Contenu du sommaire : Parole(s) : l'affaire d'Outreau

The article presents the results of a pluridisciplinary research study – in the field of social and legal sciences – concerning a criminal case, the so-called Outreau case, and more precisely about a specific corpus: the hearings before the parliamentary investigation committee created in order to investigate “the reasons for the dysfunction of the judiciary”. After presenting the organisation of hearings, we propose a transversal reading of the case: from the analysis of proceedings to the reforms resulting from parliamentary discussions. This reading is inscribed in a temporality which includes both the case and its parliamentary re-appropriation: what we denominate the Outreau phenomenon. This qualification highlights the oral forms characterising the case: the transcribed words of the instruction phase, the contradictory words of the hearings before the courts and the public words of the hearings before the parliamentary committee. The statute-law from March 5, 2007 takes over this distinction in order to reaffirm the role of the public and contradictory words in the instruction phase and to generalise the audiovisual recording. The reform tends to protect the rights of the accused by giving the procedure the characteristics of the accusatory system: the oral character and the public character. Nevertheless its implementation seems to be difficult because of the weight of the “inquisitory” procedure's inheritance.

To the term dysfunction chosen by the members of Parliament to qualify the Outreau case, we substitute the term crisis as a starting point for our reflection. The etymology of the term crisis includes two periods: “the acute manifestation of a disease” and “the decisive change” to which it leads. After describing the emotional climate generated by the critical state of the system, we present the proposed remedies. The reform's ambiguity (statute-law from March 5, 2007) comes from the fact that it has filled in the central gap in the inquisitorial system – the role of the investigating magistrate – in order both to give it back its strength and to concede some complementary guaranties to the Defence. How is it possible to imagine that, by modifying neither the remand in custody nor the means attributed to the courts, and, in addition, by reinforcing the inquisitorial system, it will be possible to avoid a new Outreau case in the future?

In France the Outreau case has revived the discussion about the necessity of a reform of the criminal procedure. In Italy, the new criminal procedure Code adopted in 1989 – in force since 1991 – has introduced a judiciary system with an accusatory dominant. What can we learn from the Italian experience? The lack of interest for the criminal hearings in « cour d'assises » and for the criminal jury in the parliamentary investigation committee's reflection has led us to present these two topics in the light of the Italian judicial system. This system shows the importance of taking into account the legal culture in any reform project and warns us against the « reforming imperative », while it offers new perspectives for the durability and reliability of the judicial institution.

This article deals with the deliberations in the Cour d'assises in the Outreau case, both in the first resort and in appeal, by using the hearings before the Parliamentary investigation committee and the author's professional experience as a judge (17 years as children's judge and 16 years as a President in the Cour d'assises). This free personal reflection gives the opportunity, by using the legal texts, to think over the practices of deliberation. The author also examines the problems inherent to the criminal proceedings in the sex cases and the specificity of evidence of guilt in such cases both because of their emotive power and because of the considerable stir they create in French public opinion nowadays.

The procedural constraints affecting the protagonists' words in the proceedings concerning sexual abuse have become both less visible because of the practices and less  « legible » because of the evolutions of the procedural rules. In spite of these evolutions, the procedural norm still stages these words according to French procedural rules which, to-day, are subjected to a deep change between two systems: the one inherited from the inquisitorial model and a “contradictory” model requiring a due hearing of the parties. Nevertheless the judicial processes are never  « the words of one party against those of the other ». They only produce  « judicial words » as specific as the  « judicial truth » both by their production mode as by their scope of influence. Therefore these words must not be considered as sacred. And the judiciary should see to it both in the perpetrators' interest as in the victims' interest.

Many observations formulated before the Investigation Committee on the Outreau case and many recommendations have concerned the devices used to record the declarations of the persons heard during the criminal proceedings. The transformation of the oral into written declarations is considered from two dimensions: 1) the first dimension is institutional and raises the question of the impact of criminal procedure law on the events reported before the Investigation Committee. It has appeared that if registering the hearings of the children is compulsory, the legal devices for bypassing this obligation are numerous so that official reports remained the exclusive reference during the investigation phase; 2) the second dimension is linguistic and concerns the problems raised by the transcription of oral words in interaction. Discrepancies between video recordings done before the Investigation Committee and their transcriptions into the final report show that an official report, written the hearings is unable to render neither the content nor the sequence of what is being said. Video recording is therefore necessary in order to avoid interpretation problems. If the status of oral words in the criminal proceedings is not deeply reformed, we must conclude that similar cases such as the Outreau case are likely to occur in the future.

As a reality test, the Outreau case has questioned the legitimate schemes of knowledge and powers in France. In that prospect, the hearings held by the parliamentary committee in 2006 have led numerous psyche experts to reconsider the requirements of a potential encounter between judges and experts. The hearings' minutes tell of larger academic and scientific considerations, implying that the Anglo-Saxon psychiatry and psycho-criminological pattern grow as the reference models. As such, the hearings' system has a dual significance: it shows a reflection on the legitimacy of experts to intervene in the legal field as much as a conflict of scientific patterns.

The children's “words” have acquired inasmuch importance as, in judicial affairs of intra-family sexual abuse, there are, most of the time, neither evidence nor confession but instead contradictory versions. The author shows how, in the Outreau case, the children's words have not been really listened to because conditions for a real understanding by adults – laymen or justice professionals – were missing. In this article, analysing the treatment of these words allows to emphasize the necessary consideration of numerous data such as the circumstances of disclosing the facts, the family context, the characteristics of the narrative and the evolution of potential symptoms. But the controversial concept of credibility, revealing the social ambivalence and the difficulty of applying the doubt, must remain the responsibility of the judges and not of the clinical experts. The latter must, starting from elements collected in a specific relation, describe the psychological processes functioning in a child, between fantasy and reality.

The responsibility of the media in mishandling the Outreau case is now evident. Looking carefully, one nevertheless sees that the media handled it in a business-as-usual manner, which means dependence on judicial sources. Doubtless the reserve engendered by the subject of pedophilia contributed to the unprofessional shortcutting of careful verification. From the beginning, the reference to the respect of confidentiality could not hold in front of public rumour. The results of a difficult counter-investigation were ignored until the Saint-Omer trial. By denouncing the judicial fiasco at the end, did the media seek to absolve itself of responsibility or was it trying to make amends?

The “dysfunction” concept, extremely trendy nowadays to emphasize the opposition between a system presumed as functional and its failures, the “dysfunction” concept is not sufficient to explain the Outreau failure. We rather should stand at some distance, analyse the historical context of this event, the evolution of collective representations and terrors specific to our time, especially the images of the sex maniac and his victim. As long as such an emotional blurring will prevent us to think, other judicial failures are foreseeable.

The so-called Outreau case confirms the risks of dire injustice connected with preliminary investigation in France. The same goes for the practice of remanding in custody which has, for several years, kept in jail accused subsequently proved innocent. It seemed insightful here to compare some elements of this case to the analysis developed by Montaigne in his Essays regarding forms of institutional justice. Whatever the risk of sounding anachronistic, one can indeed establish startling parallels showing the persistence of an “inquisitorial culture” characterised by the presumption of guilt and the search for a confession at all costs, whatever the price to pay in terms of truth.