blog:
madic50.blogspot.com / Book: The two forms, ed. Amazon
salomone.marc@neuf.fr
Paris, Monday, July 16, 2018
REFLECTION ON THE CONFUSION ORGANIZED BY THE PROCEDURE BETWEEN POSSIBLE CRIMINAL MISCONDUCT AND THE EXCESSIVE CONSEQUENCES OF THE INTERVENTION OF STATE AGENTS AND ON THE ROLE OF STRATEGIC COMPENSATION
1) - The facts
On Tuesday, July 3, 2018, in Nantes, a criminal from the Isle of France wanted by the law is the object of a control for a violation of the wearing of the safety belt.
He testifies to his criminal practice by producing a false name and driving a vehicle himself,
During this check, he is killed by the shot of a policeman.
He then opens a legal action.
It is aimed at the clash between a citizen recognized as criminal during the control and an agent of the State in the exercise of his functions.
2) - The confusion
Whatever the fate of this judicial action, it appears to everyone that it is based on confusion and that it can only disturb it.
This confusion stems from judicial continuity organized by the procedure of legal action and its excessive consequences.
For example, the death of a man exceeds the capacity for action of an identity check to which he is subjected.
This is acknowledged by the police officer concerned when he says that it is an accident.
The disorders that accompany this death do not come from this confusion but it allows the factious guided by associations related to foreign powers to integrate into the procedure and to print their mark.
3) - The ECHR
The legal incongruity of this confusion was reported on 31 May 2018 by the ECHR.
It condemned France to pay 6.5 million euros to a man who became severely disabled after his arrest by agents of the SNCF and police in 2004, RER station in Mitry-Mory (77).
As a result, it decides that it is excessive for a passenger to be made quadriplegic by ticket control. Even if he was wrong.
By this decision, the ECHR draws a distinction in law between the correctness of an action by the authorities and the unforeseen consequences thereof.
Whether this first action is legal or not, the consequences out of proportion to the regular action in question are qualified as a singular fault.
4) - French justice
The procedure commits the French magistrates to see in these facts only debate based on the questioning of the initial reasons for this clash between two parties.
The justice then characterizes a damage suffered by a citizen during an administrative action as an element subordinate to the examination of the legality of the intervention.
The damage is recognized as faulty if the action was.
Which implies to imperatively recognize faulty action to be able to take into account the damage. This regardless of the quality of the action.
5) - The peculiarity of the damage
In this logic, personal injury is not distinct from the criminal offense and the procedure that determines it, it can not be the subject of a differential treatment.
Victims are thus forced to follow the whole of a penal process that essentially does not concern them in the hope of deriving a residue of satisfaction called justice and a financial sock juice called indemnities.
The aftermath of a trial is often hard to live with.
6) - European justice
Distinguishing from this uniqueness of the facts, the ECHR saw a fault in the fact that an arrest by officers of the SNCF assisted by police officers lead to the motor disability of the offender.
salomone.marc@neuf.fr
Paris, Monday, July 16, 2018
REFLECTION ON THE CONFUSION ORGANIZED BY THE PROCEDURE BETWEEN POSSIBLE CRIMINAL MISCONDUCT AND THE EXCESSIVE CONSEQUENCES OF THE INTERVENTION OF STATE AGENTS AND ON THE ROLE OF STRATEGIC COMPENSATION
1) - The facts
On Tuesday, July 3, 2018, in Nantes, a criminal from the Isle of France wanted by the law is the object of a control for a violation of the wearing of the safety belt.
He testifies to his criminal practice by producing a false name and driving a vehicle himself,
During this check, he is killed by the shot of a policeman.
He then opens a legal action.
It is aimed at the clash between a citizen recognized as criminal during the control and an agent of the State in the exercise of his functions.
2) - The confusion
Whatever the fate of this judicial action, it appears to everyone that it is based on confusion and that it can only disturb it.
This confusion stems from judicial continuity organized by the procedure of legal action and its excessive consequences.
For example, the death of a man exceeds the capacity for action of an identity check to which he is subjected.
This is acknowledged by the police officer concerned when he says that it is an accident.
The disorders that accompany this death do not come from this confusion but it allows the factious guided by associations related to foreign powers to integrate into the procedure and to print their mark.
3) - The ECHR
The legal incongruity of this confusion was reported on 31 May 2018 by the ECHR.
It condemned France to pay 6.5 million euros to a man who became severely disabled after his arrest by agents of the SNCF and police in 2004, RER station in Mitry-Mory (77).
As a result, it decides that it is excessive for a passenger to be made quadriplegic by ticket control. Even if he was wrong.
By this decision, the ECHR draws a distinction in law between the correctness of an action by the authorities and the unforeseen consequences thereof.
Whether this first action is legal or not, the consequences out of proportion to the regular action in question are qualified as a singular fault.
4) - French justice
The procedure commits the French magistrates to see in these facts only debate based on the questioning of the initial reasons for this clash between two parties.
The justice then characterizes a damage suffered by a citizen during an administrative action as an element subordinate to the examination of the legality of the intervention.
The damage is recognized as faulty if the action was.
Which implies to imperatively recognize faulty action to be able to take into account the damage. This regardless of the quality of the action.
5) - The peculiarity of the damage
In this logic, personal injury is not distinct from the criminal offense and the procedure that determines it, it can not be the subject of a differential treatment.
Victims are thus forced to follow the whole of a penal process that essentially does not concern them in the hope of deriving a residue of satisfaction called justice and a financial sock juice called indemnities.
The aftermath of a trial is often hard to live with.
6) - European justice
Distinguishing from this uniqueness of the facts, the ECHR saw a fault in the fact that an arrest by officers of the SNCF assisted by police officers lead to the motor disability of the offender.
This
epilogue is declared legally impossible.
European justice then recognizes the damage as a judicial fact of full right creator of procedure and independent of the qualification of the administrative action that provokes it.
The ECHR thus recognizes in law a distinction between the criminal questioning of an administrative action and the characterization of a fault for the excessive consequences of this action.
From now on, a recognized judicial authority declares that it is legally unfounded to confuse in the same procedure realities that can not be included.
By condemning the French State to pay a private individual a compensatory sum reserved in France for commercial affairs, setting the bar at an American height, the ECHR calls on the French public authorities and confronts them with the obsolescence of some of their practices judicial and administrative.
7) - The compensation
The nodal point of this obsolescence is the relationship of the judicial process to compensation and its ability to make it an equal and distinct procedure.
a- The criminal offense concerns society first. It is subject to investigation, procedure, trial, verdict, conviction.
b- The abusive consequence concerns first of all the daily life of the people. It is a matter of recognition of their existence and compensation.
On Tuesday, August 22, 2017, I published on my blog Madic50.blogspot.com, a text entitled "Reflection on Strategic Compensation".
I opened the reflection on concrete cases as well:
"Compensation is compensation for damage. This is how it is treated commonly and this perception of its function assigns it its place in the judicial proceedings.
It comes after the recognition of the criminal faults from which it results.
There are, however, circumstances in which compensation must be perceived not as the subordinate reparative consequence of a judgment but as a primary vector of public and judicial action.
That's what I call strategic compensation.
Its first characteristic is to be governed by justice and laws.
The second is to create a capital.
The third is not to necessarily be spoilers of the Treasury or corporate treasuries. "
In France, the compensation is clearly dependent on the concern, quite laudable, that the Justice and Finance public funds.
8) - The report
In the absence of this distinction and a rational control of compensation, justice as well as litigants are locked in a procedure whose only effect is to divide the French when the judicial action is to bring them together.
To make this distinction, it suffices to consider a form of proportionality between action and its human consequences.
To judge excessive consequences, there is therefore no need for anything other than the finding of disproportionality.
This finding is certainly a matter of investigation and judicial debate, but it is distinct from the establishment of the criminal offense.
It can be done quickly and independently of the complexity of the criminal issues.
For example, once established that it was only to control an isolated disruptor or to control an unarmed criminal sitting in his car; it becomes clear that the fault of excess of consequence is constituted by the damage of one anus for the one and the death for the other.
Similarly, in another register, if a factory explodes, the criminal issues are complex. What is simple is the distortion caused by this factory to the surrounding villagers. It is up to the entrepreneur to prove that the villagers have deliberately cracked their walls that day and that his business has nothing to do with it. Judicial notice of "excessive consequences" does not last for seventeen years.
During a judicial assignment distinct from that of the criminal procedure, the victim or his assigns apply for recognition of the wrong done to them and for compensation.
Often, the procedural confusion of public action and personal injury is for the litigants the disaster of their life.
European justice then recognizes the damage as a judicial fact of full right creator of procedure and independent of the qualification of the administrative action that provokes it.
The ECHR thus recognizes in law a distinction between the criminal questioning of an administrative action and the characterization of a fault for the excessive consequences of this action.
From now on, a recognized judicial authority declares that it is legally unfounded to confuse in the same procedure realities that can not be included.
By condemning the French State to pay a private individual a compensatory sum reserved in France for commercial affairs, setting the bar at an American height, the ECHR calls on the French public authorities and confronts them with the obsolescence of some of their practices judicial and administrative.
7) - The compensation
The nodal point of this obsolescence is the relationship of the judicial process to compensation and its ability to make it an equal and distinct procedure.
a- The criminal offense concerns society first. It is subject to investigation, procedure, trial, verdict, conviction.
b- The abusive consequence concerns first of all the daily life of the people. It is a matter of recognition of their existence and compensation.
On Tuesday, August 22, 2017, I published on my blog Madic50.blogspot.com, a text entitled "Reflection on Strategic Compensation".
I opened the reflection on concrete cases as well:
"Compensation is compensation for damage. This is how it is treated commonly and this perception of its function assigns it its place in the judicial proceedings.
It comes after the recognition of the criminal faults from which it results.
There are, however, circumstances in which compensation must be perceived not as the subordinate reparative consequence of a judgment but as a primary vector of public and judicial action.
That's what I call strategic compensation.
Its first characteristic is to be governed by justice and laws.
The second is to create a capital.
The third is not to necessarily be spoilers of the Treasury or corporate treasuries. "
In France, the compensation is clearly dependent on the concern, quite laudable, that the Justice and Finance public funds.
8) - The report
In the absence of this distinction and a rational control of compensation, justice as well as litigants are locked in a procedure whose only effect is to divide the French when the judicial action is to bring them together.
To make this distinction, it suffices to consider a form of proportionality between action and its human consequences.
To judge excessive consequences, there is therefore no need for anything other than the finding of disproportionality.
This finding is certainly a matter of investigation and judicial debate, but it is distinct from the establishment of the criminal offense.
It can be done quickly and independently of the complexity of the criminal issues.
For example, once established that it was only to control an isolated disruptor or to control an unarmed criminal sitting in his car; it becomes clear that the fault of excess of consequence is constituted by the damage of one anus for the one and the death for the other.
Similarly, in another register, if a factory explodes, the criminal issues are complex. What is simple is the distortion caused by this factory to the surrounding villagers. It is up to the entrepreneur to prove that the villagers have deliberately cracked their walls that day and that his business has nothing to do with it. Judicial notice of "excessive consequences" does not last for seventeen years.
During a judicial assignment distinct from that of the criminal procedure, the victim or his assigns apply for recognition of the wrong done to them and for compensation.
Often, the procedural confusion of public action and personal injury is for the litigants the disaster of their life.
9)
- The role recomposition
The dissociation of the criminal action for the illegality of an administrative action and the action indemnity aimed at the excessive consequences of this one changes the device of public order, that is to say the balance of power induced by the procedure.
The victim or his beneficiaries having been compensated, they can leave the criminal procedure and therefore no one can legally claim from them.
From there, the place of everyone who wants to be actors of the criminal procedure changes.
1- The victims
Victims or rights holders who want to join this process can no longer base their intervention on a privilege of representation of their personal suffering or that of their victimized parent. It is no longer possible to cry at the bar.
They become part of a judicial debate and not considerations of humanism.
In particular, it must be maintained that the son, the brother, the parent, had the right to take the risk of accidentally killing with a weapon but that the police officer confronted by a criminal does not have the same right to the accident.
2- The Avant-gardes
The various political groups, the Avant-gardes, like the people who recognize themselves in them, no longer benefit from five to ten years of procedure to organize their action within it by using the victim as a flag.
Their fight can no longer be based on the proclamation of emotional solidarity with the victim on the grounds that justice wanted to forget it. Indeed, it is precisely as victims that they will have been recognized by the Nation.
All are then brought to express themselves in their own name and to positively expose the logic of their fight.
3- The elected
The confusion of the criminal debate with the excessive consequences allows a mobilization of the elected officials from the public ambiguities of the body of the victim.
Virtually no citizen can boast of mobilizing as many local elected representatives as deputies and senators as the convicts, sadistic and perverse criminals who have assaulted police officers to force them to recognize the legal independence of a territory where they live. officiate and lead them to recognize that they broke into it.
With the end of the confusion, the deputies who parade under the portraits of dead thugs in the name of the memory of martyrs that justice would like to forget could no longer hide behind the argument of the "young", the "kid", wounded or dead.
They would have to explain that they are there to support that a thug in the performance of his duties can legitimately impose his law on the police or the gendarmerie.
They would pass from the demagogy of guts to the politics of the head; those of their constituents for example.
4- The magistrates
The justice is then relieved of the weight of a mass political debate which returns in the sector of the public debate which is its place of democratic expression.
The judicial debate becomes the examination of the justification of an arrest, of the use of the force on this occasion, of the respect of the professional obligations.
It would no longer be possible to mask the organization of an administrative, communitarian separation of the French by the hysterisation of the circumstantial consequences of the maintenance of order.
The interests of the persons concerned being respected; it becomes possible to calmly examine the interests of the city and the citizens.
10) - The aggiornamento
In the immediate future, this requires a cultural change on the part of French leaders in terms of penal compensation.
The ECHR has usefully recalled the need for this compensatory aggiornamento by fixing the compensation at a level unimaginable for French executives.
There is also a need to change the economic model of compensation. It can neither burden the public treasury nor, in other cases, corporate treasuries.
In other words, the strategic compensation can not answer the heartbreaking cry of many victims: They will pay, I will ruin them!
If French civil society were able to carry these reforms we would know it.
The dissociation of the criminal action for the illegality of an administrative action and the action indemnity aimed at the excessive consequences of this one changes the device of public order, that is to say the balance of power induced by the procedure.
The victim or his beneficiaries having been compensated, they can leave the criminal procedure and therefore no one can legally claim from them.
From there, the place of everyone who wants to be actors of the criminal procedure changes.
1- The victims
Victims or rights holders who want to join this process can no longer base their intervention on a privilege of representation of their personal suffering or that of their victimized parent. It is no longer possible to cry at the bar.
They become part of a judicial debate and not considerations of humanism.
In particular, it must be maintained that the son, the brother, the parent, had the right to take the risk of accidentally killing with a weapon but that the police officer confronted by a criminal does not have the same right to the accident.
2- The Avant-gardes
The various political groups, the Avant-gardes, like the people who recognize themselves in them, no longer benefit from five to ten years of procedure to organize their action within it by using the victim as a flag.
Their fight can no longer be based on the proclamation of emotional solidarity with the victim on the grounds that justice wanted to forget it. Indeed, it is precisely as victims that they will have been recognized by the Nation.
All are then brought to express themselves in their own name and to positively expose the logic of their fight.
3- The elected
The confusion of the criminal debate with the excessive consequences allows a mobilization of the elected officials from the public ambiguities of the body of the victim.
Virtually no citizen can boast of mobilizing as many local elected representatives as deputies and senators as the convicts, sadistic and perverse criminals who have assaulted police officers to force them to recognize the legal independence of a territory where they live. officiate and lead them to recognize that they broke into it.
With the end of the confusion, the deputies who parade under the portraits of dead thugs in the name of the memory of martyrs that justice would like to forget could no longer hide behind the argument of the "young", the "kid", wounded or dead.
They would have to explain that they are there to support that a thug in the performance of his duties can legitimately impose his law on the police or the gendarmerie.
They would pass from the demagogy of guts to the politics of the head; those of their constituents for example.
4- The magistrates
The justice is then relieved of the weight of a mass political debate which returns in the sector of the public debate which is its place of democratic expression.
The judicial debate becomes the examination of the justification of an arrest, of the use of the force on this occasion, of the respect of the professional obligations.
It would no longer be possible to mask the organization of an administrative, communitarian separation of the French by the hysterisation of the circumstantial consequences of the maintenance of order.
The interests of the persons concerned being respected; it becomes possible to calmly examine the interests of the city and the citizens.
10) - The aggiornamento
In the immediate future, this requires a cultural change on the part of French leaders in terms of penal compensation.
The ECHR has usefully recalled the need for this compensatory aggiornamento by fixing the compensation at a level unimaginable for French executives.
There is also a need to change the economic model of compensation. It can neither burden the public treasury nor, in other cases, corporate treasuries.
In other words, the strategic compensation can not answer the heartbreaking cry of many victims: They will pay, I will ruin them!
If French civil society were able to carry these reforms we would know it.
Today,
only the Head of State could provoke this reflection and initiate the
preparatory experimentation of ad hoc parliamentary work.
11) - Conclusion
The success of this confusion is to transmit to justice the entire examination of the civil conflicts of French society.
a- The police had their hour of glory to affirm the administrative continuity of the territory.
b- Today, they are indicted and sentenced for the same administrative policy.
c- The magistrates take over.
But they do it now to negotiate the administrative separation of the territories.
It may therefore be of little use to ask a political system to assume unitary responsibilities which may already be meaningless for it.
In the case where the cards are already distributed, this reflection will be useless.
But it is always possible to establish that what exists is a producer or catalyst of troubles and to give the answers to the question asked.
Marc SALOMONE
11) - Conclusion
The success of this confusion is to transmit to justice the entire examination of the civil conflicts of French society.
a- The police had their hour of glory to affirm the administrative continuity of the territory.
b- Today, they are indicted and sentenced for the same administrative policy.
c- The magistrates take over.
But they do it now to negotiate the administrative separation of the territories.
It may therefore be of little use to ask a political system to assume unitary responsibilities which may already be meaningless for it.
In the case where the cards are already distributed, this reflection will be useless.
But it is always possible to establish that what exists is a producer or catalyst of troubles and to give the answers to the question asked.
Marc SALOMONE
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