The resurrection of Napoléon's principle of equal justice

Hon. Gilles Létourneau

French Emperor Napoléon strongly believed in an equal and unified form of justice for all French citizens. He is known to have said:

       There is but one justice in France: one is a French citizen before being a soldier. If one soldier kills another in France, he has no doubt committed a military offence, but he has also committed an offence under ordinary law. All crimes must first and foremost be tried by civil tribunals each time such a tribunal is available.

Over time, however, as in many other countries, France departed from this principle and established military tribunals with a wide penal jurisdiction. This system of military justice prevailed until military tribunals were abolished in 2011. The prosecution of crimes committed by military members  must now be conducted before civilian tribunals.

Recently, allegations of serious sexual assaults (rape) against minors in Central Africa have been made against some 15 French soldiers. The alleged crimes were brought to the attention of the French military authorities by the United Nations. The military authorities launched an investigation but, according to media reports, only to determine if there was a malfunctioning of the chain of command which could lead to internal sanctions against the culprits ranging from short detention to dismissal from the Forces. Whatever military sanction is taken does not pre-empt prosecutions and trials before the civilian courts. There is no longer in France military trials of ordinary criminal law offences.

In the present instance the results of the military investigation were classified and cannot be revealed to the public unless so ordered by civilian justice. A request for disclosure is expected to be made by the civilian tribunal. When crimes are committed by members of the military or the military is the victim of crimes in France, the prosecution takes place before the ordinary criminal courts which have a branch specialized in military law.

When crimes are committed outside French territory, the trial takes place either before the correctional courts or the Assizes Court. Until January 2012 these crimes used to be tried by a military tribunal called “le Tribunal aux armées de Paris,” which was abolished. They now fall under the jurisdiction of "le Tribunal de grande instance de Paris,” which is a civilian tribunal. This court is composed of professional judges and does not sit with a jury.

The French authorities have created an investigative unit composed of military police officers whose task is to conduct the investigation of crimes committed against the French military or by members of the military. They possess the same powers as civilian police officers. Members of this investigative unit accompany the French army when it operates abroad.

Napoleon would be glad to see that his principle based on equal justice has now been reinstated after years of wandering.