blog:
madic50.blogspot.com / Book: The Two forms, ed. Amazon
Paris,
Friday, April 5, 2019
CONTRIBUTION
(15) TO THE NATIONAL DEBATE WISHED BY THE PRESIDENT OF THE REPUBLIC
IN 2019. COMPENSATION (29) AND EXCESSIVE CONSEQUENCES OF POLICE
INTERVENTIONS, such as 23 March 2019 in Nice. (Continuation of the
reflection n ° 28 of March 5th, 2019, cf: madic50)
In
previous reflections on the political and judicial use of
compensation (see: February 1, 2019), I develop the conception of a
new judicial procedure and I propose experimentation.
The
Geneviève Legay case is a crucial experience as to the obsolescence
of the procedure in force.
1)
- The facts
On
Saturday, March 23, 2019, at a forbidden gathering, this 73-year-old
woman collapses in the scramble of a dispersal of the crowd by the
police.
She
is seriously injured. If his life is no longer in danger, his health
is seriously compromised. The twist that is made to him will be
permanent.
1-
Denial
At
first the public prosecutor, whose opinion is that of the Head of
State, denies the existence of a meeting of the protester and a
police officer.
a-
On Saturday, March 23, the same day, the President of the Republic
ensures that "this lady has not been in contact with the
police".
b-
On Monday, March 25th, the public prosecutor, Jean-Michel Prêtre,
asserts in his functions of magistrate: "she had" no
contact with a security agent ".
2-
The revelation
Four
days later, on Friday, March 29, the prosecutor of the republic says
exactly the opposite "after viewing new images, including video
surveillance, and their analysis pixel by pixel."
It
designates the alleged culprit. It is a policeman having acted on his
own initiative.
2)
- The production of the alleged culprit
Since
it is no longer possible to dissociate the police from fraud, the
prosecutor asks to designate an alleged culprit.
He
determines it in two ways:
1-
By the facts:
"A
police officer isolated and without shield had spread his arm to his
right [Geneviève] Legay, causing the fall of the latter. This
policeman who had been heard earlier this week in the course of the
investigation rectified this [Friday] morning's testimony by
admitting that the person he had removed from his path was not a man
like him. had originally declared.
2-
By law
"The
action of dispersion of the manifestation executed according to the
orders of the hierarchy, using the force, is a perfectly legitimate
action, By cons, what can pose problem, it is the individual action
of this policeman. His gesture must be interpreted. Does it fit well
in a normal setting? "
3)
- Administrative fracturing
In
both cases, this device organizes a fracturing of the administrative
unit of the Police and ultimately of the State.
a-
This qualification associates the hierarchy with the "legitimate
action". It is therefore automatically put out of reach of
justice.
b-
At the same time, it reports on an executing policeman the entirety
of the presumed fault.
But
this policeman obeyed the orders of the hierarchy. If he shoved this
lady, it is also because the order of dispersion commanded a violent,
massive action, without distinction with regard to the individual
protesters. Mrs. Legay was dismissed with the usual brutality that
these charging operations induce.
This
implies that the judicial path of this police officer will create
disturbances in the exercise of law and order.
The
repetition of these fractures will put into question the bonds of
trust between the executing police and their hierarchy.
Non-commissioned
officers will consider whether the application of the statutory,
statutory methods corresponding to such an order will be declared
lawful or will it be capable of being "interpreted"; in
other words criminalized and judiciarized.
4)
- Multiple consequences
1-
Change of status
The
current procedure therefore leads the State to consider the police as
external to the prerogatives of the state; especially that of the
monopoly of violence.
The
police find themselves stripped of any particular authority. They are
reduced to the rank of ordinary litigants.
They
can only practice this violence by order and not on their own. Their
own repressive initiatives are referred to their defects and their
personal disabilities.
As
such, the actual status of police officers slips to that of employees
of private agencies. This prepares the rise of these.
2-
From exceptional fault to permanent status
For
the public prosecutor, this fracking of the administrative unit is
probably a simple practical distinction to limit the consequences of
the investigation he ordered the opening.
In
the conjuncture, the principle separation of the hierarchy and the
performer implies that the regal nudity of the latter does not occur
at the moment of the presumed fault. It is pre-existing. It is
continuous. It is "action" that is regal, not the
performer.
The
police are not in front of new relations with the litigants. They are
facing a change of status vis-à-vis certain networks of litigants
with whom they must negotiate the legality of their action.
5)
- The plurality of sources of law
It
is not professional misconduct that is judged. These are violations
of legal territories.
This
statutory evolution formalizes the recognition of new actors of
public order.
The
judicial and functional disqualification of executing police goes
hand in hand with the de facto legalization of new policymakers.
a-
On the one hand, the hierarchy gives orders to its implementers.
b-
On the other hand, they learn, by the lawsuits that indict them, that
the execution of these orders must be negotiated with the persons or
groups concerned.
In
practice, judicial qualifications establish, codify, the presence of
new networks of sovereignty.
The
police are summoned to be the executors of several sovereign sources
of law.
6)
- The subversive circuits
The
obsolescence of the procedure gives the policemen of the rank to the
factious offensive of the subversive groups. Those whose government
established the existence by saying, on December 8, 2018, that they
wanted to overthrow the Republic.
The
Legay case is served to the public as a political cover. She has no
one behind her.
The
installed subversive circuits that present themselves for the moment
as simple defenders of the martyrs have understood that the procedure
in progress enables them to control, limit, the action of the police
by leading to the sacrifice, voluntary or inspired, of the copies of
this that Bonaparte called "butcher's meat".
The
agents of the State become places of negotiation between the State
and the groups which aspire not only to be part of it but to the
recognition of the legality which is their own.
The
procedure has become one of the gateways to manipulations of the
state by the forces for the moment still external to the
institutions.
1-
The victim and his fraud are then a flag and not only a person and a
damage.
2-
The civil organizations that support it defend the victim at least as
much by sympathy as to mobilize against the state.
The
legal and media case Legay is the functioning of the logic of
disqualification of the place of the police of monopoly holder of the
legal violence. This leads to the questioning of their priority as
regards the assessment of the modalities of its use.
7)
- The mentally handicapped
It
is in this perspective that the mentally handicapped have become
places of negotiation between public authorities and subversive or
politicized common rights.
Sometimes,
the subversives launch authentic mental patients to the assault, as
to the Eiffel Tower.
Sometimes,
20-year-old jihadists, wanting to massacre schoolchildren, let them
know from the outset that they are psychologically disturbed.
In
both cases, it is clear that at least the authorities agree to
exclude the ramifications of their research.
The
use of the mentally ill as places of negotiation in the installation
of the subversive crapulerie does not stop there. The law was even
set up so that the mentally ill could go to prison in place of their
direct or indirect sponsors. 30% of prisoners are mentally disabled.
What constitutes a crime.
8)
- The legal disorder
Except
for wanting to install a plurality of state sovereignties, as in
Lebanon, it does not seem possible that these legal slippages last
without going to face major political problems in the functioning of
the State.
Magistrates
can not continue to ignore that behind the demand to see the agents
of the state judged as ordinary justiciables, there is the will to
suppress the indivisibility of the state in favor of the sharing of
the definition and the exercise of public authorities; if only
territorially.
This
mechanical transport of disorder in the order apparatuses in the name
of the principles of legality indicates that something is not working
in the procedure.
The
subjugation of state agents to the constraints of an inadequate,
obsolete procedure highlights the archaism of the rigidity of the
latter.
Magistrates
must therefore have procedures that separate victims on the one hand,
and subversive lobbies on the other, and leave judges to render
justice to everyone in a calm and equal manner.
This
procedure is intended to remove criminal facts attributed to police
officers from various types of permanent public mobilizations against
the police institution.
9)
- The mobility of law
Today,
in these cases, the procedure is itself a factor of disorder.
This
procedure postpones judicial decisions until later. This is the time
it takes subversives to mobilize and impose their media truth and
moral evidence.
The
state needs judicial practices that ensure public order instead of
being vectors of unrest within it.
The
litigants also have the right to a certain mobility of the right.
The
procedure must come to distinguish between the consequences of the
acts according to whether they are consecutive or excessive.
If
it is a fraud following the act, foreseeable because of the act, the
procedure in force applies.
If
it concerns the excessive consequences of a legitimate act, of the
regular exercise of the profession, of a legal initiative, the
magistrates must have a completed procedure.
Once
the circumstance of excessive consequence is recognized, the public
prosecutor must be able to separate the compensation from the
criminal proceedings.
The
compensation must be first, capitalistic and not burden the Public
Treasury.
Therefore,
the criminal action examines the alleged wrongdoing of the state
agent no longer based on the exceptional twist that has been brought
to the public but because of the professional criteria of the
commission of acts.
A
necessary act leading to the death of an administered person is not
necessarily at fault, an arrested person does not necessarily have to
suffer other consequences than those of his arrest, etc.
a-
In these cases, the victim or his / her rights-holders do not have to
wait for the penal judgment of the acts committed so that the justice
appreciates the excessive consequences of these.
b)
Except for wanting to irritate the parts of the trial, which provokes
the current procedure, the civil party does not have to wait several
years before the attribution of the compensation to which these
excessive consequences entitle him.
c-
The Defense does not have to suffer the coincidence of the
circumstances and the necessities of the law.
The
criminal investigation and the sequencing of the trials can thus last
the professionally necessary time without harming the victim.
What
hinders this evolution of the procedure is that it breaks the link
between the trial and the feelings. The victim is no longer a flag to
plant during the trial in the heart of the state's administration.
The
study of this reform and its experimentation, with a view to
legislative action, would have their place in the conclusions of the
"great debate".
Marc
SALOMONE
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