Law on the repetition

the law reinforcing the fight against the repetition of major and the minors of August 10th, 2007, also called Law on the repetition or law Dati is resulting from the bill of the government Fillon, implemented by the Minister of Justice, Rachida Dati, and adopted by the Joint industrial commission on July 26th, 2007.

This law comprises three principal measurements: introduction of sorrows minimal in the event of repetition, known as “sorrow-floors”, possible exclusion the excuse of minority for the recidivists of more than 16 years and the injunction of care, in particular for the sexual delinquents.

This law made object of many criticisms on behalf of the opposition as on behalf of the professionals of the right. The opposition to the National Assembly and the Senate lodged appeal in front of the Constitutional council to the reason for the unconstitutionality of several of its provisions. The Constitutional council decided on August 9th, 2007 that the provisions called upon in front of him are in conformity with the Constitution.

Measurements

Minimal sorrows in the event of repetition: “sorrow-floors”

This point of the text concerns all the delinquents or criminal answering of an infringement liable three years or more reclusion, to Détention or imprisonment. If the person is in situation of repetition, the law envisages to introduce sorrow-floors. For the crimes, these sorrow-floors are:

Five years for fifteen years a punishable crime of reclusion or detention,
Seven years for twenty years a punishable crime of reclusion or detention,
Ten years for thirty years a punishable crime of reclusion or detention,
Fifteen years for a punishable crime of reclusion or detention with perpetuity.

For the offenses, the sorrow-floors are:

One year for three years a punishable offense of imprisonment,
Two years for five years a punishable offense of imprisonment,
Three years for seven years a punishable offense of imprisonment,
Four years for ten years a punishable offense of imprisonment.

The judges could derogate from these thresholds, but in limited cases, and even more reduced as of the second repetition. But so that there is exemption, it will be necessary that there is “investigation of personality” of the defendant.

The introduction of “sorrow-floors” is justified by the will to discourage the delinquency, by founding a precise and automatic threat in the event of act of delinquency, or repetition.

Exclusion of the excuse of minority

It is about the possibility of excluding the Excuse from minority for the minors of more than 16 years in case for the repetitions and of serious offenses. Up to 2007, this principle wanted that for the minors the sorrows are divided by two.

In addition, the exclusion of the excuse of minority is automatic starting from the second repetition. The juvenile court or the Court of Assizes of the minors can derogate from this exclusion, but is then obliged to justify this choice.

Relative tendencies with the injunction of care

Firstly, these provisions impose treatments on people condemned to a socio-legal Suivi.

Secondly, the law envisages the suppression of the Release on parole for a person condemned for a crime or an offense for which the socio-legal follow-up is incurred, when this person opposes a treatment during the period of her imprisonment or does not commit itself following the treatment after its release.

Lately, the law imposes to the judge, in specific cases, to order a Medical expertise.

Development of the law

The project was adopted by the Sénat with the only voices UMP and center in June 2007. It was subjected to the National Assembly on July 17th, 2007. A hundred amendments was deposited on this project, examined according to the emergency procedure (only one assembly lecture), and that the executive hopes to see definitively voted on August 3rd, 2007.

The text was adopted on July 26th, 2007. The UMP and the Nouveau center voted for, the socialist , the communist and the Verts against. The final text is close to the first version voted by the National Assembly. It is resulting from the compromise worked out in Joint industrial commission (7 senators, 7 deputies), and adopted with the Senate. The joint industrial commission made modifications only on the question of the warning of condemned, in the event of repetition. The deputies had removed the obligation made with the jurisdiction which pronounces the sorrow " to inform condemned consequences of a new judgment " in a state of repetition. In the final drafting, it is expected that " when the circumstances of the infringement or the personality of the author justify it, the president of the jurisdiction informs condemned to marked of the sorrow of the consequences which a judgment " would involve; in a state of repetition.

Critics justifying the sasine of the Constitutional council

There would have been sasine of the constitutional council for various reasons which are related to supposed imperfections of the law.

Arguments relating to the introduction of the sorrow-floors

On the one hand, the articles relating to the sorrow-floors were submitted with the reason for their ignorance of the principle of constitutional value of individualization of the sanction, reproaching in these articles for not leaving a margin of appreciation to the judge, by in particular obliging it obligatorily to pronounce a Sentence of emprisonment. The law envisaging of the exemptions from the sorrow-floors, the conditions of these exemptions were considered to be too constraining by the authors of sasine.

In addition, these articles saw reproaching the ignorance of the Principe of need and proportionality of the sorrows. Being the need for the sorrows, the text of sasine calls upon several studies, French and foreigners, revealed that the introduction of the sorrows floors does not result in to decrease the delinquency. With regard to the proportionality of the sorrows, the authors of sasine make the point that the imposed minimal sorrows do not take account of the importance of the crime or an offense. Thus, the text gives an example of a flight in large surface which will be punished in the event of one year repetition of minimum imprisonment, judged not very proportional.

Moreover, the authors of sasine made prevail the ignorance of the Droit to a fair trial by the law, this one excessively framing the capacity of the judge as for the decision of the quantum of the sorrow. It is advisable however to announce that it is not a question here to dispute the principle even minimal sorrow, this one existing already in criminal law (v. for example Article 132-18 of the Penal code), but only the margin considered to be reduced of appreciation of the quantum left to the judge.

Finally, the articles relating to the sorrow-floors admit an exemption from the application of a sorrow-floor for a second repetition “if the defendant presents exceptional guarantees of insertion or reintegration”. The authors of sasine made prevail that the expression “guaranteed exceptional” is not sufficiently precise, and is thus contrary with the Exigence of clearness and precision of the criminal law, a requirement with constitutional value, rising from the Principe of legality of the offenses and the sorrows.

Relative arguments other than the excuse of minority

The authors of sasine stress that the provision of making it possible in certain cases to apply to a minor the right of major is contrary with a basic principle recognized by the laws of the Republic of the existence of a criminal justice of the minors.

In addition, the members of Parliament judged that a provision reversing the excuse of minority in the case of the second repetition (by making exclusion of the excuse the rule, and excuse - exception) is contrary with the constitutional principle of specificity of the criminal law of the minors, “the principle according to which, except exception justified by the species, the minors of more than sixteen years profit from an attenuation from criminal responsibility”.

Argument relating to the provisions which relate to the injunction of care

The authors of sasine dispute the provision of the law, according to which “the person condemned for a crime or an offense for which the socio-legal Suivi is incurred” cannot see herself granting the Release on parole if she refuses the treatment during her imprisonment. There still, the members of Parliament call upon the principle of need for the sorrows and that of individualization of the sorrows.

Others critical and debates

Critical of prison overpopulation

The law on the repetition was criticized in particular for the fact that it will have as a probable consequence the fact of increasing at the same time the number and the duration the sentences of emprisonment. This results obviously in to cause a Prison overpopulation from which already the prison authorities suffer.

Critical of the not-neutrality of the government

Certain politicians of left criticized the standpoint of the government Fillon in the development of the Bill on the repetition. Indeed, this bill (and thus the law even) considered to be too repressive by some, do not take account of the personality of the delinquent. It founds to some extent automatic rules which apply without distinction to all the delinquents and who bind the decision of the judge. In this direction, the introduction of the sorrow-floors was discussed, but of other provisions also saw the reproach to be unaware of the Principe of the individualization of the sanction.

However, the judge, who was already limited by a sorrow ceiling, preserves a broad space between the sorrows floor and the sorrows ceiling to personalize his judgment.

Critical relative other than the excuse of minority

The exclusion of the Excuse of minority to fact also object of controversies. The opponents made prevail that the assimilation of a juvenile delinquent to major and in particular its early imprisonment is a counterproductive measurement, which can cause to push of advantage the minor in the delinquency. The opponents are based on an argument according to which a minor person put early in contact with the prison world has a stronger tendency to remain (or become) a delinquent or a criminal.

Debate relating to the independence of the magistrate in the application of the sorrow-floors

August 26th, 2007, the vice-prosecutor of Nancy, Philippe Nativel, had required a one year sorrow of imprisonment for a person recidivist continued for drug trafficking, whereas in this precise case, article 2, subparagraph 6 of the law on the repetition lay down four years a minimal sorrow. Matter of the vice-prosecutor: “I would not require this sorrow floor four year old because the magistrates are not the instruments of the capacity. It is not because a text leaves that it must be applied without understanding. ” were worth a convocation with the to him Ministère of Justice. Even if the Chancellerie gave up disciplinary continuations after having auditioned the magistrate, this convocation caused strong reactions on behalf of the trade unions of the magistrates about the independence of justice.

Effects

Heavier sanctions

With this new law, a person stealing ten euros (65 frans) and a vital card, without violence, are condemned to a sorrow floor, two years minimum, including 18 firm month.

The purchase of 2 grams Cannabis for its personal consumption, by a person considered by the law as recidivist leads thus to a sorrow firm floor four year old.

The flight of an umbrella in a car, by a SDF is thus punished two years of imprisonment.

Other effects

According to the Le Monde newspaper, the sorrows floor empécherait to have a sanction proportioned with the fault.

This law would make it possible to increase the number of prisoners of 10 000 between 2007 and 2012.

References

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