The Code d’Instruction criminelle, 1808

Author(s) : ZACHARIE Clémence
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Of all the codification processes that France underwent under Napoleon, the process that led to the Code d'Instruction criminelle of 1808 is probably the most remarkable, for a number of reasons. It was the product of a long maturation process, which united Revolutionary principles with customs developed during the Ancien Régime and codified by the Ordonnance de Saint Germain en Laye in 1670. The Code d'Instruction criminelle was thus a combination of principle and practice, made all the more remarkable by its longevity: indeed, it was not until 1958 that it was repealed. Its formation was not, however, without difficulty and the theoretical issues that it raised often brought discussions to a stalemate.

Criminal procedure was one of the key issues in the uprising against the monarchic regime in 1789. The royal ordinance of 1670 was notable in that it codified procedures and sought to organise the criminal system and address the abuse and dysfunctions of a system dictated by custom. Nevertheless, clear problems still remained, particularly regarding the often arbitrary nature of magistrates and the severity of the system. The second half of the 18th century also bore witness to numerous legal cases which revealed flaws in the system. These revelations often led to the political involvement of some of the great thinkers of the time who saw in them the perfect opportunity to express their humanist ideals. The Calas Case in 1761, followed by the Sirven Case in 1764, were simply the beginning of a number of legal scandals that marred the end of the reign of Louis XV as well as that of Louis XVI. Added to this was the debate prompted by the publication in 1764 of On Crimes and Punishment, written by Cesare, Marquis of Beccaria-Bonesana, a Milanese nobleman. Beccaria was a great reader of Montesquieu and the French philosophers, and On Crimes and Punishment condemned the criminal procedure, and was lauded by Voltaire and other important thinkers of the period. During the reign of Louis XVI, the opportunity was seized to abolish certain injustices, such as the question préparatoire (abolished 1780) and the question préalable (1788) [two inquisition techniques, ed.] as well as the establishment of certain rules, including the motivation des sentences (1788). Despite the humanising of the criminal procedure, which in certain cases occurred just a few days before the Conseil's convocation of the States General, the penal procedure continued to be heavily criticised in the cahiers de doléances [registers in which the assemblies designated to elect Députés noted their grievances, ed.]. Certain changes demanded in 1789, such as the abolition of torture (despite the reforms in 1780 and 1788), a more-developed conseil, the abolition of the lettres de cachet [sealed letters ordering the limitation of someone's freedom, such as imprisonment, exile, or house arrest, ed.] and the introduction of the jury in criminal procedure, would not be fully realised until the codification in 1808.

Precedents to the Droit intermédiaire

The revolutionary period and the period of Droit intermédiaire that resulted encouraged serious reflection on the criminal procedure. This reflection was aided by the advanced competencies of the members which made up the various assemblies involved in the discussions. These assemblies became procedural hot houses for several important texts that would influence the drawing-up of the Code d'instruction criminelle in 1808, not only as sources of inspiration but also, more importantly, as foils.
The laws of 8 October and 3 November 1789 which brought provisional reform to the criminal jurisprudence were the products of the Comité pour la réforme de la jurisprudence criminelle, a committee that featured several illustrious names, including Jacques-Guillaume Thouret (the committee's rapporteur), François Denis Tronchet and Guy-Jean-Baptiste Target. These were followed by a reform of criminal jurisdictions begun in 1790. However, it is above all the laws of 16-29 September 1791 and of 29 September-21 October 1791 that would organise criminal procedure, establishing most notably the juge de paix's considerable power and instituting the jury populaire as an essential protagonist in the adjudication process. The juge de paix, elected from the people, effectively became the keystone in the système d'instruction as the juge d'instruction no longer intervened unless a) the juge de paix's requested it, b) the juge d'instruction had been summoned by private individuals or c) if he was involved in the case ex officio.
Dénonciation civique thus became the cornerstone of procedure, associated as it was with the idea that it formed an integral part of citizen and civic responsibility. Criminal procedure became public and an illustration of the sovereign people's appropriation of a state-controlled mechanism. This mechanism was no longer in the hands of an autonomous state power and the accusateur public and commissaire du roi, forerunners to France's modern-day procureur, could not intervene without the juge de paix's instigation. A state law suit as such was no longer possible.
The popular appropriation of the penal procedure occurred at each stage of the latter and is characterised by the introduction of a two-level jury. First of all there was the jury d'accusation which was given the responsibility of accepting or refusing the charge. Secondly, the jury de jugement would then decide to accept or not the facts justifying a conviction. In the case of a guilty verdict delivered by the two juries, the judges would then give their ruling on the sentence to be applied.
Two texts would later modify this procedure. The Code des delits et des peines (Code of crimes and punishments) of 3 Brumaire An IV (25 October 1795), written by Merlin de Douai, did not differ drastically from the system instituted by the 1791 laws. The Code however limited an individual's right to instigate criminal proceedings. The principle of dénonciation civique remained, but citizens were no longer permitted a direct referral to the jury d'accusation. The procedure could be referred to the juge de paix who was nevertheless free to decide on whether or not to pursue the accused individual. Above all, however, the first articles of the An IV text recalled the distinction between a public suit and a civil suit, and between proceedings brought by the State in the name of the sovereign people concerning breaches of public order, and demands for compensation and damages brought by an individual. These articles lead to the restoration of a public ministry, which was re-established by the law of 7 Pluviôse an IX (27 January 1801). This first major penal reform during the Consulate echoed the penal measures set out in the Constitution of An VIII which instituted a public prosecutor, a government Commissaire, for every criminal tribunal in the département (art. 63). The Pluviôse law also accorded every Commissaire a deputy prosecutor for each arrondissement. These Commisaires had the role of procureur de la République, and were responsible for the police judiciaire [criminal investigation police, ed.] and the investigation leading up to criminal proceedings. The juges de paix became nothing more than assistants to these representatives of the State to whom they were required to answer and it was the Commissaire who assigned the juges d'instruction to their respective proceedings, the jury d'accusation no longer being routinely summoned. The An IX text thus signified a return to a pre-revolutionary reforms system.

A chaotic drafting process

The fact is, the Revolutionary law had very quickly revealed its limits. Since justice lay in the hands of juges de paix and members of the jury, in effect it resided completely with non-jurists. Though indeed elected by the people, these men were frequently incompetent. What is more, from the beginnings of the Consulate, Bonaparte criticised the criminal system for its clemency and dysfunctions linked to the recruitment of the personnel involved in the system. He thus very quickly decided to write a criminal, correctional code that would deal not only with criminal procedure but also with the very foundations of penal law. Like its predecessors, the Code d'instruction criminelle followed the same ‘classic' drafting process of consular and imperial codifications. A decree of 7 Germinal An IX created a commission, composed of Vieillard, Target, Oudart, Treilhard and Blondel, which was charged with the task of drawing up a comprehensive penal code. The commission's work took several months, and an immense draft of 1,169 articles was presented in Messidor An IX. It picked up the system laid down in the Pluviôse An IX text, maintaining notably the principle of adjudication by members of the jury. However, a consultation with magistrates slowed down considerably the codification process. Members of the Cour de cassation, the Grand juge ministre de la Justice, the courts of appeal and the criminal courts were all required to give their opinion on this reform. Heated debate followed, revealing the magistrates' animosity for jury members, whom they criticised as too generous, indulgent and timid, qualities that in every way damaged the juries' effectiveness in pursuit of justice. A significant number of jurists (including important figures such as Siméon and Portalis) intimated that they sought to re-establish the system outlined in the Ordonnance of 1670 though adding the principle of defence counsels and the public nature of proceedings.
As a result, the review of the project by the legislative section of the Conseil d'Etat, which took into account the issues raised during consultation with magistrates, was a long and drawn out process, lasting from May until December 1804. A true consensus was impossible to obtain, owing mainly to the question regarding juries, and work was suspended. Napoleon thus took the decision to make a clear distinction between criminal procedure and the penal code, and to create two distinct and separate texts. Work on criminal procedure was not resumed until January 1808; discussions were torturous but eventually resulted in the Corps législatif's adoption of the Code d'instruction criminelle in two laws dated November and December 1808.

The major principles of the 1808 Code

The Code d'instruction criminelle (Code of criminal procedure) was a response to very clear aims set out by Napoleon at the start of the Consulate (the creation of a more authoritarian and effective system of repression) and, as a result, was a very political construction. Despite this, the Code was, for the most part, a happy combination of ancien regime legal principles and of those inspired by the revolutionary period. It was thus a work of remarkable stability and constituted the basis for modern penal procedure in a number of ways.

First of all, the Code was an institutional code that reorganised most notably prisons, an aspect of the reform that is often overlooked, as well as certain law courts. Prison reform was considered from the very beginnings of the Consulate and a text from 1801 created maisons centrales interdépartementales [detention centres covering a number of départements, ed.] which were intended, amongst other things, to hold prisoners as punishment for their crimes. At the same time, a decree issued by Chaptal which dates from the same year reorganised the prisoners' daily lives: diets were improved through an increase in daily rations and living conditions developed with the addition of heating in some cells. As well as these changes, prisoners were also encouraged to work to earn some revenue that would also contribute to a better standard of living. The 1808 Code continued this work. A decree by Montalivet dating from 20 October 1810 was concerned with the creation of prisons. The decree made provisions for the installation in each arrondissement of maisons d'arrêt [holding centres, ed.], located near to the courts, which would house the accused. The decree also planned for the creation of maisons de justice. The goal of these maisons was to house separately the accused and the condemned; prisons at the start of the 19th century were in a terrible state, mixing those already condemned and those awaiting trial together in horrendous squalor and a complete lack of privacy.

These establishments were placed under the direct control of préfets, who were responsible for their correct functioning, their hygiene and their security. To this end, they were also required to visit the sites at least once a year. The préfets were also responsible for the staffing of the establishments. The 1808 Code also instigated the organisation of these penitentiary centres by départements, which would lead to their better management. Monitoring of the detainees was thorough in order to ensure that detention could not be considered as arbitrary; incarcerations required a mandat express from the juge d'instruction or from the president of the cour d'assise. The juge d'instruction was also required to visit the accused every month and the same was expected of the president of the cour d'assise at each court session. Responsibility for costs and the prison budget was transferred to local authorities. This transferral and the rationalisation of the incarceration process as a whole were realised by turning prisons into maisons de forces, facilities in which detainees were expected to work. Crime was thus put to work in the name of industry. It was hoped that these maisons de force would replace the dépôts de mendacité [workhouses aimed at reintroducing vagrants and beggars into society, ed.], but this was unsuccessful, and it was even necessary towards the end of the Empire to build further dépôts. These newer maisons did not however challenge the existence of the penal colonies or the prisons d'Etat.

As well as humanist prison-reform, the 1808 Code also reinforced the principle of the tribunaux spéciaux, introducing definitively one of the most controversial practices of the Napoleonic penal system. The law of 18 Pluviôse An IX had established these “special courts” as a means of clamping down on vagrancy as well as crimes and offences committed by beggars and vagrants, criminal evasion and seditious gatherings. These courts were located in the Grand Ouest [greater western regions of France, notably the Vendée, ed.], were intended to be temporary and only put in place if the Government judged it absolutely necessary. What made them exceptional was the absence of a jury de jugement; the jury's role was fulfilled by professional judges, assisted by military personnel. It must be said that the creation of tribunaux spéciaux had also been envisaged in the law of 23 Floréal An X; crimes of forgery and falsification of public accounts then fell under the remit of these tribunaux, here too the makeup of the tribunal was decided in an extra-legal way. The existence of these tribunaux d'exception was confirmed by the sénatus-consulte of 27 February 1804 which allowed the Government to suspend juries in départements, should it be deemed necessary. The 1808 Code thus did not create anything. However, far more seriously, it did institutionalise the principle of ‘exceptional justice', bringing with it all the risks of arbitrary judgement. The participation of military personnel, within entirely-capable tribunaux, in the judgement of civilians for offences other than war-crimes, went entirely against the principle of justice that had been set down by the Revolution. In 1808, the tribunaux spéciaux became special criminal courts and also became permanent. The law dated 20 April 1810 perpetuated these institutions and began their reorganisation.

The 1808 reform of criminal procedure was a death sentence for juries. Criticism of juries has already been discussed. From the very beginning of the Consulate, the distrust of those in power regarding the juries led to the executive power exerting greater control over their composition. Juries also lost the right to hear witnesses during the indictment process, and certain offences were even decriminalised in order that they be judged by tribunaux made up of professionals and not by non-professional juries. The Code d'instruction criminelle of 1808 was in effect the jury's execution. Jurys d'accusation were done away with definitively and their responsibilities and duties were transferred to a special chamber of the cour d'appel, called the chambre de mise en accusation. Magistrates were once again head of the prosecution and were thus involved in the strengthening of the principle of state action in penal matters. With regards to the jurisdiction of adjudication, the law dated 9 December 1808 containing titre II of livre II of the Code d'instruction criminelle, maintained the principle of adjudication of crimes by a popular jury, but added a number of special conditions, notably concerning the choice of jurors that made up the jury. The préfets established a list of jurors selected from collèges électoraux, which were made up of local elites. This list was then reduced by the president of the cour d'assises, from which twelve jury members would be designated if and when required. Proceedings were conducted orally, publically and openly, and the accused was assisted by a lawyer. The jury would give its verdict and the sentence would be fixed by professional magistrates.

The system as it was set down in 1808 is roughly that which exists in France today. For while the tribunaux d'exception have long since disappeared, the criminal trial was a reaction to the demands placed on it by the Empire and was founded on sure principles that are still today considered the mainstay of penal justice. In effect, it was the 1808 Code that introduced the distinction between crimes, offences and misdemeanours, thus justifying the adaptation of the adjudication process to suit each violation and infringement of the law. It is also the 1808 Code that made the distinction between the lapse of a sentence and the lapse of state action, laying the foundations for a judicial system concerned with social appeasement. Finally, and most bizarrely, it was also the 1808 Code that brought to the fore the necessity for a developed rehabilitation process, a responsibility that was given to the justice minister.

As surprising as it may seem, the Code d'instruction criminelle is a system that laid the foundations for a very modern judicial system, reconciling the monarchic precedent with Revolutionary theory. It also consolidated the Emperor and his authoritative vision of criminal procedure. The fact remains that, in many respects, the Code d'instruction criminelle was one of the major successes of the consular and imperial periods.

(Tr. & ed. P.H., H.D.W., December 2008)

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