He comes to play around this trial highly media scenario in 3 stages: the assize court delivered its verdict, the victim’s family and Jewish associations have publicly challenged the sanctions (except of course the maximum penalty imposed Mr Fofana against), and the minister of justice said he asked the Crown to appeal against “sanctions below the requisitioning of the General Counsel.”

This requires some comments.

1. When a first assize court gives its verdict in a case involving many defendants, after a long and painful, the appeal does not present a real interest that while some sanctions are clearly inadequate or incomprehensible. Rearrange weeks of trial to reach a year in prison for some, a year less for the other (1), is of no use to anyone.

Therefore, in my view, a call is legitimate only when the trial decision presents an anomaly recognized as such by many witnesses of the trial.

In the case Fofana, the attorney general himself has welcomed a verdict of high quality have made the difference between the gravity of the facts, their media, and customization of sanctions on participation and personality of each accused.

2. The argument put forward by the minister of justice, ie the difference between the proposed penalties and punishment (2), is troubling. Indeed, the requisition of a member of the public prosecutor at the hearing are the opinion of one person (sometimes, but very few cases, a court parquetiers discuss among themselves before sanctions require that the One of them goes to the hearing). These requisitions are neither infallible nor a word an absolute reference. They are a reference point among many others. Furthermore, according to business, some are balanced requisitions, or too lenient or too severe. The content of requisitioning information, please let us therefore not truly about what is in each case the sentences are best suited to the facts and personalities of the defendants.

Therefore consider it appropriate to rely on the sole ground that the sanctions imposed after a deliberate involving 12 people are below the opinion of one man has something wrong. The process could not understand, and yet, as a precondition to state categorically that the requisitions have stated the only appropriate sanctions and that the sentences below are clearly inadequate.

Note that in the case Fofana this reasoning is particularly difficult to understand because the trial was held behind closed doors. It is therefore difficult, if not impossible, to those who have never attended the discussions to form a reasoned opinion on the sentences that appear most plausible After several weeks of debate.

(updated on July 15) The statement of the Minister will also have an indirect consequence on the conduct of the second trial. Since the reason for the appeal is the imposition of penalties less than the requisition, the consistency of the process will be preserved only if, on appeal, the attorney general application of penalties at least equal to those in the first instance. So does this mean that he will be appointed who will have more than the usual freedom recognized all prosecutors, and that allows / encourages them to request that their sentences seem fair and not those that others would even pronounce? The next leader of the prosecution going to have to take a questionnaire to all his assistants to find out what each would be likely to require, and designated for the hearing those whose submissions are at least equal to those of the first instance?

But perhaps considers there here and there that the question does not arise and that they are not a single judge of the Crown to dare disobey the same implicit instructions of the ministry, especially since the appointment / parquetiers promotion is entirely in the hands of the Chancery …. Here is an opportunity to question the status of the prosecution …

Beyond that, we already imagine the scene if the second attorney general proposed for certain of the defendants retried sentences lower than those required in the first trial ….

3. What bothers finally, the chronology of events.

Not only the members of the family of the victim, but several Jewish organizations have denounced the verdict of the assize court, considering it insufficiently severe to most defendants. There is nothing wrong with it, every citizen is authorized to issue an opinion on the decisions of the courts.

But opinion does not necessarily mean opinion nor wise. Members of these associations are there, and it is their role, legitimate to defend the interests of those who share their beliefs.

But emotion does not always rhyme with reason. Trying to meet some more than others, because the former have greater capacity to be heard, may at any moment to get away from a serene and balanced justice.

We must never forget that the purpose of the judicial institution is not satisfied, nor to please. Those who judge must always remain a reasonable distance from private interests, passions, excesses. We must therefore avoid permanently to listen more carefully to each other. Tomorrow, if pressure groups denounce defendants in support of a verdict too harsh, the Department of Justice going to immediately ask the prosecution to appeal for less severe penalties are imposed on appeal?

In any case, the fact that the Minister of Justice decides to impose on the Crown to appeal shortly after the positions of Jewish places of wonder if there is a causal relationship ( 3). This would be truly alarming in terms of independence of the judiciary, and keeping passions at a distance.

And let’s not forget that in our current law, the appeal is not allowed plaintiffs. Only the accused and the prosecution may challenge the verdict of the Assize Court by way of appeal (Article 380-2 of the Code of Criminal Procedure).
When in such circumstances, the Minister of Justice decides to appeal, one wonders who is really behind the gesture and it is not, indirectly, to offer a civil party, and indirectly to a group pressure that accompanies it, a right that the law does not give him.

Finally, it is not easy to find elements that could convince us that to appeal the decision of the Assize Court was truly indispensable.

In addition, the risk of further disillusionment after the second trial.

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1. The comparison between the sentences in first instance and then by the courts of Assizes of Appeal, you can read this statistical study of the Ministry of Justice, published in 2008.

2. For a number of accused the difference between the requisition and punishment is minimal. For example, to the minor used the bait, the Advocate General has required “10 to 12 years in prison and the Assize Court had sentenced to 9 years in jail ….

3 (updated on July 17) According to the newspaper Le Monde dated 18 July 2009, the Minister said he appealed because there is “a real risk that victims no longer have confidence in justice and seek to take the law themselves. ” This is to confirm that the objective is to satisfy a desire for severity of the victims, without any regard to the reasonableness (or not) of sentences. This is extremely worrying for the future of a justice that must always remain immune to the passions.