Rights of defense

The right of defense are the rights which any person has to deny oneself the threat that for it a Procès constitutes.

The rights of defense get along as well at the stage of the investigation as of the phase of instruction or judgment.

Any person is entitled so that its cause is heard by an independent and impartial court and within a reasonable delay

Any person marked must have of time and the facilities necessary to the preparation of its defense and the possibility of communicating with the council of its choice.

Any person must be able to be defended in Justice, that it is personally, or assisted by a lawyer.

the modern right recognizes with a continued person a Droit to silence.

Some of its basic rights are sometimes called into question even in modern states, in particular with the the United States, in the name of the fight against the Terrorisme:

- on the right to silence: Zacarias Moussaoui, Verdict in lawsuit the USA v. Zacarias Moussaoui

- on the assistance of a lawyer and the right to a fair trial: to see the concept of illegal Combatant

- on the detention conditions and the violation of the human rights: to see Prison of Guantanamo

International texts devote the existence of the rights of defense:

Universal declaration of the human rights

(extracts) Preamble

Considering that the recognition of dignity inherent in all the family members human and their equal and inalienable rights constitutes the base of freedom, justice and peace in the world, Considering that the ignorance and the contempt of the human rights led to barbarous acts which revolt the conscience of the humanity and which the advent of a world where the human beings will be free of speaking and believing, released of terror and misery, was proclaimed like the highest aspiration of the man .

Article 7

All are equal in front of the law and have law without distinction to an equal protection of the law

Article 10

Any person has right, in full equality, so that its cause is heard equitably and publicly by an independent and impartial court, which will decide, either of its rights and obligations, or of the cogency of any penal matter charge directed against it.

Article 11

Any marked person of a punishable act is supposed innocent until its culpability was legally established during a public lawsuit where all the necessary guarantees with its defense will have been assured to him.

international Pact relating to the civil laws and political

Article 14

1. All are equal before the courts and the courts of justice. Any person is entitled so that its cause is heard equitably and publicly by a court of competent jurisdiction, independent and impartial, established by the law, which will decide is cogency of any penal matter charge directed against it .

2. Any person marked of an penal offense is supposed innocent until its culpability was legally established .

3. Any person marked of an penal offense has right , in full equality, at least with the following guarantees :

a) With to be informed, as soon as possible, in a language which it understands and in a detailed way, of the nature and the reasons for the charge carried against it ;

b) With to have times and facilities necessary to the preparation of its defense and to communicate with the council of his choice;

c) With to be judged without excessive delay ;

d) To be present at the lawsuit and to defend itself or to have the assistance of a defender of his choice; if it does not have a defender, to be informed of its right to have one of them, and, each time the interest of justice requires it, to see itself allotting to office a defender, without expenses, if it does not have the means of remunerating it;

e) With to question or make question the witnesses with load and to obtain the appearance and the interrogation of the witnesses for the defense under the same conditions as the witnesses for the prosecution;

f) With to be made assist interpreter free if it does not include/understand or does not speak the language employed with the audience;

g) With not to be forced to testify against itself or to acknowledge guilty .

4. The procedure applicable to young people who are not yet major in comparison with the criminal law will take account of their age and of the interest of their rehabilitation.

5. Any person declared guilty of an infringement has the right to make examine by a jurisdiction the higher declaration of culpability and the judgment, in accordance with the law.

6. When a final penal judgment is cancelled later on or when the grace is granted because a new fact or lately revealed proves that there was a miscarriage of justice, the person who underwent a sorrow because of this judgment will be compensated, in accordance with the law, unless it is not proven that the not-revelation in good time unknown fact is ascribable for him in whole or part.

7. No one cannot be continued or punished because of an infringement for which he already was discharged or condemned by a final judgment in accordance with the law and with the penal procedure of each country.

“The Choucq business” and rights of defense

The March 6th 1980, defending in front of the Magistrates' court of Quimper, some young people, the majority students, shown to have taken part in a violent demonstration of protest against a nuclear installation, Yann Choucq, young lawyer with the bar of Nantes, realizes that one of the demonstrators, who had however been stopped with his/her comrades, is not among the defendants. However, this one is the son of the Public prosecutor.

Me Choucq decides to make the remark with the court of it: “I do not want to believe that the family ties of young Mr. the Arm with a representative of the Parquet had an unspecified influence on the fact that it was slackened. ” This simple sentence will start a sharp polemic. The Public ministry rises and shouts with the Contempt of court. It takes requisitions in this direction against Me Choucq. The court takes note of these requisitions, but modifies them, estimating that there is, on the matter, Délit of audience within the meaning of article 25 of the law of December 31st, 1971, and condemns to Me Choucq for “this failure to the obligations which its oath” with a ten day old imposes to him suspension, applicable immediately. The lawyer, constrained to give up the bar, is at once driven out court.

This business will raise a considerable emotion among the lawyers, who see in this application of article 25 an intolerable attack to the right of defense . The mobilization of the profession is such as the government of the time decides, in the urgency, to modify article 25. It did it in article 66-2 of the famous law known as safety and freedom , voted the December 23rd 1980, but in a so awkward way that these new provisions will be censured by the Constitutional council, which, for the first time, proclaims that the right defense belong to this block of the Fundamental freedoms protected by the Constitution!

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