Tuesday, February 1, 2011
Both the pre-trial and dispositive roles of the French prosecutor have continued to expand over the last decades with a resulting shift in power away from the trial judge and the juge d’instruction. The recommendations of the Léger Commission in 2009 went beyond the redistribution of authority and proposed the abolition of the juge d’instruction, placing the prosecutor in charge of all criminal investigations, even the most serious, complex, and sensitive. At the same time, the prosecutor’s role and status has been challenged in a number of ways — in particular concerning her function as judicial supervisor of the detention and interrogation of suspects in the garde à vue. The case of Medvedyev v. France called into question the prosecutor’s status as a judge and the string of cases beginning with Salduz v. Turkey has caused several jurisdictions, including France, to reconsider the provision made for custodial legal advice. There is a real tension between the direction of reforms proposed within France and the pressure from Europe to ensure more effective due process safeguards. As a result of domestic litigation and constitutional challenge, the French government is slowly relenting and allowing lawyers a greater role. It has yet to grasp the nettle of the independence of the prosecutor, however. The ECtHR has made it clear that a judge must be independent of the executive and of the case parties — both of which are contested in relation to the French prosecutor. Within a procedural model in which defense rights are secondary to the supposed truth-seeking ideology of the judicial supervisor, the independence of the prosecutor is crucial.