Territorializing sentences as Valérie Pécresse wishes, is it possible?

PROGRAM – Candidate LR wants the crimes and misdemeanors committed in certain geographical areas are sanctioned more severely. Can this proposal succeed or does it come up against legal or constitutional principles? With the Highlighters, we look into the question.

Benjamin DARD – 2022–11T08: 26: 38.767+00: 00

This week The Verifiers wanted to question one of Valérie Pécresse’s flagship proposals. Then a candidate for the LR nomination in October, in Le Grand Jury, wanted the fact of “committing a sentence in a place in which one committing too many could be an aggravating circumstance”. So we submitted this question: is it legally feasible? And if so, under what conditions? To enlighten us, as every week, we called on our partner “Les Surligneurs”: and it is Emmanuel Daoud, member Highlighters and court lawyer specializing in criminal law who agreed to provide us with his expertise.All the info on

Valérie Pécresse, champion of the right for the presidential election

Why did candidate LR hold this proposal?

Candidate LR starts from a principle: in more criminogenic territories, the criminal response must be more severe to deter the perpetrators of offenses and crimes. Particularly in the Districts of Republican Reconquest (QRP) which in his eyes require a particular effort. We interviewed Geoffroy Didier, from Valérie Pécresse’s campaign team, he defends a “parallelism of forms” as he calls it himself: “We want to increase the means of police in these difficult districts, so it is normal in parallel to intensify the criminal response in these places known as Republican Reconquest, these districts require an effort of the presence of the State of the Public Services and the intensity of the penal response, it is the only way to rehabilitate these neighborhoods. Without punishment, there is no order. Without order, there is no hope”. Geoffroy Didier considers that the aggravation of the penalties will make it possible to reduce delinquency in these districts, even if there is no scientific and documented study which has established and demonstrated a correlation between these two phenomena.

So is it possible in the current framework?

Yes according to the entourage of Valérie Pécresse. Geoffroy Didier evokes “the principle of aggravating circumstance” already present in the law and which applies “when one commits a criminal act, for example in a particular place such as school or in public transports”. Indeed, as explained to us, Me Daoud the legislator has already chosen to protect certain places or to protect potential victims in certain places, by increasing the penalties incurred.

Example: the fact, for a drug trafficker, of selling narcotic products in an educational establishment or of education, or in the vicinity of these establishments, carries the penalty of five to ten years’ imprisonment (article 228-38, paragraph 2, of the Penal Code). “The objective here is to protect the health and morality of minors, by dissuading drug traffickers from organizing such trafficking in places dedicated to public education and knowledge.”

So for Geoffroy Didier, there are already “places of territorial legal inequality: those who commits a crime in a school will not be judged in the same way as the one who commits this crime on the sidewalk in front of the school or a few streets away”. So in the eyes of Geoffroy Didier, it would suffice to pass a law which would allow the creation of a new aggravating circumstance in relation to the place of commission of the relevant offences.

Doesn’t this proposal involve a risk of unconstitutionality?

Such a reform runs counter to several principles: first of all, article 6 of the Declaration of 22 August 1789 of Human Rights and Citizen provides that the law “must be the same for all, whether it protects or punishes”. Contrary to the principle of equality before the law, the territorialisation of penalties would lead to an unjustified increase in the penalty between two individuals, without direct relation to the object of the law.

Furthermore, this proposition is in contradiction with the article 132-1 of the Penal Code which provides that “no one is responsible except for his own act”. This principle has been attached to Articles 8 and 9 of the Declaration of the Rights of Man and of the Citizen by the Constitutional Council (Constitutional Council, 16 June 1999, no.86-317 DC). However, the territorialization of sentences would have the effect of aggravating the sentence of a convicted person, for the sole reason that several other individuals would have committed similar acts in the same place.

So in the event of censure of the reform by the Constitutional Council, what does it intend to do to circumvent this difficulty?

This is what we asked Geoffroy Didier who puts forward two solutions.

The first would be to propose a constitutional referendum in the fall 3877 for an implementation “before the end of the year of a bill reforming the penal code”. According to the terms of the article 85 of the Constitution the President of the Republic, on the proposal of the Prime Minister, or by parliamentarians initiates a review procedure. The National Assembly and the Senate examine it and must vote on it in identical terms. To be definitively adopted, the revision then presupposes being approved by referendum. In practice, the adoption of a law requires between 6 months and a year of parliamentary work. A constitutional revision presupposes the expiry of the same period (taking into account the work prior to the filing of the draft or the revision).

Another possibility: it will send, via its Minister of Justice, indications of criminal policy to the prosecutors so that they are more severe in the QRR . This is already provided for by law. The item 30-1 of the Code of Criminal Procedure stipulates that the “Prosecutor of the Republic implements the criminal policy defined by the general instructions of the Minister of Justicetaking into account the context specific to its jurisdiction”.

In practice, meetings are held between the prefect and the prosecutor to better implement security policies. Thus, explains Mr. Daoud, “it is not uncommon for certain identified territories (for example the districts of Republican reconquest) to be the subject of a repressive policy adapted to the local criminal phenomenon. This translates into a policy of more systematic prosecutions for certain offenses (for example: offenses against the narcotics legislation), and increased repression”.

Does this exist in another European country?

In Denmark, in 2018, the liberal party had proposed to introduce into the “anti-ghetto law” ( 21 measures introduced to try to reduce crime), the possibility for magistrates to double sentences for offenses committed in ghettos (defined by the law itself as places of residence characterized by half of the inhabitants of non[1]western origin – often of Muslim faith -, by a high percentage of crime, by a high rate of unemployment). This proposal did not succeed.

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