JUDGE'S INTERPRETATION OF WRITTEN REGULATIONS IN CRIMINAL MATTERS

• NCJ Number: 69052
• Journal: Revue de science criminelle et de droit penal compare Issue: 4 Dated: (OCTOBER-DECEMBER 1978) Pages: 811-824
• Author(s): P ESCANDE
• Date Published: 1978
• Length: 14 pages
• Publication Format: Article
• Language: French
• Country: France
• Note: REPORT PRESENTED TO THE LOUISIANA CHAPTER MEETING OF THE HENRI-CAPITANT ASSOCIATION HELD ON MAY 15-19, 1978 AT NEW ORLEANS AND BATON ROUGE, LOUISIANA

Annotation

GENERAL PRINCIPLES AND PARTICULAR SITUATIONS CONFRONTING FRENCH JUDGES WHEN INTERPRETING CODIFIED CRIMINAL LAW ARE DISCUSSED.

Abstract

THE GENERAL TREND IN FRENCH LEGAL REFORMS ACCORDS JUDGES GREATER FREEDOM IN INTERPETING THE CRIMINAL CODE SO THAT THEIR SENTENCING IS ADJUSTED TO THE PARTICULAR OFFENSE SITUATION AND THE OFFENDER'S PERSONALITY. THOUGH NO CONCESSIONS ARE POSSIBLE WITH REGARD TO LEGAL AND MATERIAL ELEMENTS OF AN OFFENSE, THE JUDGE POSSESSES FLEXIBILITY IN DEFINING THE OFFENDER'S INTENT. ADDITIONAL DISCRETION IS APPROPRIATE WHEN SECTIONS OF THE EXISTING CRIMINAL CODE ARE OUTDATED. FOR INSTANCE, ALTHOUGH A 1950 LAW PRESCRIBES THE DEATH PENALTY FOR THE THEFT OF ARMS, THE ARTICLE SO FAR HAS NEVER BEEN APPLIED. IF A LAW, IN A PARTICULAR CASE, APPEARS TO BE UNFAVORABLE TO THE OFFENDER, THE JUDGE MAY--AFTER CAREFUL DELIBERATION--CONVENIENTLY 'FORGET' THE EXISTENCE OF AGGRAVATING CIRCUMSTANCES. IN RESOLVING AMBIGUITIES IN THE WORDING OF A LAW, THE JUDGE SHOULD BE GUIDED PRIMARILY BY CURRENT LANGUAGE USAGE; HOWEVER, JUDICIAL TERMS MUST BE UNDERSTOOD WITHIN THEIR OWN LEGAL FRAMEWORK. A FINAL GUIDELINE TO THE JUDGE'S LEGAL INTERPRETATION IS THE FRENCH CODE OF CRIMINAL PROCEDURE WHICH PROTECTS GENERAL HUMAN RIGHTS (AS FORMULATED BY THE DECLARATION OF RIGHTS OF 1789 AND BY THE 1950 EUROPEAN CONVENTION OF HUMAN RIGHTS) AGAINST VIOLATION THROUGH ANY PARTICULAR ARTICLE OF THE CRIMINAL CODE. --IN FRENCH.