The citizen facing the repressive apparatus of the state
Before beginning the in-depth discussion of this complex, so delicate and sensitive, I must emphasize the importance of a ministerial decree signed on November 16, 1976 and by which the contact of the litigant with the judiciary was the subject of humanization measures.
It was a great novelty – something never seen before.
For the first time, a political authority made the Judiciary understand that it is in reality a public service and not an almost mystical entity that requires jitters, ecstasy and genuflection.
You know that the defendant does not carry in his trusting heart everything related to justice because, each time he is summoned, it means for him a major disturbance, a stress, an unpleasant thing. We don’t invite him over for tea or cookies.
He goes there to be heard on a false step or to suffer in divorce for example an indecent search by a third party in his intimate and private sphere.
A summons to court is thus always on the verge of aggression.
What worsens the feeling of insecurity and antipathy of the citizen is that he meets locals with transvestites, who speak a sui generis language difficult to grasp and who behave in a way out of another age. It was therefore necessary to make this device more welcoming, less fierce, closer to the people. It was done on November 16, 1976. Since then, this service has received tens of thousands of litigants. The only number of free consultations for the year 2002 was 7534, which demonstrates the absolute necessity of this service.
Here are the three articles that pursue the demystification and also the demythification of a device which in turn was always implanted on the double pivot of authority and mystery:
Art. 1st
A reception and legal information service is established under the authority of the Minister of Justice. The mission of this service is:
to welcome individuals and direct them to the competent services, by giving them the necessary technical information and means;
to inform individuals in general of the extent of their rights in relation to the problems raised and on the ways and means to achieve them;
to hear their complaints about the difficulties encountered in the implementation of their law and to propose the means to obviate them.
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Let us now enter the palace where, a welcome relaxes the contacts which always remain harsh and bitter.
In the very delicate and sensitive area of law enforcement, the legislative work accomplished over the past 20 years has been revolutionary.
It should be remembered that the criminal codes – the Criminal Code and the Code of Criminal Procedure – date from the 19th century and that they have not known, apart from a Blum law [1] and the suspended law [2] , no changes that are worth noting.
These codes were found under the ideology “Crime and Punishment”.
The traditional functions of the criminal justice system were atonement for fault and intimidation.
The criminal law constitutes the most sensitive intervention, the most fraught with consequences in the life of the individual, calling into question his material and social existence, his freedom, his very life… It is necessary to surround this right which translates a primary and violent reaction of the society of important guarantees for the individual [3].
Over the decades and especially under the influence of new sociological and anthropological knowledge, the criminal justice system gradually detached itself from the criteria of atonement and ended up adopting that of individual and social efficiency.
The criminal law was redesigned according to three main principles:
– respect for human rights
– respect for the rights of the defense
– individualization of punishment.
In other words, he was in turn put under the new imperatives of humanist positivism.
This is not laxity. I would have the opportunity to return to it after having developed a reality that is close to my heart.
We are all acrobats.
All of us are incalculable, fallible, imperfect.
All of us are for ourselves and for the other an abyss.
None of us are aware of the disturbing memory codified in our genes, whose countless stations and landmarks are lost in the mists of time.
None of us has the right to say: this will not happen to me!
Men are not creatures of reason, obeying abstract laws. They are not demigods. They all have their weak points, they are all crazy by some side.
In his will: Letter to Greco, the great Greek writer Nikos Kazantzaki writes: “There is darkness in us, multiple floors, hoarse cries, hairy and hungry beasts”.
Man is able to do what he is unable to imagine. Its head crosses the galaxy of the absurd (René Char, Fury and mystery; Feuillets d ‘Hypnos, 1907 -1988).
Who has been able to cross, who has dared to cross the primitive darkness that extends under his mind, who has the courage to lift the hatch and see?
A tale of One Thousand and One Nights relates that the Earth and the animals trembled on the day when God created man.
In front of all these arrogant and innocent people who believe they are safe from the jolts and earthquakes of the interior countryside, I would like to write this aphorism by G. Ch. Lichtenberg: “Wenn du die Geschichte eines großen Verbrechers ließest, so danke immer , ehe du ihn verdammst, dem gütigen Himmel, der dich mit deinem ehrlichen Gesicht nicht an den Anfang einer solchen Reihe von Umständen gestellt hat “.
All these reflections are the basis of the new ideology which is at work in repressive law.
A major concern now inspires the legal practitioner and the legislator. If it is compelling to protect society from delinquency, it is equally necessary to reintegrate the offender into society. Because it is by reintegrating the offender into society that we protect him most effectively.
Everything must be done to re-socialize the condemned. To succeed, we must avoid isolating it in a dehumanizing rigor. Let’s not forget that a majority of offenders go out after a few years. It all depends on the offense. We must therefore welcome them at the exit and avoid that during the time spent in incarceration, they are no longer slumped and barbarized.
In short, if it will always remain true – unless there is a change in the human race which does not appear for tomorrow – that the State must crack down on those who compromise public security or that of individuals, it will an equally compelling future to prevent, the best prevention remains the humanization of treatment of the one who failed.
“If already”, said a Byzantine mystic, “we cannot change reality, let’s change the eye that sees it”.
Hence the need for a prison on a human scale. That of Grund was disgustingly unworthy. It was still a penal colony.
KRIEPS, who had known this sinister place during the Nazi era, was not afraid to confront public opinion and to vote against and against all the funds necessary for the construction of a modern prison establishment. This was done in three stages: laws of March 19, 1977, December 5, 1979 and August 19, 1980.
It is certain that, on this point, he was ahead of public opinion. If she had been consulted, she would have declared herself for an aggravated Grund. Vindictive instincts are extremely strong in all of us.
Schrassig has become cramped. In 1976 the number of detainees was 167. It has grown steadily since.
On September 16, 1991, there were 324 inmates – 34.8% of whom were drug addicts. Today, there are 578 detainees, including 19 women.
On June 20, 1979, our legislator abolished the death penalty.
Another delicate question, which stirs and will continue to stir consciences and give rise to the most partisan remarks and the most curious incongruities.
Again on this point, the legislator was ahead of the social mold.
This punishment rarely gives rise to calm and thoughtful observations.
The law of retaliation or better that of reprisals (Wiedervergeltung) has not freed our brains.
It is infinitely easier to successfully develop the thesis for the death penalty in public than the opposite thesis.
I am convinced that the abolition of this inhuman punishment was in all the countries of Europe and America the work of a handful of courageous intellectuals who had enough presence and charisma to impose their point of view. .
There is a paradox. At the same time that public opinion continues not to hate capital punishment as an exemplary punishment (for the majority of people blood still calls blood), the authorities called upon to apply it have been increasingly reluctant. Our Belgian friends, who in terms of abolition are behind us by 12 years, have, during the twentieth century, applied the penalty only once in 1917, if we disregard those shot after the Liberation for made of collaboration. To cut the chief in 1917 from a soldier convicted of murder, the guillotine had to be borrowed from the French.
Similar situation with us before 1979.
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Abortion
On November 15, 1978, the new abortion law was promulgated. Henceforth, there is no longer an offense if voluntary abortion is committed under the influence of a situation of distress. Nor is it an offense if it is practiced during the first 12 weeks, provided there is a risk to the physical or mental health of the mother or else there is a serious risk of seeing the birth of a seriously handicapped child.
Since 1978, Luxembourg has not had a trial for the offense. In Germany, the discussion continued fiercely between opponents and protagonists of abortion. In France, it rebounds periodically.
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A very large law was passed on December 6, 1976. It is the Rehabilitation Law.
Finally, it has become possible to put an end, under certain conditions, on the part of a convicted person, of all the effects of the conviction – all the incapacities resulting from it – the record will no longer bear any trace of it.
This is a moment of humanism.
To give someone back their criminal virginity is to offer them the best chance of re-socialization and it is to give society maximum guarantees against recidivism. Ability to restart from zero; to be able to deny this terrible Roman adage: “Facta infecta fieri non possunt”; giving back to someone one’s possibilities is what must be considered a great conquest on the front of humanism.
Since the law was brought into force, the Indictment Chamber has heard about 100 pardons. She declared most of them founded. Over the past three years, 43 applications for rehabilitation have been made.
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On 16 December 1976, a grand-ducal regulation came to humanize the organization of the criminal record. The criminal record that the offender was dragging after he was released from the criminal record was eliminated, if not significantly reduced.
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There was the law of July 26, 1986, relating to certain modes of execution of custodial sentences (fractional execution – stay – liberty – penal leave and suspension of sentence – early release) and giving the magistrate called to apply the sentence possibility of individualizing the punishment as much as possible.
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By a law of June 16, 1989, the Code of Criminal Procedure was rewritten in its essential parts.
All the provisions of this text are intended to protect the presumed innocent against the arbitrariness of power until the sentence of conviction sunk in res judicata.
Let’s not forget that the accused is not the convicted person – his guilt remains to be established …, but already the mere fact of being charged, even in preventive detention, makes him a lonely man, deeply humiliated. He is alone in front of them who not only are all, but have, unlike him, to investigate, a complex and sophisticated device: the police, the investigating judge. It is necessary to avoid that this man, who is only at the beginning of a procedure and whose acquittal outright if not for reason of doubt is possible, is not crushed by the ruthless machine which will start up .
There is a great danger of seeing arbitrariness occurring at all stages of the procedure. The rights of the defense must therefore be particularly strong, especially at the start of the proceedings.
This will now make it possible to have a lawyer assist you during the first interrogation by the police – this is a great innovation. It was during these interrogations, which were carried out before in the absence of the defender, that irreparable odds could be committed. Under arrest, intimidated, shocked, deprived of liberty, enticed by conditional promises of release, it could happen that the accused allowed himself to be led into false confessions, only advanced for peace and provisional liberty.
I will be told that these texts go too far. No. They never go far enough, because they are hardly in the process of being applied when there is very quickly a badly turned mind (they are legion) to confiscate the real scope. Indeed, the anti-defense reflex is so strong that it reacts constantly on all levels. This is a distressing reality, easy to verify by daily practice. Interesting to note in this context that the Judiciary in Luxembourg did not discover the main principles enshrined in the European Convention on Human Rights (C.E.D.H.) until around 1990. 15 years ago, it was still literature! And yet the C.E.D.H. has been national law for half a century.
The law of 89 declares the investigation secret and prohibits anyone except limited exceptions listed from spreading the file of the accused to the forum. Severe penalties now punish this new offense. It is unbearable that a person charged with an offense not yet established sees, following indiscretions, his file discussed in the press, either because a narcissistic judge could not suppress the desire to put himself at the center of the public attention, either because a clerk or a lawyer had neglected the duty of silence and reserve. Once the press picked it up, the person concerned often suffered irreparable damage. Remember the Roman saying: “Semper aliquid haeret”. I am and continue to remain of the opinion that the press has no place at the palace. The individual risks too much.
The individual obviously takes precedence over information. Press freedom stops where the substantive rights of the individual begin. The accused must not become premature (I mean before a decision finding him guilty), the prey of feeling vultures. The role of the press in the palace is not to throw the misery of an individual on public pasture, but to control with critical sense (it is still necessary to know how to do it, which is not the case everyone) if the repressive apparatus functions in accordance with the rights of the defense and the rules of democracy. This is, moreover, the historical and still the main and exclusive reason why the hearings are public. Those who do not understand it will understand it no later than the day they are indicted for a fact for which they are not answerable.
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A law of June 17, 1987 came to give a more human dimension to the so-called assize procedure. Since then, Luxembourg has had no more show justice; the Assize Court with its sui generis scenario and its dubious peculiarities is no more than a memory. Henceforth, an accused person who appears before an ordinary court has the right to appeal. Formerly, the means of appeal (except the cassation appeal) were excluded against the judgments of the Court of Assizes. By the introduction of the appeal, the possibility of judicial error is greatly reduced.
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In other respects, the law of repression was strengthened. Thus, in order to protect life as much as possible against drug dealers and money launderers, an extremely harsh law was brought into force on July 7, 1989.
Article 8 gives financial institutions a hard time.
The wording is broad and thus encompasses a lot of assumptions.
Will be punished with imprisonment from 1 year to 5 years and a fine of up to 50 million those who knowingly or through ignorance of their professional obligations assisted in any operation of placement, concealment or conversion of the proceeds of such an offense.
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Conclusion
The years 70-80 rang in fundamental areas of law the death knell of the Middle Ages in Catholic Europe and in particular with us. And let’s be clear … the end of the tutelage of Catholic ideology, which was the driving force behind the laws under discussion. Where this ideology has remained strong – as in Italy, Spain and Ireland – the death knell is barely audible. The divorce law in Italy remains, although modernized, devoid of generosity and offers citizens only very limited possibilities of disposing of their own person.
The reform work accomplished here is to the credit of certain courageous, strong personalities, rectangularly built in body and soul, having the required charisma, having not been afraid to swim against the current and, among them, Robert KRIEPS, the great, great reformer of our laws. No matter what people say, the revolution is not the result of a change in public opinion, which seems to me to lag behind certain innovations. Nor is it the fruit of reflection within political parties. In parties, we don’t think that far; thinking usually stops at what is profitable. As proof: secular procrastination and drowsiness which weighed heavily on the life of the Codes.
In parties, we know indeed that matters like those debated here are not heavy with electoral effects (the opposite is true) and that public opinion, which is mostly of all opinions the most execrable, does not shudder when it is brought into contact with these exercises which it considers too marked by the intellectual. Public opinion was drawn into the whirlwind of reforms without having really had time to turn around.
Be that as it may, whether morals have followed the laws or are still behind in legislative work, one thing is certain and I am delighted, it is that we have been living for 30 years the end of ‘an era that we have finally been able to step through thanks to KRIEPS and a few others the threshold of a new era of civilization.
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Gaston VOGEL
[1] Loi sur l’institution contradictoire 19 novembre 1929
[2] Loi sur la condamnation conditionnelle 10 mai 1892
[3] Pescatore – introduction à l’étude du droit
