Dissertations / Theses on the topic 'Jugement pénal'
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Lapierre, Anne-Sophie. "La motivation du jugement pénal." Thesis, Toulon, 2015. http://www.theses.fr/2015TOUL0097.
Full textIn the nineteenth century, the obligation to state reasons of the judge, slow and difficult conquest due to its strong link with the authority of justice, was presented as "one of the happiest conquests in the administration of justice". Introducing the revolutionary era to fight against the arbitrary, meet four words to state "it must be motivated." Understood as the simple proof of the judge’s mobile, she apréhende as a pure deductive logic. However, various upheavals in our society reveal the many facets of this principle. The influence of the European Court brings out the motivation of its procedural straitjacket where the simple justification turns into persuasive explanation, to become a strong act of speech. Parallèment, the law loses its sacredness. The increasing complexity seems to show its limits, at a time when our changing society claims a more democratic justice. Motivation becomes a condition of legitimacy of judicial decisions and judge the legitimacy of quality. Studied in criminal matters, it is particularly suitable because of its particular role within our society, inviting our contemporary Justice to consider on the contrary, the subjective nature on emotions. Simple procedural obligation attached to the defense of rights, the application for knowledge demonstrates the emergence of an autonomous obligation, editorial torn between technical and political-social tool, pushing our reflection on the role of criminal justice. Appearing in crisis, this principle far from dwindling, turns out to be not the mirror of criminal justice need to be redefined
Viennot, Camille. "Le procès pénal accéléré : étude des transformations du jugement pénal." Thesis, Paris 10, 2010. http://www.theses.fr/2010PA100207.
Full textThe criminal trial has evolved under the influence of the creation and development of procedures aiming to accelerate response to offences committed. A new procedural model – the accelerated criminal trial – has progressively appeared, due to two main changes.The first change comes from the increase in the number of judging figures through various delegations of the judging function. Many protagonists, whether part of the judiciary or not, are given the judging function, traditionally assigned to a judge from the Bench. Some belong to the judiciary, such as the public prosecutor or the magistrate judging alone. Others, out of the judiciary – professionals who are not judges and judges who are not professionals – also take part in the criminal trial.The simplification of the judging process represents the second change. Closing submissions and summing-up are gradually limited thanks to the use of the consent of the offender and the avoidance of Court hearings in the presence of both parties. This simplification is also permitted by the restriction of potential challenges to accelerated procedures. The rights of defence thus suffer limitations and potential legal actions taken by victims are evaded not to be detrimental to the rapidity of procedures.Therefore, the delegation of the judging function combines with the simplification of the judging process to shape, beyond the heterogeneity of the examined procedures, this new procedural model
Alsaleh, halah. "La cassation du jugement pénal : approche comparative franco-koweïtienne." Thesis, Strasbourg, 2015. http://www.theses.fr/2015STRAA001/document.
Full textA study that aims to compare the cassation of judicial criminal judgment between that of the laws of France and Kuwait. Shall be done through the role and the mission of the Court of cassation, the guardian of criminal law. The Court ensures the protection of individual rights and freedoms once cassation appeal is submitted forward in the interest of the parties. French and Kuwait’s Court of cassation can meet on the domain field in relation to cassation in criminal matters (the control of cassation appeal and its exercisable conditions), yet it is not the same issue for the cassation appeal mechanism (the practice of the cassation appeal and the decision that of the Court).The laws implemented in Kuwait would gain clarity and efficiency that being from the direct inspiration from the French laws and liberating itself from the shackles of Egyptian laws. Reform and true commitment is the key to unlock this goal and is in turn necessary to improve cassation system of Kuwait
Guerrin, Muriel. "Les irrégularités de procédure sanctionnées par la nullité dans la phase préalable au jugement pénal." Université Robert Schuman (Strasbourg) (1971-2008), 1999. http://www.theses.fr/1999STR30010.
Full textWith the aim of protecting the interests of the individual as much as society, the penal legislator has decreed specific regulations with which failure to comply should be able to be sanctioned. Personal sanctions are handled with difficulty, and are thus rarely applied. The most evident of sanctions is thus the nullity of the irregularly performed act. With regard to this, if the reform of 1993 have not altered the conception of the notion of nullity or its domain, they have nevertheless contributed to the reshaping of the rules applicable to its system. Analysis of the field of nullity reveals that it crosses at the three stages of the phase prior to penal judgement, these being inquiry, prosecution and investigation. One traditionally opposed textual nullity with substantial nullity. However, since 1975 and the creation of article 802 of the Code of criminal procedure, one must distinguish nullity of private interest subject to grounds for complaint, from nullity of public order which is not. For jurisprudence the criteria for nullification is that of seriousness of the irregularity committed. The majority of the regulations remain of private interest, even if a nullity category with simple presumption of grounds for complaint tends to emerge. The request for nullity is itself subject to certain conditions pertaining as much to those entitled to critical rights (which now include private parties) as to the moment when the exception may be lifted. The nullity lifting system makes it no longer possible, in principal, to invoke nullity of the instruction during the course of the judgement phase. The request may neverthlexx be presented before the judgement jurisdictions as long as no information has taken place. The principal competence however, belongs to the court of criminal appeal. If the nullity is pronounced, the competent jurisdiction must still decide on the extent of nullification and indicate the lot reserved for the nullified acts
Hivert, Géraldine. "La non comparution du prévenu devant la juridiction de jugement : étude portant sur la phase décisoire du procès pénal." Montpellier 1, 2000. http://www.theses.fr/2000MON10022.
Full textJacquin-Ravot, Capucine. "La notion de condamnation pénale." Thesis, Lyon, 2020. http://www.theses.fr/2020LYSE3037.
Full textConviction is one of the concepts that has not been defined by the criminal legislator. Doctors and judges classically see it as a conviction and a sentencing by a trial court. This classic meaning of the concept of conviction, however, has limitations due to the fact that the concept of conviction is built on criteria - guilt, punishment and jurisdiction - which are not defined and are today in competition with peripheral notions. Uncertainties relating to the classic meaning of the concept of conviction also lie in the fact that pre-sentencing and post-sentencing authorities today seem to decide on guilt and punishment with an authority similar to that exercised by the trial court. when it declares and pronounces even when the latter is erased temporally and symbolically. Thus, the classic and punctual acceptance of the notion of condemnation must be abandoned in favor of a process analysis according to which the condemnation is the result of successive, pre-sentencing, sentencing and post-sentencing authorities who approach the guilt of the individual and take steps to respond to it, all within a distribution of power and responsibility. The theorizing of the condemnation process implies a study of its effects, at the forefront of which is the stigmatization of the individual it targets. Lastly, adopting a procedural meaning will make it possible to remove the inconsistencies relating to the notion of conviction and will be able to be a source of new confidence on the part of the litigants against the convicting authorities
Perrin, Maxence. "Essai sur la compétence matérielle des juridictions pénales de jugement." Thesis, Lyon 3, 2013. http://www.theses.fr/2013LYO30027/document.
Full textA core notion in criminal law for the first time put into perspective within the framework of a detailed research work. The assessment of that theme is deserved as this competence is subject to consequences. By evaluating it in extenso, latent incidences find a legitimate place as much in the field of public and private law than in the procedural sphere or in the criminal law. The key point of that theme sets up the assessment of causes and effects in the study of the jurisdiction's evolution in criminal matter.At the time of the confrontation between several necessities of the repressive justice which are immanent to such a study, tendencies between equality and individualization, fair time and swiftness, or legality and equity are joining them ; following the example of those challenges, the jurisdiction is evolving.This study was led under new auspices throughout the writing of that work.The topicality on that theme remains ardent.It should be noted that the jurisdiction of courts of law can be the object of prospectives. If justice's necessities, which seem a priori antagonists, reveal contradictions, middle ways can be taken into account in a way to strike a balance
Somda, Laurent Saâtieme. "La conscience du Juge : Étude comparée de la certitude morale en droit canonique et de l'intime conviction du juge en droit pénal français." Thesis, Université Paris-Saclay (ComUE), 2018. http://www.theses.fr/2018SACLS097.
Full textIn the exercise of his office, the judge is constantly struggling with the law and his conscience. This reality is not peculiar to our time. It is a constant in judicial history. According to the times in history, the judge's conscience has not always occupied the same place. This oscillation of the place of consciousness in the act of judging shows both a concern for justice and an ethical concern. Despite the attempts of positivist and law-centrist doctrines to mitigate or even dispel the question of the judge's consciousness of the judicial sphere; it remains intact, even more so today with the increasing complexity of certain cases. The ‘righteous’ and the ‘conscientious’ are a viscerally linked couple but unfortunately it is a couple in "difficulty", where the law does not always triumph and where the conscience does not always have good press with regard to the subjective dimension which characterizes it and to which it is very often reduced. If this question has so far been the subject of an abundant literature in both French and Canon law, I believe that it has been essentially approached either from the angle of secular law or exclusively Canon law. To our knowledge, no comparative study has been made on this subject. Hence the interest of our study. We therefore propose in this investigation a comparative study of the judge's conscience in both French criminal law and Canon law through respectively the concepts of ‘intimate conviction’ and ‘moral certainty’. In French criminal law, judges and jurors, in accordance with art. 353 CPP must judge by referring to their intimate conviction whereas in the Canon law the judge cannot; whatever the litigation pronounce in his sentence that after having acquired according to c. 1608, CIC/83 "moral certainty" about the truth of the facts. "Intimate conviction" in French law and "moral certainty" in Canon law are two forms of manifestation of the judge's conscience. We therefore wonder whether "moral certainty" is in canon law what the "conviction" is in French criminal law. Through this comparative study we wish to subtract the judgment according to the consciousness of the caricatures of which it is the object, and to highlight the complexity of the office of the judge. At the heart of the debate about the conscience of the judge is the entire office of the judge that is at stake. Judging is an art that mobilizes the whole person of the judge and highlights his authority through a ritualized perspicacity and prudence. The conscience of the judge - whose manifestation is expressed under the terms of intimate conviction and moral certainty respectively in the French and canonical legal systems and whose risk of arbitrariness is so commonly apprehended by the public - is a pledge of justice and truth as much as it is subject to the test of judicial ritual. If our contemporary society rebels to the idea of consciousness – seen as an outset to the exclusively moral and subjective sphere -, our investigation aims to demonstrate that the conscience of the judge as understood in the canonical and French legislation has a precise technical meaning, which cannot be locked in any normativity
Vukpaljaj, Anton. "Le Tribunal Pénal International pour l' ex-Yougoslavie (TPIY) et les acteurs politiques nationaux : la Serbie, la Croatie et la Bosnie-Herzégovine à l'épreuve du jugement des crimes de guerre." Thesis, Paris 10, 2009. http://www.theses.fr/2009PA100064.
Full textThis thesis constitutes a reflection on the co-operation of Bosnia-Herzegovina, Croatia and Serbia with the International Criminal Tribunal for the former Yugoslavia (ICTY). The unstable situation of this area posed a certain number of problems and difficulties to the Court to conclude its action in the observation of the infringements, the gathering of the evidence and research of the authors before their judgment. Serbian and Croatian nationalists will use the question of the co-operation with the Court to reinforce their influence on the institutions of their respective countries. In Bosnia-Herzegovina they delay the dismantling of the parallel structures which they had set up during the war. In Croatia, the Tudjman government refuses to cooperate with the Court by fear to see him associated with the crimes committed by the Croats in Bosnia. In Serbia, each election becomes an anti-ICTY plebiscite and makes it possible for the Radicals to become the first political force of the Country. The various political forces tear in connection with the co-operation with the Court. Thus, the arrest and the transfer in The Hague of Slobodan Milosevic, in July 2001, caused the bursting of the coalition of the DOS (Demokratska Opozicija Srbije) which had reversed the former president in October 2000. The murderer of the Serbian Prime Minister, Zoran Djindjic, a former paramilitary, declared on the day of his arrest that he had killed the Prime Minister by fear to see himself arrested and transferred to The Hague. The question of cooperating with the ICTY weighed like a sword of Damocles over the head of the successive Serbian and Croatian governments
Reix, Marie. "Le motif légitime en droit pénal : contribution a la théorie générale de la justification." Thesis, Bordeaux 4, 2012. http://www.theses.fr/2012BOR40055/document.
Full textIn many legal disciplines, the legitimate reason is a model of justification of acts. The legitimate reason prevents the enforcement of the law, either by creating a right or by exempting someone from a duty. Despite an unprecedented boom, criminal law is hesitant about this vague notion. In order to justify judges' assessment margin, the legitimate reason is commonly considered as a motive. This accentuates the confusion between objective and subjective causes of irresponsibility. The formal approach of the justificatory process is inadequate, making the process increasingly biased. The analysis of the legitimate reason requires a re-examination of the justification theory using a solid understanding of unlawfulness which can help standardize its implementation. The study of the legitimate reason’s justificatory function allows a better understanding of the flexibility of its implementation requirements. The legitimate reason reverses the presumption of unlawfulness on which liability is based. The cause of liability is conditioned by the value judgment made about the offence, whereas the judgment of the reality of the offender’s intention is the condition of his imputation. The legitimate reason stems from circumstances that are external to the offence, and which enable the review of its lawfulness. The objective nature of the legitimate reason is aligned with the fact that it exempts from liability in rem and not in personam. However, the requirements for its application seem exceptional to the common law of justification in two regards: its broad criteria and its narrow field. It is limited to offences of abstract risk that protect secondary values for which the presumption of unlawfulness is artificial. The defendant must prove the legitimacy of his act whereas the abstract legitimacy of the suppression is unconfirmed. The expansion of this dispensatory field of suppression reveals an inadequate control of its abstract necessity. In any case, bringing up legitimate reason is useless as it is implicit to any offence and is considered as a general model of justification. It leaves the judge free to assess the necessity of the penalty on a case by case basis, as the law, by nature, cannot resolve all value conflicts. The post facto justification of socially necessary offences or even trivial offences reinforces the authority of the law by ensuring an enforcement that is aligned with the law's aim of protecting values
Peter, Marc. "L'appropriation des avoirs criminels : les saisies pénales spéciales garantissant la peine de confiscation, une étape majeure pour une stratégie pénale patrimoniale repensée ?" Thesis, Aix-Marseille, 2018. http://www.theses.fr/2018AIXM0285.
Full textIn France, the money-laundering and trafficking fight is based on a apprehension of the illicit assets strategy. French law give to magistrates, and under conditions to investigators, very offensive prerogatives to seize property assets very early in the proceedings and regardless of the property and the presumption of innocence rights. However, the law largely reformed law of seizures by creating special criminal seizures, it did not provide a framework for confiscation enforcement. Indeed, confiscation remains the pivot of criminal property investigation, although special criminal seizures are now the driving force. The absence of a post sentential procedure is likely to open a new space of opportunity for the convicteds to dissipate part of their property. This is the reason why French criminal law should be updated to give justice a complete framework to ensure that crime does not pay
Esnard, Catherine. "Rationalités et jugement social : une étude des déterminants contextuels du jugement social policier." Bordeaux 2, 2001. http://www.theses.fr/2001BOR20870.
Full textShould the question of validity of evaluative behavior and social judgments expressed daily by "professionals of the relation in others" be measured by normative criteria of a scientific nature ? In reexamining the classic paradigms of social perception, social cognition thus turns to a multidimensional conception of the modes of knowledge as well as towards new paths of reflection for "rationality of the inferences" (Drozda-Senkowska, 1995), logics of social thought and strategies of social judgment. In this perspective, this research has for objective the analysis of certain contextual factors susceptible of conditioning acceptance of one of the two main dimensions of rationality : scientific logic and pragmatic logic, in the elaboration of professional social judgment. This problem is applied here to the social judgment expressed within the framework of a police penal inquiry. This quasi-experimental study, using a methodology of a fictitious case, concerned a population of 252 police officer patrolmen. Results show a predominance of pragmatic police logic characterized by a hypothesis confirmed not only based on a procedural interpretation of the facts but also on first impressions of others. This pragmatic strategy is modulated benefiting an analytical strategy of a fase hypothesis when the context of judgment mobilizes cognitive and motivational factors connected to the accountability and social visibility of the judgment. It is reinforced in its personalized dimension when the context mitigates these same factors. Definitively, only the contingent factors in the context of judgment bring to date a cognitive flexibility of the policemen while their job related (rank, seniority) and ideological particularities have only a weak impact on the rational strategies of police social judgment. As hypothesis, a modelling of the internal dynamics of professional social judgment is proposed
Volpi, Ludiane. "De l’influence réciproque du juge pénal et du juge civil." Strasbourg, 2009. http://www.theses.fr/2009STRA4040.
Full textMihman, Alexis. "Contribution à l'étude du temps dans la procédure pénale : pour une approche unitaire du temps de la réponse pénale." Paris 11, 2007. http://www.theses.fr/2007PA111003.
Full textRobert, Véronique. "L' administration dans le procès pénal : contribution à l'étude du particularisme de l'administration dans le procès pénal." Paris 1, 2004. http://www.theses.fr/2004PA010319.
Full textWang, Hongyu. "Etude comparative de la procédure avant jugement en procédure pénale franco-chinoise." Université Robert Schuman (Strasbourg) (1971-2008), 2007. http://www.theses.fr/2007STR30014.
Full textThe procedure before criminal trial refers to all preparatory activities before the trial. In the cases of public prosecution, this procedure, initiated by judicial department, consists of investigation, prosecution and defence. His generated when criminal prosecution develops to a certain stage. The pretrial proceedings of two big legislative systems demonstrate a certain tendency of inter-absorption and fusion as the result of the inner rules of criminal prosecution. In addition, before the court trial, both complicated investigation and prosecution are required. During this period, a series of detective activities would be organized by national judicial department, including the special investigation, evidence collection arid suspects’ arrest; meanwhile, the department would judge whether the case is qualified to be render to the court. In this sense, the pretrial proceeding is closely associated with the right of both suspects and plaintiffs, and connected to the check and balance of three departments. That is why it stands such significance in the entire procedure. Through the comparison, due to the different historical traces of China and France, it is easy to discover their respective characteristics of pretrial proceeding, such as the main body of the prosecution, starting mode, investigation, judicial control, prosecution system and defence system
Ramandan, Medhat. "La séparation entre la fonction de poursuite et les fonctions d'instruction et de jugement en matière pénale : étude comparée franco-égyptienne." Nice, 1985. http://www.theses.fr/1985NICE0005.
Full textPrésumé, Romanne. "Application du concept de stigmatisation pénale au corpus des Jugements et Délibérations du Conseil Souverain de la Nouvelle-France." Thèse, Université d'Ottawa / University of Ottawa, 2013. http://hdl.handle.net/10393/24018.
Full textLalanne, Evelyne. "Les procédures accélérées : contribution à l'analyse des procédures rapides de mise en état des délits soumis au tribunal correctionnel." Pau, 1997. http://www.theses.fr/1997PAUU2004.
Full textSoulard-Foucaud, Aude. "De l'influence du droit européen sur les atteintes à la liberté avant jugement en procédure pénale française." Poitiers, 2003. http://www.theses.fr/2003POIT3018.
Full textAl, Sara Yassine. "La privation de la liberté individuelle avant jugement ou "sans" condamnation pénale : étude de droit comparée (Franco-Syrien)." Thesis, Nantes, 2018. http://www.theses.fr/2018NANT3010.
Full textInfringing on personal freedom may be interpreted as being interfere or deprive an individual of his movement liberty to come and go. But, our study will be concentrate exclusively on the deprivation of liberty “before " or “without " a criminal conviction by comparing the two legislative systems of countries (France- Syria). To deprive a person of his liberty “before” or “without” condemned is dominated by legal imperative of security, the need to protect the society which would certainly be troubled by infringement already committed and maintenance of public order even without any offense or infringement. This is a particularly delicate issue that deserves special attention from the legislator in any legal system because it raises a problem of difficulty of finding a necessary balance between the security of society and the right to individual liberty " protected both nationally and internationally which is considered to be one of the most important rights for any individual, especially a problem of conciliation between the presumption of innocence and the need for the search for truth. It is therefore up to legislator to establish strict regulation for any deprivation of liberty measure before or without criminal conviction in order to ensure that it is fully compatible with human rights and to prohibit any risk of arbitrary detention. our research seeks to illustrate the legal requirement to be able to deprive a person of his freedom and regardless of the form the measure in question, both that based on the needs of research and the prosecution of perpetrators of criminal offences than that based on the maintenance of public order in the broad sense of the term, on the one hand, and the major guarantees surrounding the measure, the purpose of which is to ensure the effective protection interests and the rights of the person who is the object, on the other hand
Manchec, Karine. "Jugements sous influences : l'information catégorielle dans les situations judiciaires complexes." Rennes 2, 2000. http://www.theses.fr/2000REN20049.
Full textThis thesis comes deliberately within the scape of the judiciary and especially within the field of French law. Its objective is to tick of the complex judicial occurrences which make it necessary for people to resort to categorical information in order to pass sentence. Four experimentations (see chapters 3 and 4) allow us to put to the test the hypothesis according to which the complexity, bearing on a sentence is all about the burden of information, typified from both quantitative and qualitative angles. Within French penal proceedings, judges can consider that a crim is in fact a criminal offence, and then the choice to pass sentence upon a crime is motiveted by the fact that jurors may not easily understand the penal reading of what actually happened. The hypothesis according to which the complexity in line with the serious character of the facts and the judicial situations actually make people use categorial information for sentencing purposes is thus put to the test all along five experimentations (see chapter 5). These demonstrate that individuals, when faced with a complex judicial situation, back up their assessment for the person charged according to the category he or she belongs to. This is proof of the emergenceof a bias in their judgment. The concluding chapter too gives us the opportunity to put forward a new grading scale for judicial sentences ; worked out with a particular regard for ecological needs. The outcome of these studies provide answers to the interrogations raised by crime sentencing proceedings as freely implemented by magistrates
Al, Ghamdi Mohammad. "La procédure applicable au jugement des infractions les plus graves : étude comparée des droits français et saoudien." Poitiers, 2007. http://www.theses.fr/2007POIT3001.
Full textWurtz, Karine. "L'apport des théories morales de la responsabilité pour penser l'imputabilité des crimes de guerre." Paris 1, 2010. http://www.theses.fr/2010PA010573.
Full textDalbignat-Deharo, Gaëlle. "Vérité scientifique et vérité judiciaire en droit privé." Paris 1, 2002. http://www.theses.fr/2002PA010305.
Full textSaetta, Sébastien. "L'intervention de l'expert psychiatre dans les affaires criminelles : de la production d'un discours à sa participation au jugement : Grand-Duché de Luxembourg et France." Phd thesis, Université Toulouse le Mirail - Toulouse II, 2012. http://tel.archives-ouvertes.fr/tel-00710892.
Full textFerracci, Ange-Bernard. "Evaluation comparative de l'expertise psychologique et psychiatrique : vers une méthodologie systématique de l'évolution." Phd thesis, Université Toulouse le Mirail - Toulouse II, 2012. http://tel.archives-ouvertes.fr/tel-00797850.
Full textTogola, Yacouba. "La motivation des décisions de justice pénales." Thesis, Université Paris-Saclay (ComUE), 2016. http://www.theses.fr/2016SACLS125.
Full textWhat evokes motivation? How criminal law grasps motivation of judicial decisions ?The concept of motivation refers to several aspects that change its meaning depending on the role assigned to the judicial function. While it is understandable that a single approach does not compel, motivation should be reconsidered.Motivation is in fact generally perceived as a litigation instrument for the judge, the main aim being to limit its arbitrary power. To this end, a set of rules are binding on the judge. The review of these rules in the field of criminal law leads to an unsatisfactory result. If motivation is imposed on the judge in certain judicial decisions, it is however rejected in others, and a single criterion justifying such a distinction may not appear relevant. The objective nature of its contents is marked by gaps which feed the subjective approach to the motivation. It is when it is about method that the bypassing is the most visible : the motivation with unique sentence, the copy and paste or the practice of the pre-drafted motivation. Moreover, even exercised by the European Court, control of motivation leaves the criminal judge many appreciation margins, even sometimes a total freedom. Concerning the analysis of the criminal decisions, the right of the motivation ends in a contrasted result.Should we then go further and beyond this litigating approach of motivation? The answer is obviously positive. To better safeguard the interests of citizens, motivation must be transformed. This transformation is marked by an increasing connection between motivation and fundamental human rights. The motivation turns out to be the condition for the exercise of the rights of defense, while it fits into the category of the right to fair trial. In the dynamics of this evolution, the motivation - with the aim of the understanding and of the acceptance of the decision by the citizen - has to occupy a central place. It involves to glimpse, beyond rules compulsory for the judge to motivate the decision, certain improvements in order to achieve the recognition of a genuine right of the defendant for the motivation of the decision, its decision
Djeatsa, Fouematio Lionel. "L'efficacité de la justice répressive à l'épreuve du contradictoire." Thesis, Lyon 3, 2011. http://www.theses.fr/2011LYO30001.
Full textSafeguarding the interests of society implies a necessary but also effective enforcement. The latter can be provided efficiently by a search of evidence relating to the commission of an offense in order to know the author. This is the issue of criminal proceeding. However, if the protection of public peace authorizes and legitimizes this approach, the latter can not happen without limitations at the expense of individual rights. Therefore, a compromise must be made between apparently contradictory interests. Finding a balance between these two interests has had multiple expressions by legislative developments, the latter has shown a constant swing between these imperatives. There are situations in which it is necessary that justice officials respond. Thus, is justified the use of a body of specific rules by which the criminal justice response can be accomplished with minimal interference. The strengthening of the judicial police and procedural simplification, to name but a few, seem to be fully justified. However, it is reasonable to ask whether the increased role of the organs of the procedure should not be surrounded by limits to ensure that parliament’s objective, and only that objective. On the occasion of a comprehensive reflection of the place of the defendant during the criminal trial, this study leads first to question the scope of various reforms and the role of increasingly enhanced organs the procedure to be parallel dynamics can increase the pre-existing rights or create new rights of defense. The set of powers and rights which profiles the trial to give way under influence of the European Convention on Human Rights to reveal an adversarial criminal trial. Simply contradictory, but fully contradictory
Gissinger-Bosse, Célia. "Vers une conversion démocratique : analyse du dispositif de parole de la cour d'assises." Thesis, Strasbourg, 2012. http://www.theses.fr/2012STRAG018/document.
Full textOur thesis wishes to analyze the experience of juries inside criminal justice. From various interviews made with former jurors and Presidents of criminal justice as well as observations of real court sessions, we would like to show that the practice of judgement has a disturbing effect on the jurors’ convictions. The shift occurring inside the jurors’ mind is analysed through the concept of democratic conversion. This analogy will enable us to explain the process taking place inside each juror all along their experience. Our thesis analyses this “oral system” as a process heading towards democratization. Thus, we will study the ritual of penal process, the building of the absolute conviction and the Presidents’ contribution inside the final verdict. Those elements, compared with the experience of the jurors, give us the opportunity to identify the several steps of their conversion. All of these changes are strongly linked with the importance that the jurors give to the decision they have to make. The building of their absolute conviction, analysed as a true ability to judge, is at the core of the process of democratic conversion. The experience of judgement tends to be as crucial for the jurors we’ve met as for the democracy itself
Wittmann, Valérie. "Les interférences entre instances civiles et pénales parallèles : contribution à l'étude de la cohérence en matière juridictionnelle." Thesis, Dijon, 2011. http://www.theses.fr/2011DIJOD002.
Full textAWhen civil and penal proceedings occur in parallel, there is a risk of conflicting judgments, which positive law traditionally precludes by making penal proceedings paramount and by deferring adjudication on article 4 of the Criminal Code. This double mechanism, which ensures supremacy of criminal proceedings over civil proceedings, is quite singular. Indeed, it guarantees that the justifications for the decisions made are coherent. In other contentious matters, positive law pays little attention to such concerns. Moreover, it is unilateral, since it exclusively favours criminal law decisions. Though this supremacy was initially justified by the notion that criminal law decisions guaranteed truth, analysis has shown that this is largely debatable. First of all, with regard to the foundations themselves, this mechanism of course ensures a certain coherence of the matters judged, but maintains an appearance of truth rather than a guarantee of truth. Yet, precisely, the coherence of the justifications for distinct judgments is only legitimate insofar as it seeks to determine the truth. Then with regard to the system itself, the supremacy of criminal over civil proceedings interferes with the freedom of the civil judge, and violates by its absolute nature, the adversarial principle, while the systematic deferral of adjudication slows down procedures and undermines the objective of celerity. In order to remedy these drawbacks, legislators and jurisprudence have made an effort to limit the most damaging effects of this principle, by dissociating civil from repressive concepts, then by compartmentalising each within strict limits. Nevertheless, the objective of celerity finally won the day and legislators, through the law of 5th March 2007, retained the compulsory nature of the deferral of adjudication of article 4, but only with regard to civil action for damages resulting from the offence. The new law now establishes the principle of independence of parallel proceedings, even though it carries a risk of conflicting results. For the time being, however, the jurisdictions take into account the risk of conflicting results and have maintained the supremacy of criminal proceedings over civil proceedings. It is nonetheless desirable to revise the recent law, and to incorporate in the reasons which are necessary support for the criminal decision, the value of a refragable presumption of truth. The specific nature of decisions in criminal proceedings would thus be taken into account, and the sometimes antagonistic requirement of autonomy of the different jurisdictions, the coherence of the matters being judged, and the search for truth would thus be preserved
Bernadskaya, Elena. "La sentence arbitrale internationale : contribution de droit processuel comparé (droit français et droit russe)." Thesis, Lyon 3, 2011. http://www.theses.fr/2011LYO30084.
Full textThe arbitral award is a complex legal notion, sharing characteristics with the contract, the jurisdictional act and the judicial decision. Indeed, the jurisdictional dimension of the arbitral award has now been admitted, though, because of its contractual source, it is still considered as a private legal act. The legal regime of this jurisdictional act is therefore influenced by a contractual bias – as from the arbitrators’ appointment up to the enforcement of the arbitral award. A comparative approach shows that the arbitral award’s notion and legal regime are differently considered in French and Russian laws. The differences lie mainly in the interpretation of the legal qualification criteria, though the latter are similar in the two legal systems. The purpose of this analysis is to identify the said differences through the study of the arbitral award’s notion and legal regime in French and Russian laws, which might lead to consider that the specificity of the arbitral award should be preserved instead of considering the award as a judicial decision
Lestrade, Éric. "Les principes directeurs du procès dans la jurisprudence du Conseil Constitutionnel." Thesis, Bordeaux 4, 2013. http://www.theses.fr/2013BOR40033/document.
Full textIn spite of a relatively low number of written dispositions dedicated to justice inside of the body of the Constitution of October 1958 4th, the constitutional Council, while updating this text through the Declaration of Human Rights, contributed to the development of a procedural constitutional law, which is structured around guiding principles. Those principles can be classified within three different categories : two major categories depend on the trial actor that is primarily concerned, either the judge or the parties; a third and additional category pertaining to procedural protections, fosters the essential qualities of the judge and secure the protection of the parties’ rights. A gradation of the requirements of the constitutional Council is discreetly perceptible between the first two categories of principles, and more easily identifiable between those first two categories and the last one. This decreasing scale of “density” yoked to the trial guiding principles highlights a genuine judicial policy when it comes to procedural constitutional law, emphasizing access to the judge, whom is given essential qualities in order to achieve its judicial duty. However, the action of the French constitutional judge, as satisfactory as it is towards the rights of the trial, would easily support the intervention of the constituent power in order to update Justice’s constitutional status
Kardimis, Théofanis. "La chambre criminelle de la Cour de cassation face à l’article 6 de la Convention européenne des droits de l’homme : étude juridictionnelle comparée (France-Grèce)." Thesis, Lyon, 2017. http://www.theses.fr/2017LYSE3004.
Full textThe first party of the study is dedicated to the invocation of the right to a fair trial intra and extra muros and, on this basis, it focuses on the direct applicability of Article 6 and the subsidiarity of the Convention and of the European Court of Human Rights. Because of the fact that the right to a fair trial is a ‘‘judge-made law’’, the study also focuses on the invocability of the judgments of the European Court and more precisely on the direct invocability of the European Court’s judgment finding that there has been a violation of the Convention and on the request for an interpretation in accordance with the European Court’s decisions. The possibility of reviewing the criminal judgment made in violation of the Convention has generated a new right of access to the Court of cassation which particularly concerns the violations of the right to a fair trial and is probably the most important step for the respect of the right to a fair trial after enabling the right of individual petition. As for the weak conventional basis of the authority of res interpretata (“autorité de la chose interprétée”), this fact explains why an indirect dialogue between the ECHR and the Court of cassation is possible but doesn’t affect the applicant’s right to request an interpretation in accordance with the Court’s decisions and the duty of the Court of cassation to explain why it has decided to depart from the (non-binding) precedent.The second party of the study is bigger than the first one and is dedicated to the guarantees of the proper administration of justice (Article 6§1), the presumption of innocence (Article 6§2), the rights which find their conventional basis on the Article 6§1 but their logical explanation to the presumption of innocence and the rights of defence (Article 6§3). More precisely, the second party of the study is analyzing the right to an independent and impartial tribunal established by law, the right to a hearing within a reasonable time, the principle of equality of arms, the right to adversarial proceedings, the right of the defence to the last word, the right to a public hearing and a public pronouncement of the judgement, the judge’s duty to state the reasons for his decision, the presumption of innocence, in both its procedural and personal dimensions, the accused’s right to lie, his right to remain silent, his right against self-incrimination, his right to be informed of the nature and the cause of the accusation and the potential re-characterisation of the facts, his right to have adequate time and facilities for the preparation of the defence, including in particular the access to the case-file and the free and confidential communication with his lawyer, his right to appear in person at the trial, his right to defend either in person or through legal assistance, his right to be represented by his counsel, his right to free legal aid if he hasn’t sufficient means to pay for legal assistance but the interests of justice so require, his right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him and his right to the free assistance of an interpreter and to the translation of the key documents. The analysis is based on the decisions of the European Court of Human Rights and focuses on the position taken by the French and the Greek Court of Cassation (Areopagus) on each one of the above mentioned rights