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L'instruction préparatoire et la protection de la liberté individuelle : le contentieux de la détention provisoire

Abstract : The controversy concerning provisional detention when comptemplated from the viewpoint of its use by the investigating courts bears on frequency and lengthy. The main reason of the frequency lies in an imbalance within the judicial examination which weighs heavily in favor of the prosecution. this imbalance is evidenced by the substantial use of police investigation prior to judicial examination, without guarantee of the adversary system or rights of the defense, by the abusive use of delegation of the examining magistrates’ authority to the police and by the action of the complainant being declared admissible too readily in order to set in motion criminal proceedings and to facilitate corroboration thereof. The legislator responds. It reinforced the adversary system and the rights of defense, permitted a much improved judicial review of provisional detention by strengthening the rule of law, and submitted such detention to more restrictive legal conditions. However, the creation of a panel of examining magistrates for the purpose of ruling on provisional detention has been proved illusory and the judicial supervision has not fulfilled its role as a substitute for provisional detention. the causes of the excessive lengthy are both economic (in particular insufficient resources, complexity and seriousness of the cases etc.), and structural because the examining magistrate being both judge and inquirer is not entirely neutral with the respect to the disputes he is called upon to adjudicate and is thus objectively partial. The legislator responds to this situation and voted rules designed to control the length of detention, the French courts have exercised a greater control under the pressure of the case law of European court of human rights pertaining to reasonable length of provisional detention. Finally, structural reforms were proposed but were never adopted. Nevertheless, the veritable solution to the length of provisional detention lies in the restoration and the consolidation of the criminal procedure
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Submitted on : Tuesday, April 24, 2018 - 4:09:29 PM
Last modification on : Tuesday, February 16, 2021 - 2:42:09 PM

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  • HAL Id : tel-01777012, version 1



François Jacquot. L'instruction préparatoire et la protection de la liberté individuelle : le contentieux de la détention provisoire. Droit. Université Nancy 2, 1997. Français. ⟨NNT : 1997NAN20019⟩. ⟨tel-01777012⟩



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