French Legal System
 

Hi all,

In a news article on yahoo.com, http://story.news.yahoo.com/news?tmp...urope_abortion

I came across this statement:
"He was acquitted in 1996, but the Lyons Court of Appeal reversed the verdict a year later and sentenced him to six months in prison".

Is this report correct? In the US, you cannot be tried again for a crime after being acquitted.

Do other European countries permit overturning acquittal verdicts?

The US legal system is unique in many ways. Citizens of other countries (naturally varying by country)do not have all of the rights we do either while under arrest or during trial. the French legal system - and also in some other parts of Europe - is based on the Napoleonic code - which is vastly different than our system. Just one major - you are not assumed to be innoocent until proven guilty - once you are charged you are presumed to be guilty and have to prove your innocence.

This is why its incredibly important not to break any laws - or even violate traffic regulations in other parts of the world.

Not everyone would agree that the double jeopardy convention is a "right".

There has been pressure to repeal the double jeopardy system in the UK (ie to allow retrial after an innocent verdict) because of the widespread belief that criminals are getting off too easily, and as a result of a particularly unpleasant murder case where no-one's been found guilty.

Personally - and I'm sure I speak for many - I find my rights are under far greater threat from uncontrolled crime than from the ability of governments to re-open cases.

I don't know about the legal system, but the sentence you wrote didn't say he was tried again. It said the judge changed the verdit. They can do that in the US, also -- I've heard of cases where the judge sets aside a jury verdict because it cannot be supported by the facts or something.

Verdicts can be overturned in the US, also, for various reasons, that's why there are appeals. That's all you heard about in law shows, they are always appealing verdicts, don't you want the Practice or Law & Order? I know that's the other direction, but it's kind of the same idea, just giving the prosecution the same rights to appeal a verdict.

Hi Christina,

In the US no one can change a verdict from "not guilty" to "guilty", nor can a person be retried on the same charge if found "not guilty".

That's why I asked the question.

I suspect that when all is said and done, the results are pretty much the same in both countries. My French house was vandalized as part of a drunken spree and the perpetrators were caught red-handed by the neighbor's son who, although a policeman, could not arrest them because he was off-duty--I guess that citizens' arrest does not exist. They were recognized, reported and arrested, and I am told that it will take at least three years before they come to trial or whatever, and that I should not get my hopes up in getting damages back. In the meantime they are out in the community.

I have often wondered if the US system might be improved by offering a defendant a deal at the beginning of his or her trial. Each defendant would decide prior to the trial whether or not to accept the right to appeal. If they choose the possibility of appeal, the state also has the right to appeal a "not guilty" verdict. If they decline the right of appeal, the state has no recourse if the verdict is not guilty. If such a convention was implemented, it would probably be prudent to have judge review each non-appealable case to verify that no egregious procedural violations occurred.

The existing US system does offer the maximum protection for the innocent, but it also provides abundant opportunity for exploitation (by almost limitless appeals) by the guilty.

Yes, under french law, the prosecutor can appeal an acquital verdict.


But the post about peole not being considered innocent until proven guilty under french law and having to prove your innocence(I already read the same statement on other american and english boards) is total bullshit.

It's indeed not mentionned in the Napoleonic code, since it's not a legal but a constitutionnal principle under french law. Art. 11 of the 1789 declaration of human rights (which has constitutionnal value in France) : "Toute personne accusée d'un acte delictueux est presumee innocente jusqu'a ce que sa culpabilite ait ete legalement etablie au cours d'un proces public ou toutes les garanties necessaires a sa defense lui auront ete assurées"

Bad translation "Any individual accused of an unlawful action is considered innocent until his guilt has been legally established in a public trial during which all guarantees needed for his defense had been provided to him"


There are many differences between the anglo-saxon and the french legal systems. The most obvious is that the anglo-saxon countries use an "accusatory" system, while France and other countries which adopted a system based on napoleonic code use an "inquisitory" system.

In other words : in an anglo-saxon country, the inquiries are led by a prosecutor whose job is to prove the accused is guilty. In france, they are led by a judge who act as a kind of "third party" between the two sides : the accused and the prosecutor and must gather evidences in favor of the defendant (evidences of his innocence) as much as in favor of the prosecution (evidences of his guilt).

The reasonning behind this system is that the anglo-saxon system is unbalanced in favor of the prosecution, since the inquiry is led by the prosecutor, himself backed by the state, hence has much more means than the defendant (except if said defendant is very wealthy, for instance). So, the prosecution has an easier job at finding evidences of guilt than the defendant at countering them.

In other word, the reasonning would be that the american system doesn't provide enough guarantees to the accused.

Of course, the french "inquisitory" system has its own flaws, and though this acusatory/inquisitory difference is the main one from a theorical point of view, there are many, many others, which are probably much more obvious for a random observer who never studied laws. I'm not going into much more details, since this post is already long enough.

Just to give an example, an american trial looks more like a sport match, following many rules, with the judge as a referee. A french trial looks more like a debate between the judges, the prosecution, the accused and his lawyers, the victims and his lawyers, etc..led by the judge presiding the court. For instance, the judge will ask questions to a witness, said witness will routinely argue with the accused, etc..

Another very important difference I didn't mention is that there is no "guily/not guilty" plea under french law. As the consequence, there can be no deal between the prosecution and the accused. Whether or not you admit to the crime doesn't matter. In both cases, you'll get a full trial, and the jury will have to decide on your guilt.

Theorically, you could very well state you indeed viciously raped and murdered the little girl and be found "not guilty" by the jury. And since any possible weird thing take place sooner or later in courts, it did actually happen.

I mentionned this because deals with the prosecution and guilty pleas are an essential part of the anglo-saxon justice system, but once again, there are *a lot* of other major differences I'm not going to list now.

Oh! And a last comment concerning the following statement made by another poster :


"The existing US system does offer the maximum protection for the innocent"


How do you know that? Is it, as I suspect, an assumption of the "we're the best by definition" kind, or is this statement the result of an extensive study of the legal systems in all other democratic countries, followed by a careful comparison of the flaws and advantages of each of these systems re the protections offered to the accused? (I somehow doubt it).

In Scotladn we too have a version of double jeopardy. If you "thole your assize" (suffer your trial) you cannot be retired. It's one of the many rights the current incredibly illiberal government is trying to take from the accused in England. Thank God for a Scots Parliament.

Clair, it's rude of me to correct your Enlish, but the direct translation is "inquisatorial"; and I HAVE studied law and find the whole thing fascinating.

I think the flaw (and there are many on our side) is the emphasis on the importance of the opinion of the juge d'instruction.

We also have an odd verdict here in Scotland. It's called "not proven" and derives from the days when the charge was found to be proven or not proven. However, it's commonly translated in modern parlance as meaning "you're guilty but we cannae prove it!"

I don't think the statement "The existing US system does offer the maximum protection for the innocent" means the writer says the US legal system is the best (anyone remember OJ?). It just says all reasonable protections to the accused are afford. Surely Clair, with his legal knowledge, can read it that way.

I don't know much about the French legal system, but I saw a movie about a man who was wrongly accused and sent to this awful island off the coast of South America, where the conditions were truly barbarous. In the end he escaped on a raft made of coconuts [shivers].

While true that you can not be tried for the same crime in the US you can be charged with a different charge and tried again. So double jeopardy does not make you immune from more persecution (prosecution). Anyone who thinks that the US judicial system is the best in the world should take a step back and look again at the evidence.

Sheila,

Actually, it's not rude at all to correct my english, but at the contrary very helpful.

As for the flaw you mentionned concerning the "juge d'instruction", it's indeed true, and the major issue is that it's the exact same person who issue the warrants, can send you to jail during the enquiry, etc... That's the reason the "juges d'instruction" are nicknamed "the most powerful men in France".

Of course, this issue could be solved by having a different judge issuing the warrants, or at least other judges reviewing his decisions, but such proposals had been rejected plainly because they would cost too much money.

Yawn Boring..great screenname!! Those who live HERE in the state of Louisiana are quite familiar with the Code Napoleon upon which their state laws are based.
What any of this has to do with travel I am not certain unless someone is planning to go to France (or Louisiana) and break the laws. But I suppose this is better than the usual shouting match that erupts whem people post "political" statements here and all the self-righteous rise up and treat us to one of their lectures about what is and is not appropriate on this board!

Re: quote from smueller: "The existing US system does offer the maximum protection for the innocent, but it also provides abundant opportunity for exploitation (by almost limitless appeals) by the guilty."

Except, it would seem, for capital cases where the sentence, once enacted, allows no further appeal with gravest finality.

I give thanks that in the UK we allow ourselves the possibility of error.... God knows we have had need of it, and regularly do - hardly a month goes by without a high profile case being overturned; even today a woman convicted of double infanticide walked free after 18 months in prison - for the crime of suffering the terrible tragedy of cot death not once, not twice but three times.
I suspect in Texas or Florida that walk today out of the court might have been denied her by the due process of law.

Dr D.

Sorry, Dr Dogood, but there are NUMEROUS appeals following a death sentence, which does not occur for years after the sentencing.

I do expect (or hope) that the margin of error is radically reduced with the introduction of dna testing wherever it can be applied in the crime investigation process.

Apparently &quot;secularism&quot; is mandated by the French constitution, so a French court just ruled that Muslim woman may <b>not</b> wear head scarves and such in public schools and elsewhere. A bit of a Big Brother type reach into people's personal lives, wouldn't you say?

Hi smeuller,

A very good idea. However, the 5th point of the Bill of Rights provides that &quot;...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb&quot;, so that your suggestion would require a change to the Constitution.

Clairobscur,
Thanks for a very interesting lesson.

Sheila,

I have always been fond of the &quot;not proven&quot; verdict.

The secularism of the French Constitution is just the same as your own, you know- separation of state and church.

And it's recommendation from a commission to Parliament, not a court decree.

And it's religious symbols in public schools not headscarves &quot;elsewhere&quot; (although it was the headscarves issue that triggered the debate).

But don't let the truth get in the way of a good story:)

Sheila,
According to Reuters and other news sources, the head scarves (and other religious symbols) will be banned from schools if Chirac signs this into law, and he has indicated he will do so. This is going beyond separation of church and state. But congratulatoins on brushing up on your grammar, at least I understood your argument.

Although Louisiana law is based on the Napoleonic code, as opposed to the English common law, people in LA are still afforded ALL of the rights granted under the U.S. Constitution, as well as the U.S. Supreme Court.

Dear Yawn.

I'm genuinely interested, not picking a fight. How is the removal of religious symbols from state institutions different from, say, dropping the words &quot;under God&quot; from the Pledge of Allegiance?

(It's usually my typping rather than my grammar, per se, that's at fault- just ask my secretaries)

Hi all,

Although we are straying from my original query regarding the French legal system, I am interested in the headscarves issue, as we have the same situation in the US.

If a Muslim woman wears a headscarf to school, how does that differ from wearing a cross outside one's clothes?

I'll take a shot at your question, Sheila.

The words &quot;under God&quot; in the pledge and &quot;In God we Trust&quot; minted on coins may be viewed as state sponsorship of religion.

Restricting the wearing of headscarves is tantamount to disallowing the practice of one's religion.

Ir, according to the French commission, it doesn't. Nor does wearing a yarmulke.

Responding to the last two posts:

A recognition that there is/was a Creator is not necessarily a religious belief.

I recognize that there are people who insist that there was no Creator, but as an engineer and scientist I can only consider this to be a religious belief.

If wearing a headscarf is not permitted, then any other religious symbols should not be permitted.

&gt;I recognize that there are people who insist that there was no Creator, but as an engineer and scientist I can only consider this to be a religious belief.

If wearing a headscarf is not permitted, then any other religious symbols should not be permitted.&lt;

If atheism is a religion, what's the symbol to be restricted from French schools?

This is scary stuff!

&gt;If atheism is a religion, what's the symbol to be restricted from French schools?&lt;

I should have inserted the parenthetical (and I agree that it is) after the word &quot;religion.&quot;

Beachbum has it right. The First Amendment says &quot;Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.&quot; &quot;Under God&quot; in the Pledge of Allegiance might be considered to violate the Establishment Clause (though the Supreme Court will probably say that it doesn't); banning headscarves would almost certainly violate the Free Exercise Clause.

What about Sultaana Freeman, who sued the Florida DMV because it would not allow her to take her DL photo wearing a birka, with only her eyes showing.

http://www.courttv.com/trials/freeman/052703am_ctv.html

The District Court ruled against her, ruling that the State had a complelling interest promoting public safety, which is served by the ability to identify individuals.

http://www.courttv.com/trials/freema...nveil_ctv.html

Hi beachbum,

Since atheists have no religious symbol, the French would have to ban wearing nothing. This would, of course, be a major problem at nude beaches.

I knew we could get this thread to be travel related.

The difficulty arises when the needs and requirements of the state come into conflict with the needs and requirements of religion.

For example, the state needs and requires to ensure the security of the public; a male Sikh by his religion needs to carry a knife. The solution thus far has been to permit 'symbolic' knives to be carried by male Sikhs when, for example, they are on board aircraft. (****Here is where this issue can arguably relate to travel.****) But the state, not the religion in question, reserves the right as to how best to resolve such conflicts. Many states will refuse to issue passports unless the face of the applicant is visible in the photograph; the argument that a veil must be worn at all times for reasons of religion won't be accepted.

Questions on religious symbols become trickier the further one delves into just what it is the state needs and requires. As for religions, they are notorious for having a lot of in-fighting as to just what it is their holy texts mean and what is needed and required by their followers. The French and other multicultural states could argue that the people need to be unified as citizens, and this in turn requires that religious differences not be emphasized when said citizens appear in public. On the other hand, for one and the same goal of unity, one could argue that this requires that differences SHOULD be emphasized in public, in order that such differences become acceptable to the general populace.

Of one thing I'm certain. People are complicated, and life is messy. Our laws will thus be similarly complicated and messy, always up for argument.

Frankly (no pun intended) the French have quite a dilemma. There is a large and vocal anti-Semitic crowd in France, and now that the gov't has finally turned its attention to its Muslim population, it is doing things that could provoke a backlash. In short, Chirac tried to have it both ways, placating the Muslims and maintaining France's secularism, but that didn't work, and the prospects for racial harmony in France are quite dim -- and given France's history, that's saying <i>quite a lot</i>.

&lt;There is a large and vocal anti-Semitic crowd in France&gt;

I am italian but I've been living in france for several years in the 80s. I know very well that country and I can tell you that France is not at all an &quot;anti-Semitic&quot; country and neither has ever been. Of course you can always find a minority of true anti-semitics, but no more than what you would find in the US.

While it is true that many french collaborated with the Vichy govnmt and the Nazis in WW2, and that they gave away a lots of Jewish families, the reasons are not to be found so much in &quot;antisemitism&quot; but more so in the following two factors:

1- Cowardly: I like the French, but I must say they can be some time very cowards and submissives

2 - Chauvinisme: The most important reason. French have always historically been very Chauvinists, and there fore even if I would not say they are racists, they never really were enthusiastics for strangers and other cultures. What happened with the Jews could have happened with any other religions, races or just foreign populations at that time if the occupying nazis would have required it...

The latest incidents in Sinagogues and jewish cemetery also are not to be confused with antisemitism. France has both the largest Jewish (600.000) and Muslim (5 milions) comunity in Europe. At the time when I was living there, the french people were way more chauvinist against the muslims than against the Jewish people, for the simple fact that the jewish ARE french and therefore perfectly integrated in that culture meanwhile the muslams are mostly arabs and had a lots of problems into adapting in the french culture. (French were also not very frendly with the waves of Italians and spanish immigrations that invated that country in the 19th century till the 1960s...)

Nowadays I must say the French made huge progress and are not any more chauvinists like they used to be, they actually are very open minded with other cultures since it became a multi-cultural country.

You have to understand that all the incidents that happened against jewish symbols lately were committed by Muslims from arabic origins. Also there is hate between arabs and jewish i wouldn't call that anti-semitism since the arabs are semitics people too. Further more the jewish communities that lived for centuries in the Arabs world never met any problems till the 20th century. Arab and Jewish cultures have a lot of common points, almost as much as you can find between Italians and Spanishs. What is happening in Israel is a tragic situation where you don't have &quot;good&quot; and &quot;Bad&quot; guys, but only two populations that are in so many ways very similar and that could have lived peacefully together but for a sad and fatal tragedy are unexpectedly fighting each others...

Thank you, CR

First of all, I have to say that I think that anything that helps us to understand the culture of other countries is travel related. It's always good if we can stay off pejorative and, touch wood, we've managed to do so here.

Having read quite a lot of press about this, I know that the view the French commission is taking is that allowing overt religiosity in state schools might be seen to be state support for religions. And we shouold be clear that this recommendation is not about scarves; it IS about all symbols of religion. I must admit, I am slightly struggling with that. But that is the viewpoint. I think it's true to say that there is nothing in the Koran that requires the wearing of scarves- it's all to do with culture- proper modesty etc. I would stand to be corrected.

I suspect that the same is true of the wearing of the yarmulke, but I make the same caveat. Certainly, as a practising Christian, there is nothing in the Bible that says we have to wear crosses, and the Calvinists around here do not allow cricifixes because they are graven images. Arguably the stuff in gospels about going away quietly to pary on your own could be interpreted as Our Lord's imprecation that we don't flaunt our religion.
(Goodness, this is dangerous..out of politics and into religion and it's not quite breakfast time).

I would also have to say that I'm struggling with the view that belief in a Creator doesn't automatically mean one has a religion.

How, on the other hand, belief that there is no God can be interpreted as a religion I also find baffling.

Since I'm now spending quite a lot of time in France, I have to say that it IS a very secular nation, in a way that would not be recognised in the US. The same is true of most of Europe but I suspect the French are at one end of the scale. Most people profess Christianity if asked, but, at least in the context of organised religion, do little to practice it.


The French, as a nation, remain hugely shocked by Vichy, and I could not imagine the same thing happening again. They are very pragmatic (some might say even unprincipled- see this weekend's collapsed European summit; or the alliances before the First War)in their practice of politics; but I suspect never agin at the expense of their national integrity.


Thanks everyone for making me think about this.

Hi Sheila,

&gt; .... I'm struggling with the view that belief in a Creator doesn't automatically mean one has a religion.

How, on the other hand, belief that there is no God can be interpreted as a religion I also find baffling.&lt;

It has long been suspected, and is now pretty much proved, that the Universe suddenly appeared. Something created the universe.

One needn't have any religious beliefs to accept a Creator, with the caveat that one could be wrong. OTOH, to deny the existence of a Creator takes a leap of faith.

My on-line Websters has this
&quot;Note: Religion, as distinguished from theology, is subjective, designating the feelings and acts of men which relate to God; while theology is objective, and denotes those ideas which man entertains respecting the God whom he worships, ....&quot;. Since denying the existence of God is subjective, aetheism is a religion.

Ira writes:

&quot;It has long been suspected, and is now pretty much proved, that the Universe suddenly appeared. Something created the universe.&quot;

Are you saying that if you accept the theory that the universe &quot;suddenly appeared&quot; that it was created by a &quot;creator?&quot;

Is it not plausible that it's all about science and not some divine intervention/invention/creation?

Dear Mizz Eve,

At this point, the best science can say is that about 12 - 15 billion years ago the universe suddenly came into existence and that there was nothing there before.

It is hard to except that it did it all by itself.

There are some mathematicians who still hold to the idea that the universe has existed since an infinitely long time ago (they use the term infinitely in a mathematical sense) and keeps expanding and collapsing. There is, as best I know, no way to test this hypothesis. That puts us back into the realm of faith.

Actually, I am not sure that the Creator is/was a divine being. I think that we are just a computer game being played by a preadolescent boy.