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Le juge des libertés et de la détention et le giudice per le indagini preliminari : le "juge des libertés" dans la procédure pénale : étude comparée franco-italienne

Abstract : Criminal procedure involves many personal freedoms that must be safeguarded by lawmakers. One of the systems that effectively safeguard them is the accusatorial process. At present, the system that prevails in France is of a mixed nature, and has been in force since the 1808 Criminal Investigation Procedure Code. It is a similar system that has been implemented in Italy, due to the direct influence of this system that was brought into force as far back as in the 19th century. Since then, criminal procedure underwent very similar, liberal changes in France and Italy until 1988, when the latter country implemented an accusatorial criminal procedure. In France, the changes in criminal procedure enhancing the safeguard of personal freedoms went on until 2000, when the June 15, 2000 Act, N° 516-2000 provided for a juge des libertés et de la detention, in charge of safeguarding personal freedoms, who is very much alike the giudice per le indagini preliminary provided by the 1988 Italian Code. Both of them are in charge of the supervising of measures that may result in the limitation and restriction of liberties, notably with custody. However, since 2001, the safeguarding of personal freedoms has suffered severe setbacks in French criminal procedure. The appearance of exemption procedures has curtailed the progress of liberties. The juge des libertés et de la detention saw a broadening of his jurisdiction in exchange for more and more exemptions in the procedure. His position in the criminal process is not strong enough, in that it does not permit a satisfactory protection of liberties, and has been challenged just as the juge d’instruction position. Now, in the view of Italian law, it appears that both the juge des libertés and the juge d’instruction might really warrant liberties. To this effect, criminal procedure must be reformed and become more accusatorial, as was recommended by Henri DONNEDIEU de VABRES in his 1959 plan, and the Commission justice pénale et droits de l’homme chaired by Professor Mireille DELMAS-MARTY en 1991
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Submitted on : Tuesday, April 24, 2018 - 4:07:04 PM
Last modification on : Wednesday, March 11, 2020 - 3:13:24 PM

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  • HAL Id : tel-01776842, version 1



Samira Boudiba. Le juge des libertés et de la détention et le giudice per le indagini preliminari : le "juge des libertés" dans la procédure pénale : étude comparée franco-italienne. Droit. Université Nancy 2, 2006. Français. ⟨NNT : 2006NAN20015⟩. ⟨tel-01776842⟩



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