Secrecy Of Pre-Trial Investigations And Inquiries: A Fundamental Principal Undermined By Social Changes

Author:Ms Charlotte Desfontaines
Profession:Soulier Avocats

In today's increasingly information dominated society, the National Assembly's Law Committee has asked MPs Xavier Breton and Didier Paris to carry out a fact-finding mission on the secrecy of pre-trial investigations and inquiries.

In the report1 examined by the Law Commission in December 2019, they rightly point out the inconsistencies that surround this principle, which is fundamental, but which is undermined by the legitimate need for information. Beyond this observation, the rapporteurs draw up a list of recommendations in order to adapt the secrecy of pre-trial investigations and inquiries to the evolutions of today's society.

The secrecy of pre-trial investigations and inquiries, although regularly breached, deserves to be maintained and better protected, while ensuring citizens' right to information through better communication by the judiciary.

As an old legal principle, the secrecy of pre-trial investigations and inquiries has evolved in line with societal changes, until it was enshrined in the French Code of Criminal Procedure in 19572. Although it is a fundamental principle that applies to all elements of criminal proceedings, secrecy is neither general nor absolute. Thus, only persons who take part in the proceedings are bound by it, with the exception of persons bound by professional secrecy or persons bound by an obligation of confidentiality with respect to the investigations and inquiries (e.g. lawyers).

In today's society where image and information prevail, citizens have a high demand for transparency, especially from the media: they want to know everything, immediately and with as many details as possible. The development of social networks and 24-hour television news channels is not unconnected with this evolution. As such, protecting information under the secrecy of pre-trial investigations or inquiries may appear to interfere with the right to information.

What interests are protected by the secrecy of pre-trial investigations and inquiries?

The rapporteur MPs of the fact-finding mission argue with interest that the aim of the secrecy of pre-trial investigations and inquiries is above all to protect fundamental rights and to guarantee a fair trial for litigants. The Constitutional Council has in fact recognized the dual purpose of this principle: "on the one hand, to guarantee the proper conduct of investigations and inquiries, thus pursuing the constitutionally valid objectives of preventing breaches of public order and finding the perpetrators of crimes and offences, (...) and, on the other hand, to protect the persons concerned by an investigation or inquiry, in order to guarantee the right to privacy and the presumption of innocence"3.

The secrecy of pre-trial...

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