Main trade union of the profession, the USM (Union of magistrates) was recently moved by the criticisms made by the General Controller of places of deprivation of liberty (CGLPL) Dominique Simonnot against certain magistrates.
According to her, they would refuse sentence adjustments and would not be «seriously» interested enough in the chronic overcrowding of French prisons.
«Sending people behind bars when you know the filthy conditions of certain establishments, it’s still special, isn’t it?» Asked Ms. Simonnot to AFP.
The USM cries, she, to the false trial. «We are criticized for being the main providers of prison overcrowding, but the reality is more complicated: we don’t manage the jails and we have no influence on what happens inside the detention centres. detention», says its secretary general Ludovic Friat.
However, the debate is not entirely closed.
– Awareness –
If it is indeed the executive which has control over the state of the prisons, the judicial judge is constitutionally the only one who can decide on a placement in prison, at the time of a conviction or during an investigation when a suspect is remanded in custody.
«We can’t hide behind our little finger: everyone has to question their practices. But without a clear directive, the judge is a little left to his own devices», explains to AFP Alice Maintigneux, president of the National Association of Sentence Enforcement Judges.
In law, the regulation of the prison population is not part of the criteria that the judge is required to examine when making a decision depriving of freedoms.
«We have in mind the state of the prisons when we decide and the colleagues are more or less sensitive to the question. But legally, this criterion is not imposed on us», confides to AFP a judge of freedoms and detention (JLD) in the south of France.
Since 2020 and the condemnation of France by the European Court of Human Rights (ECHR) for the state of its prisons, case law has slightly moved the lines.
In July 2020, the Court of Cassation made a change of course by deciding that people in pre-trial detention could now invoke the unworthiness of their conditions of detention to request their release.
«It caused an awareness even if in fact, the conditions were very restrictive and that did not change much», estimates Julia Schmitz, lecturer in Toulouse.
– «Unworthy» conditions –
The legislator took over in April 2021 by introducing into law the possibility for all detainees to seize a judge so that he puts an «end to these unworthy conditions of detention», including by ordering their release. Provided, however, that the allegations are «detailed, personal and current».
Gathering such elements is not within the reach of all detainees and, above all, some magistrates are still reluctant to release detainees for fear of being accused of laxity. «Whatever we do, there is a part of public opinion that will blame us for it,» sighs the JLD when interviewed by AFP.
To ease the pressure on judges, some argue for an automatic regulation mechanism: when a prison reaches its maximum capacity, no detention can be ordered without another prisoner being released at the prior.
This path, which is among the recommendations of the Estates General of Justice, is inspired by what happened at the height of the Covid crisis.
To prevent the epidemic from spreading in prison, detainees at the end of their sentence had benefited from adjustments and the prison occupancy rate had fallen below 100%, against nearly 118.3% on August 1.
However, such a mechanism is not likely to emerge so easily. «It would require immense political courage», notes Alice Maintigneux, «and it does not seem to be in tune with the times».