Book: The two forms, ed. Amazon.
Paris, Monday, February 5, 2018
Copy :
President of the Republic /
Prime Minister
Minister of Justice / Minister
of the Interior / Minister of Economy and Finance
Presidents of Parliament /
Chairmen of Parliamentary Groups
President of the Court of
Appeal / Attorney General
President of the TGI / Attorney
General
REFLECTION ON THE ORDER OF
JUDICIAL PRIORITIES AND THE PLACE OF INDEMNITY IN THE LUHAKA CASE
1. Preamble
A year after the fact, the
media return to the so-called Theo case. During an arrest, Mr. Luhaka Théo was penetrated to the anus by
the telescopic baton of a police officer.
A sentence written on news.sfr
caught my attention: "If the damage suffered is irreversible, the police
risk a trial at the assizes, whether the rape is retained or not.”
If there is no rape, it is
because the penetration was accidental.
In other words, the arrest
being justified and the violent mastery of the person who opposes it being
right, if it turns out that the police officer did not commit any fault but
irreversible damage was caused accidentally to the citizen, the police officer directly involved and his colleagues risk prison.
This is no doubt intended to
strengthen national unity.
Thus, in order to make good the
damage suffered by a citizen by the manifestly excessive consequences of the
justified arrest he has provoked, the State has no other means than to destroy
its own agents or to return the administered to his loneliness.
Everyone is faced with an
impossible choice:
1- The police must take the
risk of losing their freedom or letting the thugs do so.
In a short time, they will leave their life or give up the land.
In a short time, they will leave their life or give up the land.
2- The citizens can not commit
mistakes without assuming the excessive risk of being destroyed.
2) - The decline
Incidentally, the Theo affair
brings us back to the 19th century. At that time, public order was a delegation of
the military order whose function is to create only winners and losers.
However, in the exercise of
public order, the public road police was precisely created by the Third
Republic, in the twentieth century, to replace military confrontations with
those of law.
3) - The losers
The public consequences are
disastrous.
As the judicial system presents
itself, the state and its institutions will be the big losers of this path.
They are not rogue police who
are accused. It is the police in his social assignment who
will be sentenced.
Everyone can understand that
the current legal system, judicial in this case, is incapable of restoring
public order.
It is based at the same time on the security of
the citizens and the primacy of the agents of the State in the exercise of the
public order.
4) - The continuation of
conflicts
It is remarkable that the only
issues of public debate, and probably judicial, are the position of each in the
penal process.
The whole procedure renews the
logic of the clash between the State and the populations designated by the
political groupings that claim to represent them.
From now on, these judicial
repetitions of the street scenes are regularly done to the detriment of the
agents of the State and for the benefit of the factious groups sheltered behind
the human suffering.
Judicial paths become an
accumulation of dislocations of the Public Power and an official recognition of
the primacy of the mafia in the exercise of public order.
Theo affair is a concentrate of
this masochism of the state. No doubt there are others.
5) - The lever
This announced defeat of the
state, through its personnel, can also be the occasion of a redefinition of the
judicial system to accommodate certain categories of dol.
To examine this part, I take
the facts and the procedures as presented to us by the media. I do not deal with qualifications, facts,
accusations, circumstances, etc.
The state has an important
leverage to allow justice to repair its faults certified by itself to citizens
and to judge serenely.
It's the judicial compensation.
This can not be replaced either
by field accommodation or the purchase of social peace at a high price.
a- These techniques allow to
arrive at the trial in "a relative serenity", according to the word
of the media.
b) The Luhaka and Traoré cases
show that the police and gendarmes are no longer able to discreetly manage the
consequences of this promiscuity.
It is from the place of
compensation in the judicial, public, that I examine the possibility of
reconfiguring the procedure to make it effective.
6) - The existing
Currently, in this case the
compensation is useless. It is only the late financial translation and at
the end of the chain of the penal process. She is entirely subordinate to her show.
In any case, the decision of
compensation and its amount, are the consequence of the conviction. They are not distinct.
This order of priorities
visibly imposed by the procedure is an obvious factor of disorder and makes it
uncontrollable. The machinery of the state turns against itself.
This is one of the major
obstacles to the social profitability of the procedure.
7) – Innovation
I have examined this potential
for changing the priorities of the procedure in various texts, including that
of 21 November 2017. See below.
On the occasion of the judicial
follow-up of a banking carambouille, the justice showed that the French law
allowed to be imaginative, and to be inspired by the American right, as for the
place of the compensation in the penal process.
In the Theo case, the
possibilities of innovation are all the greater as the plaintiff himself
declared "to pardon" his opponents, "in the name of God".
8) – Conclusion
It would be judicious to seize
the hand extended by this man to the French justice so that this one examines
this business in a different optics than the inverted repetition of the
confrontation of the slab of the city.
It is possible to seize this
opportunity to organize an experiment that would implement neither the Treasury
nor a procedural exception.
Marc SALOMONE
Paris, Tuesday, November 21,
2017
Copy :
President of the Republic
Prime Minister
Justice Ministry
Minister of Economy and
Finance
Presidents of Parliament /
Chairmen of Parliamentary Groups
President of the Court of
Appeal
Attorney General
President of the TGI
Prosecutor of the Republic
AMERICAN LAW AND INDEMNITY
1) - The introduction of
American law
The HSBC case is a cousin of
the procedure on which I draw the attention of the public authorities.
It establishes that the
French justice does not ignore the financial payment, whatever the title, fixed
by the procedure and independent of the trial.
The newspaper Le Monde,
15.11.17, under the pen of Anne MICHEL, presents the logic of this affair:
"Accused of laundering
tax fraud, the Swiss subsidiary of the British giant has signed an agreement
with the National Financial Office. This American transaction is a first in
France ...
"It's an American-style
court settlement, the first ever ever signed in France.
"The criminal agreement
unveiled on Tuesday, known as the Public Interest Judicial Convention (CJIP),
follows from the anti-corruption law of 9 December 2016, known as the Sapin 2
law, which is supposed to modernize and strengthen the judge's action against
cross-border financial crime.
"It allows justice to
obtain compensation for damage related to corruption or tax evasion, without
waiting for the outcome of a trial, by not recognizing guilt on the part of the
company suspected, but a mere acknowledgment of the facts.
"This type of
transaction, hitherto foreign to French law and poorly understood in France, is
in force in the United States. "
The newspaper insists on the
origin foreign to the country and the French law of this procedural
dissociation of the financial agreement and the trial.
The defect of this foreign
reference is to mechanically create the opposition of the proponents of
subordination to American law and of those who are thus led to define French
law in opposition to it.
However, it has the merit of
installing the possibility of this judicial practice in French law.
Part 1: Civil society
2) - Reflection in French
law
I propose an internal
reflection on the practices of French law.
This reflection could, for
example, result in neutralizing the judicial piracy procedures expressly
spoliation of European companies for the benefit of US companies allowed by US
law.
However, it is not these
extensions that catch my attention here but the world of the "little".
The leading cadres of the
state, including political parties, are convinced that they will manage to
ensure that nothing of their practices changes. It's their Creed.
In cases where the
"small" concerns the continuity of institutions, the questioning of
the police or the Army for example; this blissful inertia places law
enforcement forces in a situation of legal inferiority in their relations to
criminal delinquency and leads to paralysis of their actions.
I have already analyzed the
cases which oppose thugs to the police or the gendarmerie and which are now
almost systematically translated into justice to the detriment of the police
and to the benefit of the control of the population and the so-called local
politics. the mafia networks.
This subjection of the local
civil authorities to the community mafia networks or the moral crisis of
helplessness that the soldiers of Operation Sentinel are experiencing is so
developed that it becomes a state affair.
Two facts convoke our
thinking again.
3) - Acceptance of
Forgiveness
A singular fact reinforces
the practical value of this reflection: Mr. Theo Luhaka declares that he
forgives his alleged aggressors.
The public authorities
should be attentive to this new fact which should provoke reflection.
However, it does not bring
anything of the kind from the competent public authorities to allow the justice
system to allow the victims' fraud, the disturbances to public order, to defend
the police.
On November 27, 2017, nine
months after being subjected to a suspected violent penetration by a police
officer's baton during a lawful arrest, Mr. Theo Luhaka states "I am a
believer (...) I forgive them and I leave them in the hands of God. "
I take here the crude fact
without questioning its genesis.
This "Pardon"
makes it possible to postulate that Mr. Luhaka is not interested in any
vengeful procedure, any desire for personal confrontation with his judicial
counterpart.
Mr. Luhaka's approach allows
us to conceptualize another approach respectful of each other's evolution.
Indeed, Mr. Luhaka's
"pardon" breaks the link that may exist in the current procedure in
force between criminal procedure and the recognition of fraud.
It follows that it becomes
credible to consider a procedure which, in due course, distinguishes between
the two aspects of judicial action, the reparation due to the person and the
reparation due to society.
Mr. Luhaka renouncing to be
in a warlike use of the courtroom, the question of the reparations to which he
is entitled arises in terms of financial reparations.
He was injured and disabled
on the occasion of a police operation that did not have to put him at risk.
This loss is compensable
On the other hand, the
questioning of the subjectivity of objective facts, the personal responsibility
of the parties involved, is postponed to the criminal trial.
It follows that the case of
the victim and the facts is disjointed and partisan political mobilizations
lose their master card which is the identification of the procedure for the
judicial resuscitation of the virtually dead victim.
Mr. Luhaka's political
support has very well perceived this process of dissociation and the reworking
of the political field it entails.
This is why, the next day,
November 28, duly chapter, Mr. Luhaka brings a nuance commissioned about it.
In Bobigny
(Seine-Saint-Denis), before the Tribunal de Grande Instance (TGI), Theodore
Luhaka spoke at a support rally in his honor, at the call of the Collective
"Justice for Theo", before about 300 people gathered to protest
"on behalf of all victims of police violence".
He declares :
1- "God commands me to
forgive, so I must forgive.
2- "But that's
not why you have to forgive yourself. Even my family has not forgiven the
police, which is to say how much we have come back.
3- "We are all waiting
for justice firmly. "
The communist party has
therefore taken the measure of the new circumstances created by Mr. Luhaka's
"forgiveness". It makes provisions to justify the continuation of the
fight and hypertrophy the political content of the procedure.
4) - The refusal
It does not seem that the
representatives of the State have the same perception of the evolution of the
relations between the parties.
The qualified
representatives of the public authorities intend to ignore Mr. Luhaka's
"pardon" to the other party and continue as if nothing had happened.
Like the thugs and their
rightholders, the authorities are therefore passively led to trial.
Thanks to his blindness, the
state will be at fault. It will no longer be up to the magistrates to attack
the police under the amused gaze of the communitarians.
The community party that has
just renewed its commitment in this fight may also mention the rejection of
this "sorry".
By his rejection, he
installs the political confrontation in the courtroom instead of taking it out.
In this case, it is the
regular procedure that will artificially place the protagonists in
confrontation. It will indefinitely renew a confrontation that the judgment
will turn into resentment.
The current procedure
federates what in politics we call "dissatisfaction and discontent".
It does not precisely
isolate the specific case of "facts" and "victims". It
subordinates them to the dominant ideological and social environment that gives
its versions of the facts and organizes invasive solidarity with the
"victims".
The political demonstrations
of the year 2017 are otherwise exclusively, at least massively, organized in
the expectation of the presence of the victims, dead or alive, at the trials.
They prepare the
subordination of these to the memory or to the suffering of the victims.
In doing so, on the pretext
of police misconduct, real or alleged, they organize the public debate at the
foot of the portraits of thugs, killed or wounded by the police in the exercise
of their voyeuries, exhibited with the participation of senators and deputies.
French executives always
think they have the Police. But it is precisely the police who are judged at
the request of the thugs for having opposed them in the name of the state.
With this in mind, as
demonstrated by the case Bentounsi against Saboundjian, it is the camp of the
delinquents who directs today the public debate and in fine the judicial
debate.
5) - The instrument of
public order
This is so firstly because
the instruments for leading the public policy debate are fit for the past, not
the present.
This doubling made audible
by Mr. Luhaka's "forgiveness" is not just about this procedure.
If we accept to take it into
account, it becomes possible to join the so-called "Theo" case to
other foreign affairs.
It can lead to include Mr.
Luhaka in the civil and collective public experimentation of a new practice of
compensation and the reports of the litigants to the facts.
This is the case with surgical
accidents, the families of seamen drowned by the shipowner's fault, the
discoverers of the Corse Treasury, the injured car manufacturers, the Villemin
parents, and so on.
It seems more conducive to
disqualify the National Police, the gendarmerie, and legalize the antagonism
that the community parties want to institute between the French state and
populations defined by a supposed strangeness to the French population and by an
insoluble religious martyrology.
Part 2: The Army
6) - The repetition of the
same
Two soldiers die in training
service.
The current procedures
reproduce exactly the same scenario of judicial clash between the victims'
rights-holders and the Army.
In both cases each is
repeated in his role plays. The Army denies any responsibility for the fault,
the magistrates cover it, the victims who exhaust themselves in endless
procedures. France is ridiculous and seen as backward.
I come back here to the two
exemplary military cases.
7) - First case
The newspaper Le Canard
Enchaine, of Wednesday, November 15, p.5, in its judicial heading, "coup
de barre", publishes a report of hearing of Dominique Simonnot,
1- On May 19, 2017, 22
legionnaires from the 2nd Nîmes REI are doing a "cohesive exercise"
in canoeing.
They exceed the sign
"" Prohibited danger of death "at the dam Cumière two of their
capsized.
Two legionaries are drowned
as part of their military activities.
2- After six months of a
preliminary investigation by the prosecutor's office:
a- The immediate solution is
to postpone the responsibilities to the Civil Manager of the Leisure Site where
the operation took place.
The reason is that "the
sign announcing the danger was masked by the foliage".
On November 15, only this
manager is present at the Tribunal to answer the counts of
"manslaughter" and "endangering the life of others".
b- For the civil parties:
two widows are complainants, a Mongolian and an African.
c- No military leader was
questioned.
3- The lawyers argue that
there is no confrontation
a- A victim should not have
been the cause of ITT.
b- The instructions of
danger could not have been translated to these "foreigners".
c- The prosecution argues
that "the file is complete. The 20 legionaries were heard, the firemen and
the defendant too! A good administration of justice presupposes that it be
rendered within a reasonable time! ".
4- The faulty involvement of
the army appears so plausible to the Court of Reims that, contrary to the
opinion of the prosecution, it refers the file "to the instruction".
This only happens in 3% of cases.
As one lawyer puts it,
"Everyone here loves the Legion and the Army."
8) - Second case
This new case reproduces so
many others.
See: The Enchaine Duck of
July 12, 2017, p4, "Couac" publishes an article: "Bad
fall".
On August 5, 2014, Mr.
Hugues, 23 years old, volunteers for the 1st regiment of the Cugnaux parachute
train, making his 134th jump.
The parachute does not open.
Two years of investigation
to declare the Army neither responsible nor guilty.
The military provident fund
and aeronautics refuse to compensate the family.
The minutes of the gendarmes
concluded that the Army was not responsible.
The Public Prosecutor of the
TGI of Toulouse classifies the complaint without further action.
Reason:
"Non-Characteristic Offense".
The Minister of Defense, Ms.
Goulard, ordered: "The opening of a complementary study to ensure that the
response obtained was consistent".
Civil parties can also say
"Everyone here loves the Legion and the Army".
9) - The two martyrs
Simple accidents become for
the rights holders of the victims of the confrontation with an Army that their
son or their husband wanted to serve.
Ordinary persons must follow
a procedure the whole operation of which is subordinated to archaic forms of
the legitimate preservation of the military institution.
They are twice crushed and
the Army is twice lowered publicly.
Every fault of the Army
becomes for its victims a calvary and for the Army a relational concern.
In these days, this
indefinite renewal of the Army's reputation for ingratitude towards its
soldiers tarnishes its good reputation, so hard-won, among the population.
Part 4: Commentary
10) - The inter-se
In the name of thugs, the
police and the gendarmerie are publicly disqualified with no other prospect
than to be even more so.
The Army loses in
information the public credit which it acquired during its fights against the
jihadism,
It seems that the important
thing is that nothing changes and dominates the inter-self.
A report written by Marie
Christine Lepetit, Inspector of Finance, explicitly named "the
inter-house" as responsible for the invalidation of a tax by the
Constitutional Council and assigns him a unit of account: ten billion euros.
This "entre-soi"
also impresses its brand in the functioning of the public administration by
brooding the increasingly open confrontation between the magistracy and the
police, under the mocking gaze of thugs who have become arbiters of elegance.
It would not be enough for
justice to be no longer obliged to harm the victims to speak the law and
guarantee the institutions their place.
Marc SALOMONE
