lundi, février 05, 2018

05.02.18, compensation 15, theo, police, procedure, justice, sitting court

/ madic50.blogspot.com
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Paris, Monday, February 5, 2018

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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.
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



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Paris, Tuesday, November 21, 2017

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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





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