blog: madic50.blogspot.com / Book: The two forms, ed. Amazon
Paris, Tuesday, November 19, 2019
CONTRIBUTION (37) TO THE NATIONAL DEBATE WISHED BY THE PRESIDENT OF THE REPUBLIC IN 2019.
INDEMNIFICATION AND THE CRIMINAL IN JUDICIAL PROCEEDINGS. (36) (Continuation of reflection n ° 35 of Tuesday, August 6, 2019 and previous, see: madic50.blogspot.com)
REFLECTION ON THE ROLE OF THE PRIMACY OF THE CRIMINAL IN THE PENETRATION OF FACTILITIES IN THE STATE AND IN THE SUBORDINATION OF JUSTICE TO THEIR POLICIES;
(Continued contribution Thursday, October 31, 2019 on "The positivity of terrorism", see: madic50.blogspot.com)
NECESSITY AND EMERGENCY TO SEPARATE THE PENAL INDEMNITY
1) - Collateral damage
On January 12, 2019, in Strasbourg, for Act IX demonstrations of yellow vests, Lilian, 15, is injured in the face by a flashball shot.
This young man will probably be handicapped. It is conceivable that he remains traumatized as much with regard to the police as of the street.
a- The police announce first that the teenager was demonstrating. The mother complains against this assertion.
b- The hypothesis of Lilian's participation in the event is abandoned.
c- On November 7, the family learns that the file is closed.
d- The reason is that the shooter can not be identified personally although there are only three LBD shooters.
So, justice recognizes explicitly that this man was not of the demonstration and that he was well touched by a shot from the police, ie from the State.
This teenager is typically what the media calls "collateral damage" to legal repression. It is in fact through the official action of the State, justified or not, that this man has been mutilated or has lost part of his faculties.
2) - Responsibilities of the State
There is no criminal fault on the part of the police. On the other hand, there is a responsibility of the State for the damage caused to this man by this legal action.
By identifying the legal recognition of a fault to a penal qualification, the procedure in progress can only erase Lilian from the number of beneficiaries of the reparations.
The exclusion of criminal proceedings leads to the exclusion of compensation.
The direct effect of this procedure is twofold:
1- The state is engaged in palinodies (such as the impossibility of formally recognizing the shooter, the long duration of investigations, etc.) to preserve the ability of officials to quell disorders.
2- It prohibits the state from assuming its own responsibility for "collateral damage".
The procedure places the state in a paradoxical and disqualifying situation:
1- He has legal instruments to recognize his responsibilities in the destruction of shops and street furniture by thugs.
2- He is prevented by law from recognizing his own responsibilities towards humans.
3- So:
a- Saturday, November 16, after the partial destruction of the stele of Marshal June, the President of the Republic orders that this monument be "repaired and rebuilt as soon as possible."
b- At the same time, Lilian is shelved from any "reparation" coming from the State.
The procedure renders the state incapable of noticing the casualties and by doing so it renders it unfair.
3) - The effects
This injustice accompanies the delegitimation of the public authorities; the questioning of their evidence.
Public authority seems to be partially changing sides or at least sharing.
This shift is summarized by the Deputy Jean-Luc Mélanchon, November 16, 2019, by a sliding game of words:
1- "It's no longer Republican police.
2- Just a government militia.
3- It is this militia that causes disorder. "
This is the legitimization of the factious slogan: No justice, no peace!
If justice does not repress the detractors of police or gendarmerie disorders, the factious civilians who call themselves the people are entitled to defend themselves by responding as it should to this war policy.
The procedure installs this discussion in the courts. It has become the debate of jurisprudence.
now:
a- The only serious political outlet of the so-called yellow jackets is the judicial challenge of hundreds of police officers.
b- The only public debate is about the number of people who will be brought to justice and the number of convicts.
The majority of commentators are righteous to maintain the balance of justice between the factious and the police.
4) - The legalization of the factious
However, we are not in the case of an exit of dictatorship and purifications that accompany it. The condemnation of the police is in this case the honor found of the resistance fighters.
There, we are in the criminalization of police and gendarmes who opposed factieux.
The latter can now use the legitimate or accidental consequences of the repression of their criminal actions to claim to modify the definition and exercise of the public authorities.
The factious are the people and the police are the illegitimate weapon of the oppressors. Power must change hands or at least share.
Thus, by this procedure of obligation of the passage by the penal qualification, the State offers a boulevard to the factieux to penetrate the procedure and to impose their policies to justice.
The judicial path becomes the place of physical or moral gathering of the factious to mobilize in the name of the martyr of the demonstrators, the horror of the public repressive action, the inhumanity of the legal Power.
At the same time, it leads to the criminalization of the action of the police. Legal repression gradually becomes a specific legal tolerance and the legality of its exercise is defined first of all by the consent of repressed civilians.
This is a breach of equality in French law since this case law obviously can not apply to all civilians involved in the famous "police violence".
The procedure becomes unknowingly a vehicle of chaos. The state can not remedy this because the action of the factious is included in the functioning of the law.
Thus, during the massacre of the prefecture, October 2, 2019, has it been said by commentators that the state can not afford to protect against low-level Islamist penetration because it falls under in the professional circuits of law.
5) - The separation of the indemnity and the penal
A reflection on the "reparation" of damage caused by the agents of the State in the regular exercise of their functions would allow to see things differently.
It has become a necessity except to entrust the control of the procedure to the factieux.
The separation of compensation and penal qualification would allow the state to take the initiative in this battlefield of a court.
This separation already exists in factual logics:
a- In the Erika case, polluted coastal populations were legally wrong and factually wrong.
There was therefore an agreement on the compensation of the plaintiffs and an acquittal of the criminal firms.
b- In the Servier case, known as the "Médiator" case, the government charged the company with the implementation of massive compensation and seems dignified.
But these devices are circumstantial derogations from the procedure in force.
It is necessary to define a legal and procedural separation of the two legal entities.
This evolution of the procedure would offer the public another perspective than solidarity with the factious whose suffering is photogenic and the disorganization of the police.
This reform would allow a presentable compensation. While today, frequently, it does not cover the initial damage caused.
The condition is that it is not spoliator of the Treasury or Business Treasury. It's possible.
6) - Conclusion
The government could use its capacities to organize an experimentation of this type of compensation. Still, he must want it.
In fact, the reflection can only be conducted when the benefits of chaos appear less than those of the order for the management teams.
Everyone understood that everything is there!
Marc SALOMONE
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