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Thesis

French

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10670/1.oyc4d5

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The search for the truth in french and anglo-saxon criminal proceedings

Abstract

This study shows that the criminal process finally acquires more consistency than the crime itself. The “criminal adventure”, namely the tragical story of the crime itself, turns into “the judicial adventure”, namely the path of justice towards the final decision (conviction or dismissal). Whether it deals with the French or with the Anglo-Saxon models, the legal rules are so complicated that they create a judicial logic which is specific and clipped from the facts of the case. In comparison, the motives and the circumstances of a crime are always simple. Accordingly, the judicial issue appears to be more (and often too much) elaborated than the crime itself.The study also shows the unchanging character of the criminal justice. Whether it is in France or in the Anglo-Saxon countries, the fundamentals of the two justices which are concurrent – inquisitorial model and adversary one- are the same that in the Middle Age. Of course, some reforms happened. The importance of the rule of the contradictory increases, etc. However, the main concern of the French justice still deals with a pretrial investigation which is very thoroughly conducted by a state agency. The Anglo-Saxon model always lies in the confrontation of two thesis with a practical advantage given to the prosecution. These different approaches by the two justices are attributable to a different social philosophy. The status of the suspected person greatly differs whether he is prosecuted in France or in the Anglo-Saxon countries: in France, this status is a matter of the search for the truth; in the Anglo-Saxon countries, this status is in practice that of an almost guilty one, even if his guilt must be proved beyond a reasonable doubt.This social and/or ethic philosophy recuts another one: the political philosophy. In France, the individual is assisted since the State is deemed to be “stronger” than him; in the Anglo-Saxon countries, the individual is a free man; accordingly, he is solely responsible for his acts. Therefore, in France, the State wants to fix up its own opinion about the crime; in the Anglo-Saxon countries, the confrontation of the prosecution and the lawyer outdoes all the rest, in particular the truth. Moreover, in these countries, according to the freedom and the independence of the individual, an undue importance is given to confessions.However, the Anglo-Saxon political philosophy is an extraordinary lever for the history and the liberty and also for the economic expansion. Without it, the continental countries would not have been able to be freed from the conquerors of the two world wars and the cold war. Without it, the US would not be a forefront of the progress.We do not consider that the Anglo-Saxon world made few positive contributions to the criminal proceedings. Indeed, this is the famous English Habeas Corpus Act of 1679 which created the idea of a reasonable time to be tried in court and, if not, to be released from prison. From the English comes the idea of an explicit list of rights of the defence, in particular in some articles in the Magna Carta of 1212 and then officially included in the Bill of Rights of 1689. From the Americans comes the idea of making the rights of defence sacred through the amendments of the constitution. We remember that this idea arrived late in Europe with the ECHR.Therefore, the study shows that the Anglo-Saxons countries which benefit from a reputation of pragmatism have rather acted as theoreticians of criminal law. They have provided the world of criminal justice mainly with contributions close to symbols. They have underestimated the consequences of these symbols in the practice of the criminal proceedings. The study shows also that the French, who are often known for their dogmatic approach of problems, have a better understanding of the criminal proceedings.The study shows especially that the Anglo-Saxon world of criminal justice and the French one totally ignore each other.

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