Julien Nava is a lawyer at the Court.
In an article published on April 16, 2024, entitled
“Daval affair: “let’s remove the right to lie for delinquents and criminals””
, my colleague Maître Laure-Alice Bouvier defended the need to make those involved take an oath. This forum aroused great excitement within the legal community and can only alarm those who, a few weeks after his death, are interested in the late Robert Badinter's fights for defense rights.
Indeed, in any judicial system presented as democratic, the rights of defense cannot become an empty word adapted to the circumstances of emotion or developments in society. Vice President Vanessa Bousardo even recalled on the occasion of her recent participation on the jury of an eloquence competition that Robert Badinter had again alarmed her, last November, about the holding of mass trials where the defense of a lawyer faced those of hundreds of colleagues representing the civil parties, which can appear unbalanced.
“To be a lawyer is to defend”
. The rights of defense are legal principles which guarantee to any person accused of an offense the right to a fair and effective defense, not in the sense of the assurance of an acquittal but of a balanced fight before the judge. These rights include the presumption of innocence, the right to a fair trial, the right to an attorney and the right against self-incrimination. These rights are therefore often – unfortunately we are getting used to it – being undermined by an unconcerned press and today even by jurists, it seems, who are not very rigorous. However, they form what the notion of the rule of law essentially contains - not as an overused term but as respect for principles guaranteeing the proper conduct of trials to which we must be resolutely deferential.
Defendants have the right not to tell the truth before the courts or judicial authorities, and even to their lawyers!
Julien Nava
This is not a question of prohibiting any criticism or any questioning of the legitimacy or even the justice of these principles. On the contrary, I am particularly inclined to return to a vision of the jurist as being one
“who seeks to think of a link between legal reality and reality “simply”, taken in its entirety”
, thus setting out to discover natural principles. who govern us. However, the point here is to recall how essential these protections are to guarantee in this case that the accused person benefits from fair treatment before the law. Let us not omit here what politicians often remind us in an outdated way:
“Terrorists want us to live differently”
…
It is also a matter of demonstrating that without these rights, there is a real risk that individuals will be unjustly convicted or victims of abuse of power by judicial authorities. Let us not forget here to recall this Voltairian truism, which is nevertheless accurate:
“It is better to have a hundred guilty people at liberty than a single innocent person in prison”
.
At the heart of the rights of defense is therefore the right of the accused to lie. In other words, defendants have the right not to tell the truth in court or to judicial authorities, and even to their lawyers! This notion may seem antithetical to the idea of justice as intended for the manifestation of truth, but it must nevertheless be maintained that it is crucial for several reasons.
Lawyers cannot become the vassals of expeditious justice: the right to lie is naturally part of these resources, and it is true that its use is often important to rebalance the forces between the defense and the prosecution.
Julien Nava
First, the right to lie protects individual liberty: individuals have the right to control the information they disclose about themselves, even if they are accused of an offense. Furthermore, forcing defendants to tell the truth could violate their right against self-incrimination. While allowing defendants to lie may seem problematic because it can lead to the hiding of evidence or the manipulation of facts, it is up to the justice system to shed light on these issues by ensuring a fair trial. Therefore, there is no democratic society where the doubt that the accused has lied cannot completely benefit him.
Then, defense lawyers, as
“auxiliaries of justice”
have the role of representing the best interests of their clients; this, using all legal resources at their disposal to defend them. Lawyers cannot become vassals of expeditious justice: the right to lie is naturally part of these resources, and it is true that its use is often important to rebalance the forces between the defense and the prosecution, which seems to benefit from it. also when evidence is lacking.
Finally, this right is legitimate because the legislator and the judge regulate its exercise: it is important to emphasize that this right is not absolute and must be exercised in compliance with the laws and ethical principles. Defense lawyers therefore have a responsibility to represent their clients in the manner that seems most ethical to them, while using all legal means at their disposal to ensure an effective defense. This vision of the lawyer's role is not the simplest but it is, in my opinion, the only one which validly allows litigants to place their trust in the judicial institution and make them fully respectful of the decisions it makes. returns.
This is the meaning of the defamation trial which took place and whose verdict is now eagerly awaited.