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Friday, September 8, 2017

A LETTER FROM A FRENCH LAWYER ABOUT THE "PRESUMED GUILTY" LAWS OF FRANCE


(for the complete article, please check Amb. Bobi Tiglao's latest column at http://www.manilatimes.net/gall-business-reporter-turned…/…/)
Cher Monsieur,
I am of Filipino origin and a dual citizen (French-Filipino). I have been a member of the Paris bar since 2014.
I entirely agree with your views regarding presumed-guilty laws in France. I am amazed how accurately you expressed the general opinion of majority of lawyers in France, especially those who are well-known in French criminal law.
When I heard President Duterte utter those statements about French laws, I was not surprised. I was even amazed that our President knows the general sentiment about presumption of guilt in France.
I knew the President was referring to fighting terrorism.
By all means, the presumption of innocence exists in: (1) the preliminary article of the “Code de la Procédure Pénale” ; (2) Déclaration des Droits de l’hommes et du Citoyen du 26 août 1789 ; and the European Convention on Human Rights (1950).
But that is only in theory.
In real life here in France, a suspect is already seen by the police, the juged’instruction and the prosecutor (parquet) as a guilty person. We lawyers have to find evidence for his/her innocence. This is the general trend here for more than three decades. French lawyers criticize this regularly in media and in legal circles.
Moreover, I quote your articl : “Also, under the recent French anti-terrorist laws, a suspect involved in terrorism, drug trafficking or organized crime cases can be detained incommunicado, without being charged in court for as long as four days.”
Your affirmation is correct. We call that “garde à vuedérogatoire”. For that 96 hours, the suspect could not be charged, the suspect could not even see a lawyer. How can he/she be seen then as innocent?
Besides, the French legislature passes new laws every year regarding stricter measures in fighting terrorism. There is always a new law every year.
Lastly, France claims to be the “cradle of human rights” because of the Declaration of Human Rights of 1789. But, I have heard from several famous French criminal lawyers that that assertion is not really true.
Robert Badinter (famous lawyer, father of the French abolition of death sentence in 1981, former justice secretary, former president of Conseil Constitutionnel, former senator) famously said : “La France est le pays de la Déclaration des Droits de l’homme et du citoyen, mais la France n’est pas le pays des droits de l’homme et du citoyen”
(France is the country of the Declaration of Human Rights, but it is not the country of human rights.)
In my three years of practice, I tend to agree with them and upon my short experience, I tend to live that in my practice.
In legal practice, theory is one thing, practice is another thing.
That is why, I can only see one thing in (French UN human rights special rapporteur Agnes) Callamard’s (statements on the Philippines): hypocrisy.
Here are just my views regarding the accuracy of President Duterte’s claims regarding French criminal procedure.
Pardon my English as I am not well versed in this language.
Emmanuel Pusung

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