Friday, November 15, 2019 ((rezonodwes.com)) – Apart from any interference in the case between the Haitian State and the Société Sogener SA, the words of Mr. SAINT-JUSTE on criminal prosecution and qualification Penal Code of an offense must appeal to the attention of any criminal lawyer or even any academic.
Indeed, the brilliant lawyer of the Haitian State recalled tonight on radio Mega (103.7 FM) that the Haitian judicial system is devoid of effectiveness. Also, as part of the defense of the interests of his client, he said that unlike the French law enforcement system the Haitian legislator establishes the principle of the legality of prosecutions with reference to the convocation series of the Commissioner of the Government of Port -au-Prince against the leaders of Sogener SA
And finally, the very count Brother SAINT-JUSTE drew the attention of Haitian students on the notion of the correctionalization of a criminal offense by the prosecution. The three remarks of this eminent lawyer deserve a scientific analysis in the interest of the evolution of the law. From the outset, it must be remembered that effective justice must adapt with societal change in order to provide the objective criminal response, even if the miscarriage of justice is not excluded. Hence the existence of judicial remedies.
So, the effectiveness of this criminal justice that spoke our colleague is dependent on both public decision-makers and lawyers as competitors, who are intended to assist the judge in the construction of the penal response and the judicial truth. Thus, the competing lawyers of the two opponents of this case strive to produce scientifically inspired reflections in order to contribute to the evolution of our law. With regard to the assessment of the criminal prosecution by the prosecution, the confrere is right to recall that the French legislator prefers the prosecution of the legality of prosecutions, and this contrary to the Anglo-Saxon system as England and United States.
Nevertheless, it seems important to recommend that the brave reader read Articles 13 and 48 of the Code of Criminal Procedure together. First, the above-mentioned Article 13 provides (it should be noted that only a contract or only a contract stipulates) that “the commissioners of the Government are responsible for the investigation and prosecution of all offenses or crimes of which the courts are aware. correctional or criminal.
Secondly, Article 48 of the same code states that “except in the case of flagrante delicto, the investigating judge shall not make any act of investigation and prosecution, that he has given notice of the proceedings to the government commissioner; he will communicate it to him in the same way, when it is finished, and the government commissioner WILL MAKE ANY REQUIREMENTS, WHICH HE WILL DETERMINE, without being able to retain the procedure of more than three days. In this case, this combined reading requires two clarifications on two words: “search” in Article 13 and “suitable” in Article 48. For the purposes of Article 13, the word “search” refers to examination in the context of a criminal investigation.
This means that the complaint lodged with the public prosecutor's office must be examined to assess the criminal prosecution envisaged. Thus, the examination may reveal unlawful behavior, which deserves to be pursued. The opposite is equally true. In this context, the prosecution “may” decide to proceed if the examination of the file submitted to it is of a criminal or criminal nature. Speaking of section 48 of the Code of Criminal Procedure, even a layman should not have dared to speak of the duty of prosecution to be charged to the government commissioner.
In fact, even if the legislator sometimes seems incomprehensible in his legal reflections, but the clarity of this article should not surprise the grammatical knowledge of any reader since the word “suitable” supposes what seems fair, acceptable or appropriate. An intelligently academic reading of this article helps any reader, even a layman, to understand that the legislator offers the possibility to the prosecutor's office to decide on the criminal case that he wishes to give to the press release of the investigating judge, it being specified that he is given a period of three days simply. As a result, he may choose to continue or not to continue.
Therefore, with all the recognition of the intellectual values and skills of Mr. Newton SAINT-JUSTE, it is important that a sacrifice is recommended to the latter not to further weaken the Haitian judicial system on the scientific level through its legal reflections. Finally, in the continuity of his false claim of legality of prosecution, the confrere mentioned that the prosecutor's office, within the framework of the summoning of the leaders of the Sogener, can only correct the criminal complaint on the initiative of the Haitian State . This last thesis makes it possible to recall the relativisation of the tripartite classification of offenses: contravention, crime and crime. If a criminal act can be criminalized, the criminal offense can be amended by decriminalization in the judicial process.
On the other hand, this procedural amendment could be so detrimental to individual liberty that the legislator and the doctrine surround it with judicial guarantees. Thus, in the framework of the setting in motion of the public action, the assessment of the facts by the parquet floor tends to determine the penal qualification which would be seized the competent jurisdiction. However, the power to relativize an offense falls exclusively within the jurisdiction of the judicial judge simply because the prosecution is not a judicial authority within the meaning of the independence of the judiciary.
Therefore, it is obvious that Mr. Newton SAINT-JUSTE confuses the penal classification with the notion of relativisation of the tripartite classification of the offenses, whose decision-making power escapes the prosecution to fall on the table of the judicial judge. In both camps, both Sogener and the Haitian State, it is desirable for lawyers to consider that their missions consist essentially of contributing effectively to the construction of the criminal response of an incriminated act in accordance with the law. defense of their clients.
To the contrary, it would be useless to remind each intervention in the media to be professors at the university by showing concern for the solid legal education of law students. Because some of them were lucky enough to have been my students, I taught them the exact opposite in criminal law.
Me. Guerby BLAISE
Lawyer and Researcher-Professor in Criminal Law and Criminal Procedure
Graduate School of Paris Nanterre