Saturday, August 25, 2007

Victims' Rights

Rue89 today attacks Pres. Sarkozy's recent call for trials of individuals who are deemed "not responsible for their actions" under French law. The headline puts the matter in rather lurid terms: "Sarkozy wants to try madmen, magistrates rise up." I think the issue deserves more sober consideration. "As chief of state," Sarkozy says, "I must see to it that victims have the right to a trial in which the criminal, the experts, and everyone will be obliged to state his beliefs."

One might respond to Sarkozy by saying that victims may have rights, but not necessarily to a trial. Victims forgo private vengeance because the state acts in their behalf, but it is up to the state to determine the procedures under which it does so. The trial is a device to protect the rights of the accused, who may be deprived of life or liberty. Its purpose is to determine facts and pronounce applicable laws. If the facts are uncontested and the only question is the technical one of the accused's responsibility for his actions, French law allows for exceptions to the right of trial. Sarkozy does not question the competence of the courts to determine "irresponsibility" without a trial, but he finds that the recourse to this procedure may fail to satisfy the victims emotionally: "The trial makes mourning possible." Rue89 calls this "judicial theatricalization" (la scénarisation judiciaire).

But of course there is an element of the theatrical in any trial, and one might respond in turn to Rue89's critique by saying that the "technocratization of justice" enshrined in the present procedure has just as little to recommend it. In the United States, "victims' statements" have become an increasingly common feature of the sentencing phase of criminal and even some civil trials. Such statements respond to the same emotional need that Sarkozy's declaration evokes. Those who prefer a more rational, more disembodied, more blind justice may find the intrusion of the raw emotion often conveyed by such victims' statements distasteful, yet it must be granted that allowing victims a "voice" in the proceedings does take account of a fundamental feature of state justice, that it exists as a substitute for private vengeance, and that the willingness of aggrieved parties to defer to the blind justice of the state cannot be taken for granted and may require some compensatory sacrifice of purer principle. Why the need for such compensation should be greater now than in the past is an interesting question. Whether it should be indulged or resisted or gently corrected can certainly be discussed. But I do think it's somewhat hasty to dismiss Sarkozy's proposal out of hand, as though it were illegitimate even to raise the issue.


L'Amerloque said...
This comment has been removed by the author.
L'Amerloque said...

Hello !

Of course many, many French people – and expats living here - feel that the judges in France are far too lenient (La Magistrature a démissionné !). Sarko is simply trying to keep his feet in a political landscape which is in some fashions turning to quicksand, what with the actual result of some of his election promises …(grin)