal proceedings.
The Court of Auditors notes, in its reports, in its reports the decline in the performance of the courts, and "
the need for the Ministry of Justice to equip itself with more structured management tools promoting better knowledge of the activity of the courts as well as better allocation of staff between jurisdictions
”; in less diplomatic terms, there are too many magistrates and clerks in some places and not enough in others, but the ministry does not have the tools to locally adapt the staff to the reality of needs (see last May report 2021 on the business continuity plan for judicial services during the health crisis linked to the Covid-19 epidemic).
It is not the Estates General that is needed for justice, but audits of the organization and functioning of the courts, with project management training applied to judicial cases. To progress, you have to accept criticism, know how to question yourself and want to change.