Friday, January 18, 2019

"Our freedoms are, as ever, in danger" (Éric Dupond-Moretti)

THE GALLERY - On 2 November 2017, Abdelkader Merah, whose defense you were defending, was sentenced to 20 years' imprisonment for "terrorist criminal conspiracy" and acquitted on the count of complicity in the murders committed by his brother Mohammed, the appeal proceedings will be held in spring. Social networks, continuous news channels, the Internet have largely contributed to the hysterization of the Merah trial, to a collective conflagration favored by the perverse nature of these social networks. But are they much more acute than those that tore apart France in previous decades, a France that the great cases of murder, attacks by leftist movements or robberies were dividing? And even further, under the Third Republic, what about the "affair" Alfred Dreyfus ...

ÉRIC DUPOND-MORETTI - It is true that in the late nineteenth and early twentieth centuries the fate of the officer accused of treason fractured French society in two. The "Dreyfusards" and "Anti-Dreyfusards" clashed for more than ten years, in an atmosphere that must have been very inflamed. What distinguishes the times? This one was undoubtedly more binary, putting face-to-face arguments certainly decided, but structured, visible, "appropriable" by the population. Today, opinions are fragmented into as many individuals who, via the Internet, social networks and television sets consider themselves legitimate to spread a comment, or even more often a judgment. On the other hand, and as a result of the natural mechanisms of globalization that multiply "everything" in time and space, everyone is asked to decide on an almost infinite range of subjects.

This double proliferation in all directions, extremely diffuse and therefore incarable, is problematic because public opinion struggles to fit into a clear framework, to gather and incarnate in a vision, a perspective. And so, many fundamental societal issues are not treated or vanish in the unspoken. The French jihadists arrested in Iraq, what fate should be reserved for them? Must we allow barbarians to judge these barbarians and execute them? Should we compromise with the repeal of the death penalty passed in 1981? Should we do everything to ensure that the law of France is applied to them? This is a subject, taken from many others, that thinkers and intellectuals choose to elude, delivering public opinion to itself.

Does this context of "all communication" indicate that today more than ever a guilt can be modeled, or more likely consolidated, by the pressure of the media, politics, opinion?

What is the principle of advertising? Subliminal insertion in the minds of consumers a desire, a necessity. And for that use methods, including hammering, thanks to which, consciously but also unconscious - this is all the force of striking the device - the "target" is let in, and therefore convince, the benefits of said desires or necessity. This rule applies just as much in the field of justice. When the wheels of this "all communication" coalesce to assert opinions, these take value of certainty in the minds. Moreover, these orientations, these influences, are of course never in favor of the accused. The mechanisms are well known: people called "victims" or the entourage of "victims" are the subject of interviews, which the journalist does not hesitate to present, directly or more skillfully, as " overwhelming » ; and as the media are one of the main sources of information ... the media and are engaged in a competition for overbidding, these assertions self-stimulate and spread like wildfire. And all this with semantic force. Example: this defendant denies the facts that are worth him to be indicted or incarcerated? " He continues to deny Will be commonly understood what public opinion will interpret, in essence, as follows:

" Despite the overwhelming nature of the testimony, he has not yet consented to tell the truth Which the journalist seems to be a keeper ... This infernal machine has undeniably won over. There is no longer enough distance and therefore discernment between some journalists and the subject they treat, television sets are invaded by pseudo-commentators, pseudo-experts, pseudoscientists propagating their certainties even when they are misleading , and so the viewers or the listeners think themselves entitled to become that lawyer, who - more surely - prosecutor. The responsibility of a media is to be a responsible mediator, a pedagogue, factual, distanced, cautious, honest and demonstrated information contributor to a responsible awakening of consciences; this discipline, all media and journalists do not subscribe, unfortunately.

"To misnamed things is to add to the misery of the world," said Albert Camus. This formula seems to apply particularly to the semiological drifts of some "commentators" of justice ...

Indeed. Commentators to whom, moreover, one can even associate the authors of fiction. One of my clients, Jean-Louis Muller, had been sentenced twice to twenty years in prison for murder On his wife Brigitte. On October 31, 2013, before the Assize Court of Meurthe-et-Moselle, the jurors finally acquitted him. Some time later, a famous and serious production company had the project of making a TV movie after which the viewers were invited to vote: Was the doctor guilty or innocent? What madness...

In almost all cases that engage you, the question of doubt, which benefits the suspect, is central. What the ethnologist Christiane Besnier dissects in her essay Truth on the court side (La Découverte) where she circumscribes the object of a court of assize not to a "moral certainty", but to a "rational discussion on the evidence" highlighting "the irritation of doubt". From your work, for thirty years, on the doubt, what teachings on its treasures and its pitfalls are you extracting?

The inalienable consideration which must be reserved for doubt is no longer sanctuary. The pressure of society, via, again, the sprawling power and the emotional impact of social networks and communication relays, strangely, but dramatically and irremediably, the perimeter of doubt. In the cases of pedophilia and, more broadly, of morals - where the victim's compassion reaches its climax - it suffices to accuse the truth of the accuser to triumph. Consider that jurors make an oath to betray neither the interests of the accused nor the "victim" ... and not that of the "complainant".

The paths that separate the accused from the victim, the accused from the convicted person, the plaintiff from the victim, are identical. And, of course, the victim's hegemony accelerates this relegation of doubt. Moreover, magistrates are moved by it, and even take offense at it. In his solemn address of 9 January 2013, the first president of the Paris Court of Appeal, Jacques Degrandi, had expressed himself. He recalled that the place of the victims had for a long time been insufficiently considered and that it had proved essential to put an end to this culpable negligence; on the other hand, and at the same time, he urged to be careful not to go to the opposite extreme, that is to say, not to give the victim a disproportionate place, the active role in the criminal proceedings having to remain exclusively that of the accused. At the risk, if not, that the latter, and therefore all the rules of justice, be relegated to the rank of accessories.

This society, which refuses vulnerabilities, hates the ambivalences, fragilities and gray areas that each one carries intrinsically within himself and that some express criminally, is the same one that tracks doubt and silence. Doubt and silence, this double treasure characteristic of your profession, and rarefied tyrannies of certainty and noise - including those used to plug the unspeakable face-to-face of oneself with oneself. In economics and in business, doubt is outlawed. Is its value more protected within the judiciary and in the exercise of the justice professions?

Nothing should be more ecstatic than to pronounce the acquittal in the name of doubt. But reality is different. Such advocate general is mocked by his colleagues because he requires on appeal the acquittal of a man sentenced in the first instance, this president sits down in tears (of pain) before the lawyers came to greet her because this case, the first one she has led, concludes with an acquittal ... The doubt of the judiciary is the questioning of the previous work of colleagues.

" It's not the doubt that drives you crazy, but the certainty Nietzsche stated precisely. Doubt is a "state" that is both more comfortable and more difficult to access. It can also be an unspeakable suffering. And the circumspection a priori and in fact to which he invites distinguishes the lawyers from their contemporaries. Because the first know too well that an accused can confess facts he did not commit.

It is in the detestation of the death penalty, and especially when it was pronounced against Christian Ranucci, that your advocacy began. The "radicalization of spirits" contaminates well beyond the French electorate: from Poland to Hungary, from Belgium to Austria, to Italy ... and even in "the" country that we believed Spectrum: Germany, which propelled the far-right party Alternative für Deutschland (Afd) to the third place in the Bundestag in autumn 2017. And what about Trump's America, Bolsonaro's Brazil, Erdogan's Turkey ... In a political context so overtaken by populism, in a framework of representative democracy so discredited and infected by the impulse and popular pressure, can we still say that the death penalty is irreversibly abolished?

The death penalty was no longer a subject. It becomes again a subject, in France in particular within the National Gathering. The idea that judicial progress would consist in an increase in sentences up to the restoration of the death penalty is not extinguished. On the contrary, it seems to find some resonance - the terrorist context is of course no stranger - as if such a hardening could guarantee the remission of the crime. Thinking in this way is heretical, and is a sign of a regression that sediments throughout society, whatever the social strata, religious origins, professional sectors.

Let us remember, in April 2018, this implacable investigation, "The disturbing radicality of a minority of young people", published in The world and conducted by sociologists Anne Muxel and Olivier Galland among 7000 high school students aged 14 to 16 years. What did she reveal? A quarter of the students questioned do not fully condemn the attacks against Charlie Hebdo and in Bataclan, 80% consider that we can not make fun of religions, 68% think that the media did not tell the whole truth about the attacks of 2015, a third think it is " acceptable in some cases to participate in a violent action to defend his ideas "... Is" radical temptation "among young people questionable? " Adherence to religious absolutism, religious violence, political radicalism in opinion or deed, and a new form of information radicalism Is it a view of the mind in those who are sensitive to conspiracy theories? I am not a reader of Charlie Hebdo, I am not sensitive to the humor that is developed there, and even I sometimes find it disrespectful. Shock deliberately is not helpful. But the right to blasphemy exists. I

He exists, and he is a true right. One of the lessons of this vast sociological study is that a high proportion of young people abdicate this freedom of blasphemy, according to an interpretation that can be summarized as follows: " The victims of Charlie Hebdo probably did not deserve to be so massacred, but they still have a little sought In other words, around the religious fact is the idea of ​​a scale, a hierarchy of victims, depending on whether they would be totally innocent or that they would have participated in provoking their drama. This creates confusion and causes chain reactions that, in the end, awaken the ultimate question of the death penalty. After all, if we distinguish the victims, if we classify the causes of the massacres, why not push the reasoning to the extreme, and then consider that some of these massacres legitimize the death penalty?

Especially since this study was published concomitantly with another one, "The French and the prison", apparently completely distinct, but which reinforces the concern that must be put on the dispositions of the public opinion with regard to the delinquents . Directed by the Jean-Jaurès Foundation in partnership with Ifop, it reveals that the French are demanding both harsher penalties and lower means for prisons. Half of them believe that detainees benefit from " too good conditions of detention »; in 2000, a comparable study conducted by the CSA Institute for Release limited this proportion to 18. For 49% of the French, the prison must primarily "deprive of freedom", 45% of them believe that it must primarily prepare the reintegration of prisoners in society, 37% support the idea to offer greater access to prisoners; to these three items, in 2000, they were respectively 21%, 72% and 77% ... And the interpretation is all the more vertiginous as a majority of French people are fully informed of the deterioration of the conditions of detention and in particular overcrowding. According to the International Prison Observatory, as of 1 January 2018, 68,974 prisoners shared 59,765 places.

In the general indifference, Antonio Ferrara, "the king of the beautiful," was shut up for seven years in solitary confinement, without even the authorization once to touch the hand of his mother; in general indifference, the prisoners are crammed into cells of five square meters, in unbearable proximity. Yes, in general indifference. If it had been bonobos, what would not have heard in the street, media, social networks! In short, everything contributes to being deeply concerned about the fate that a part of the population wants to reserve for the prisoners.

Certainly, to date, the implementation of the worst assumptions is blocked by laws, French and European, drastic, and a priori inviolable. We are bound by international treaties that are of greater value than our Constitution. But what would happen if, in a domino phenomenon of a large scale, some political dykes, then legislative, even constitutional, came to give way under popular pressure contaminating the political class and all the European countries? Nothing must be irreversibly ruled out.

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