It was a promise from candidate Emmanuel Macron. In Nice, in January 2022, the president, then in the campaign, promised a law to generalize the criminal fixed fine “for all offenses providing for a prison sentence of less than one year”. Issued by the police, it allows, according to him, “to have an immediate response”, “efficient and effective”, and would even have “demonstrated its effectiveness on drug subjects”. “It’s not a lambda fine”, assured the head of state, specifying that it is “registered in the criminal record”.
Nine months later, the government therefore slipped this measure into Article 14 of the Lopmi (Orientation and Programming Law of the Ministry of the Interior), the examination of which in public session began this week in the Chamber high.
Nearly 3,400 offenses concerned
But the senators of the Law Commission were circumspect on the interest of such a measure. “Currently, the procedure for the criminal lump sum fine concerns around ten offences, for example the use of narcotics, the sale of alcohol to minors, the sale on the street, or the occupation of the halls of building”, they recall in their report.
If the government text were to be adopted as it stands, this procedure – which does not concern minors or repeat offenders – would be extended to nearly 3,400 offences. Which would be “unreasonable”, believe the parliamentarians. They thus preferred to “extend the scope of the tort fixed fine to a small number of offences”: possession of an attack dog, degradation, fuel embezzlement… A point on which the Minister of the Interior indicated that he agreed . But senators and deputies could still extend this list of offenses targeted…
“Risk of arbitrariness”
The idea of a generalization of the AFD was criticized right up to the Council of State which, in its opinion given in March latter, judged the article in question harshly. The sages of the Royal Palace affirm that the text “disregards the principle of equality before justice and is tainted with negative incompetence”. They noted in particular that “the choice of whether or not to resort to the fixed fine will be based on the assessment of the enforcement officers”, police or gendarmes. Consequence: “It will inevitably result, in the absence of a framework, a risk of arbitrariness and disparities in treatment contrary to the principle of equality before the law”.
An analysis shared by the National Consultative Commission on Human Rights (CNCDH), which notes, in an opinion issued in early October, that this generalization “would weaken the fundamental guarantees of litigants and social cohesion, without improving the criminal response”. The independent administrative authority underlines the risk, for litigants, of being deprived of “fundamental guarantees: respect for adversarial proceedings, individualisation of the sentence to take into account the personality of the perpetrator of the offence, his social and economic situation, the use of alternative measures by the public prosecutor”.
“Rather than recruiting judges, magistrates, and strengthening the means of justice, we will confer the power to punish minor offenses on the police. It’s more economical, faster, and afterwards, we can claim good numbers. It is a policy that saves itself from any reflection on the meaning of repression, the meaning of the police, the meaning of the penalty, ”estimates Thomas Dumortier, legal adviser at the CNCDH.
“Part of the field of criminal justice escapes justice”
This bill consisting of extending the AFD to other offenses is “extremely worrying”, adds Thibaut Spriet, national secretary of the Syndicate of the magistrature. “It is a device which, by definition, pushes back the judicial authority, removes its role from Justice and enormously reinforces that of the Ministry of the Interior”, adds the magistrate. A way for police officers who regularly complain that offenders are not punished enough, “to recover control”.
“We want to repress with the AFD things which, until now, were the subject of a classification without follow-up or a reminder of the law. Things that were not repressed because the Justice considered that they should not be or that they were not serious enough to lead to a sanction, continues Thibaut Spriet. With this measure, a significant part of the scope of the penal response escapes justice. »