For a moment, it’s as if Eric Dupond-Moretti had put on his lawyer dress again. To sound the charge against the preliminary inquiries. “I affirm that an investigation carried out in secret, over an indefinite period and without giving the suspect the possibility of defending himself, is a violation of human rights”, explained the Minister of Justice on March 4 in the weekly Point.
This Wednesday, April 14, he presents his justice reform bill in the Council of Ministers. A text which provides in particular to better frame the preliminary investigations conducted under the authority of the prosecution, while allowing the defense better access to the file, under certain conditions. An absolute necessity in the eyes of criminal lawyers.
“The problem is that with these investigations, there is no possibility of contradictory, lance Me Patrick Maisonneuve, who practices in Paris. For two or three years, you can investigate a person, take them into custody without giving them the opportunity to defend themselves properly. “
Faced with facts of a criminal nature, the prosecutor can open a judicial investigation and entrust the case to an examining magistrate, then responsible for directing the investigations carried out by the police or the gendarmerie. This is often the case in the most serious or complex cases.
But the prosecution can also choose to open a preliminary investigation. “This is what is most common. Out of 100 cases that arrive before a criminal court, we can say that 95 or 96 will have been dealt with as part of a preliminary investigation without ever having been passed by an investigating judge ”, specifies Frédéric Chevallier, public prosecutor of Blois.
With this procedure, the prosecutor keeps control of the investigations, without the risk of getting bogged down by an investigating judge overwhelmed with cases. According to a report submitted in February to the Ministry of Justice, 70% of preliminary investigations are completed within six months. Almost 8% last more than two years, however, and 3% more than three years. Without the defense being able to have access to the file, nor to request certain acts (expert opinions, hearing of witnesses, confrontation) as it can do before an examining magistrate.
“For several years, a person can be the subject of an investigation without knowing exactly what they are being accused of. And discover in court the main track followed by the prosecution without the defense having been able to do anything about it ”, deplores Me Olivia Ronen, penalist in Paris.
For their part, the prosecution believes that keeping the secret is sometimes necessary for the effectiveness of the investigation. “It may not be appropriate for the respondent to know that we are investigating such and such a person close to him or what we found while carrying out such a search”, underlines Frédéric Chevallier.
“But once we have gathered enough elements, we can quite open the case to the defense. We do it regularly ”, assures Fabienne Klein-Donati, attorney for Bobigny. “And if sometimes, some investigations take a long time, it is often because the judicial investigation services are overwhelmed”, she adds.
Faced with this observation, the reform provides that the duration of a preliminary investigation may not exceed three years. After any act directly implicating him (custody, hearing, search), the defendant may request access to the file, which must be granted to him within twelve months, with the exception of terrorist cases. The prosecution may still impose an additional period of six months, but then access will be automatic.
“And if elements of the file” leak “in the press, undermining his presumption of innocence, the accused will be able to access it immediately, unless he is the source of the” leaks ” “, We indicate to the ministry. A lesser evil for Me Maisonneuve. “When preliminary investigations concern people who are little known, even locally, everything goes very quickly to the media. And the defendant is sometimes the last to know what the justice accuses him of. “