Max Planck Institute for Foreign and International Criminal Law

On 9 March 2004, the French legislature enacted the so-called "Loi Perben II," which contains one of the most far-reaching amendments of substantive criminal law and criminal procedure of the last decades. This law broke new ground in the fight against organized crime. As part of the new procedure that defines organized crime by means of an offense catalog, special judicial panels have been established and special investigative measures allowed. Existing investigative measures have been expanded and new measures introduced. The project has three goals: The first is to clarify whether the newly introduced catalog of offenses is inherently coherent or whether the legislature used the concept of organized crime as a pretense for introducing a special criminal procedure for (moderately) serious offenses. The second is to address the question of whether the special judicial panels for organized crime involve the introduction of special or extraordinary courts and to evaluate these special panels. The third is to identify and evaluate the discrepancies that have arisen due to the introduction of special investigative procedures for organized crime as compared to ordinary investigative procedures.

In order to answer these questions, the study compares the innovations of the special criminal procedure for organized crime with ordinary criminal procedure in an analysis of French case law and literature. Compatibility with the European Convention on Human Rights is also discussed.

A significant finding of this project is the showing that the fight against organized crime led to the introduction of a procedure for (moderately) serious offenses. The catalog of offenses is inconsistent and includes offenses that do not constitute organized crime. Instead, it covers ordinary, moderately serious to serious offenses that are punishable with a maximum sentence of at least ten years imprisonment, with no discernible uniform criteria behind the classification as organized crime. The adoption of the current catalog of offenses into a criminal procedure entitled "Criminal Procedure for Organized Crime" thus serves as a pretense to submit a smorgasbord of offenses to a special criminal procedure that is equipped with expanded and special investigative procedures.

The special judicial panels are, however, integrated into the existing judicial organization and – except for the high level of specialization of the responsible "magistrats" – are indistinguishable from the ordinary courts. The motive for their introduction is expedition of proceedings by means of centralization and specialization. In addition, the consolidation of connected offenses prevents unnecessary procedural duplication.

As far as the investigative measures are concerned, the introduction of a special criminal procedure for organized crime led to the statutory codification of investigative measures that were previously only partly regulated or not at all. However, these measures cannot be carried out without reference to ordinary procedure. Thus, although the legislature may have intended to create the impression that it had established a special criminal procedure just for organized crime, the new procedure is really only an expanded version of ordinary procedure. In fact, the primary aim was to introduce new and effective investigative measures into police investigations and to justify them by means of a heightened requirement of judicial authorization. Due to the existing double role of the liberty and custody judge (juge des libertés et de la detention), however, this has not succeeded. Furthermore, the introduction of the special criminal procedure led only to marginal improvements in the position of the accused; these are, however, outweighed by reductions of his or her rights.

This project is a doctoral dissertation supervised by Prof. Dr. Ulrich Sieber of the University of Freiburg.