Remember upon the conduct of each depends the fate of all.



Alexander the Great

The French Law protects Corruption

The French law however complex and rich it may be, could still be improved in order to efficiently fight the corruption.

Mr Idea, one of my sources, explains that the French law must be put in place by dealing with the problem upfront. He supports the following reasoning: “The empowerment of those who know and remain silent responsibly is a prerequisite to any realistic discussion on ethics, in addition to the protection of the whistleblower. In order to seriously fight against the corruption we can not only attack its effects that force the victims to very long procedures and with improbable results. First and foremost, we must as much as possible dry up the source of the corruption which mainly stands in the protection afforded to ‘the ones who know’ in the name of a respect of individual freedoms which in a misguided way comes to oppose the natural right of the victims or all parties to a fair trial”.

Mr Idea’s analysis is reinforced by the deep reflection of the former Head of the Central Service of Prevention of the Corruption with the Ministry of Justice, who proposed to define a new offence: “With this new offence, it would reverse the burden of proof as far as corruption is concerned. It would be up to the elected official to provide the proof of the lawful origin of the property he or she possesses. This reversal of the burden of proof already exists in the Penal Code for drug smugglers and pimps. This is not something new. Why not apply it to the breaches of integrity (such as favouritism, illegal financial interests, influence peddling etc…)? Some French Deputies proposed it in 2013 during the consideration of the laws regarding transparency, without success. The government opposed it. However this principle exists in France for other forms of criminality without affecting the principle of presumption of innocence. It exists abroad, in the United Kingdom and in several countries of the African continent. This is a subject that is discussed within the framework of the G20 anti-corruption working group of which I participate in for France” as he explained to me.

“In keeping with the spirit of the Article 4 of the Declaration of Human Rights (keystone of our judiciary): “Freedom consists in being able to do everything that does not harm others” and Article 10 of our Civil Code: “Everyone is obliged to assist justice for the manifestation of the truth”. But there is a long way to go because in reality the victim or the plaintiff who exposes himself is at first sight credible because he is punishable. He is not as much considered as the one who, holding information but refusing to speak, is at first sight non credible because he is non punishable. In judicial proceedings, unless the opponent is justified, the “knowing” must be explained without abusing the duty of reserve”. Indeed, the truth does not break down and the “duty of reserve stops where iniquity starts” as the British law has admitted for more than one hundred and sixty years (Gartside vs. Outram case, 1856, United Kingdom). This is particularly true in the case of written civil proceedings which give pride of place to bribery and corruption in the sense that one hardly ever has a copy of the corruption pact, which does not need to be written to exist. While criminal proceedings at first sight allow the better understanding of the truth of the facts through the oral debates.

Photo: Giammarco Boscaro, Unsplash

In order to do so, it would be advisable to modify only one word into another one included in Article 145 of the Code of Civil Procedure: “If there exists a legitimate motive to preserve or to establish before any trial the proof of facts of which candepend the resolution of a dispute, the legally admissible measures of inquiry maybe ordered at the request of any interested person on request or in summary proceedings”. By replacing “may” by “must”. Providing that the judge “may order” shows that the proposition is well founded by law. But a devastating doubt is necessarily established since the law gives the judge, without any possibility to oppose it, the power to derogate from the spirit of the laws and not to do justice by delivering a judicial truth contrary to the truth of the facts. The doors of the justice are then very wide open to trafficking in influence, corruption and manipulations.

In this, it is fair to say that the French law protects the corruption. One must thus put it in the right place by giving strength to the law of common sense: “who does not say a word, consents”. Without being a freedom fighter and on the contrary to what is suggested in a biased and doubtful way, changing one word would have tremendous positive consequences on the economy and the image of the French justice. The “ones who know” would thus find an interest in cooperating. Instead of being subject to jokes further down the line (the race of the policeman and the thief), the fear of the sanction would then have a deterrent effect beforehand, at the source of the corruption.

In the civil court proceedings, the balance achieved by criminal proceedings would be approached by having an article of similar scope of that of the Article 434-4 of the Crimina