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Miscarriages of Justice: repair the evil is often impossible

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They are daily committed in criminal cases but also in civil and commercial matters often.
There are rarely any retrial: question justice ego because recognize too many errors is equivalent to discredit the judiciary, and with it the authority of the State.
Review a trial is long, costly and procedural: results, convicts wrongly are discouraged.


"Depending on whether you are powerful or miserable, Justice will you innocent or guilty", once wrote Victor Hugo. This maxim is still valid. In the middle of the 1990s, the peaceful Doukkala area is in shock. Killings of women are committed in different places and people are starting to worry about in the absence of reaction on the part of law enforcement. Some psychosis installs. Under popular pressure, investigations are conducted hastily and all ways are implemented to arrest the guilty party. In the aftermath, two people, M.N and A.E, seen by witnesses at the scene of a crime, are arrested and brought before justice. They must, in spite of their denials, a sentence of life imprisonment. The case is assumed to be classified. Eight years later, was fortuitously discovered the true culprit of an examination for a new murder. M.b. is arrested, he admits... and claims even other assassinations (5 in total), including those which have sentenced M.N and A.E. stupor, embarrassment and consternation of magistrates. The fake two culprits are released. The retrial was launder before justice has, to date, no held. Truth, guilty, be sentenced to death
But the miscarriage of justice concerns not only criminal cases, it dormant in each passing record by the courts, whether civil, commercial or criminal. It is common, repetitive become banal, accepted and recognized by all! It hardly even surprising justice professionals: judges, lawyers, notaries, police experts. Anyone can be a victim, with more or less collateral damage.

A bank statement that has no legal value but which forms the basis of a conviction

Miscarriages of Justice committed every day, cites the following examples: financial folder, a judge recognizes that the bank account statement (which it is presented as evidence) of a citizen is flawed, and does not meet the statutory standards. It condemned not less the debtor for the payment of the debt, believing that the latter proved according... the statement of account in question. In a case, an individual is stopped in a brawl in a coffee between two dealers, but to which he is not involved. The font is not always in detail: brawl in a place all public, aboard the world, and is discussed later! During the fight, a piece of hashish is slipped under the shocked... type table but it is prosecuted, tried, and convicted of possession and sale of narcotics!
In a civil case, it is an owner who cannot retrieve the premises it rented. The tenant has disappeared, not without a "drag" a banking mortgage on the leased premises. The Court will determine restitution from the local to the payment by the owner at the Bank of moneys loaned to the lessee has evaporated. Still an error, seriously injuring the unfortunate owner.
Question: how to repair the damage suffered to miscarriages of Justice, particularly in criminal cases, as one of two innocent men sentenced to wrong and having already served eight years? It must be said that the procedure is not simple, it is long, complex and expensive (see box) and stakeholders speak not Twine. This is the real tragedy of miscarriages of Justice: how to recover lost time spent behind bars? And more importantly, how wash dishonour that suffered the wrongfully convicted individual and his family? How and which can be quantified? And who will compensate the victim for what the law calls "gross negligence of the State"?
First, what is a miscarriage of Justice? It is to condemn someone for wrongful acts did not commit. This is the technical definition. But in law, a miscarriage of Justice is "error in fact by a trial court in its assessment of the guilt of a person prosecuted." It often involves the conviction of an innocent person or acquittal, or the release of the real perpetrator of the offence. Miscarriage of Justice is not uncommon that we think, only few records arrive before public opinion.
Since, legally, "error" does not exist... or at least, it is very difficult to demonstrate. And the judicial authority itself must recognize there is error judicial or otherwise, must reject magistrates, admit education was shoddy, police agencies have committed faults, and that the supposed barrier (as successive calls) did not work: and this is the hardest. Difficult for various reasons: matter of ego and prestige of justice first, which often refuses to admit it, fearing a loss of authority. Justice is then often pressure required (by politicians, media and opinion) to act fast and tough to placate some tensions. Finally recognize a too large number of miscarriages of Justice will discredit the judiciary itself, and with it the authority and prestige of the State in which justice is pronounced. When, moreover, we know that justice is made on behalf of her Majesty the Morocco...

The most common is the case of disproportionate penalties

That said, the seriousness of the miscarriage is proportional to the harm caused. Of course, there is error when he arrived to a magistrate to impose a fine disproportionate to the facts of convicting an innocent person or relax a culprit, but this error is otherwise more damaging when the magistrate decide on death row (or), and when the sentence is execution.
If in the Morocco miscarriages reach not always this severity, they are not less harmful. Individuals are prosecuted for mild events, but pay penalties disproportionate with crimes. Exaggerated fined n.s.f. cheques issuers are, accused in cases of press are heavily punished, not forgetting the ungraded cases dealt with on a daily basis.
Let's first two evidences: primo, no compensation is satisfactory for one who is unjustly condemned. Secondly, we rarely seen leading (virtually identical to the Morocco and France) review proceedings because it then a situation in which the judge must contradict his peers is never easy.
That said, the introduction of an application for review pursuant to article 566 of the Code of criminal procedure is provided in the following four cases: If in the event of a conviction for murder, the alleged victim was found alive; If after a conviction, a second person is condemned for the same facts, thus relieving the first condemned; If one of the witnesses at a trial, where there has been a conviction, subsequently convinced of false testimony and sentenced for this. Finally, in the event of an outbreak of fresh evidence not been heard or checked during the first procedure.
Criminal records are sometimes very delicate to handle, and as a result of popular pressure, they lead judges make mistakes of assessment. L'affaire Omar Raddad in France remained famous in judicial annals of that country (see box).
For Morocco, a question arises: why unfair judgements are so common? The answer is simple: at the base lies the lambda citizen, which often ignores what are the most basic rights. Following an event, it faces the police and his fate is in most cases, resolved. It will be a record (generally unfavourable to him), which will be sent to the Prosecutor's Office. After is a wave at a glance, always substitute commit prosecution. At the hearing, the representative of the prosecution will intervene to launch: "I claim the conviction". In General, the Chairman will follow this recommendation, and the case is closed! Rarely, we saw Morocco prosecutors asking relax (felt poorly survey), or a judge contradicting a Prosecutor.
On the other hand, in civil and commercial cases, the court ordering expertise, often forgotten to follow recommendations; It ignores the arguments of counsel, done little for their claims on form and completely neglects the jurisprudence of the Supreme Court. Result: judgments often rushed, repetitive, not well-argued, poorly constructed, where law is mauled, misunderstood, or even flouted.

History: Famous cases of miscarriage of Justice in France

This is the famous inscription "Omar has me kill", drawn in letters of blood on the wall of the room where the victim, that will be used as evidence of the guilt of Omar Raddad was found. Before the tribunal, the accused denies inconclusive evidence and controversy raged concerning the true author of the accusatory registration. Justice will decide, condemning M.Raddad 18 years of imprisonment, boosting of greatest controversy: a guilty sentence is slight; It is huge for an innocent! Omar Raddad partial grace of President Chirac to benefit and make his freedom in 1998. But freedom doesn't mean rehabilitation: the Criminal Chamber of the French Cour de cassation, sitting in chambers for review, recently dismissed his application, considering that there was nothing new. There will be no retrial and the file will be permanently closed... pending a possible decision of the European Court of human rights.
The other case took place in the town of Outreau, France. In 2004, a network of sexual abuse of minors is dismantled, accusations abound, as well as arrests; many people (total 17) denounced, notables are incarcerated, as well as put parents in question by their own children. Some defendants will spend up to three years behind bars, and will be all paid in 2007. In this case, miscarriage of Justice is more complex than Raddad. Indeed, this is not a jurisdiction that is being challenged, but a whole system.
The public prosecutor had appointed a young investigative judge who was wrong. Seized several times by counsel for the defence, appellate court had endorsed the faults of the young judge indictment division had seen is that of fire and various alertés prosecutors had not found it useful to "crop" the examining magistrate.
The fiasco was total: lives broken, children abducted from their parents, and even an accused who died in detention!

Proceedings: Review of a trial: what said the Code of criminal procedure

Nine PPC (Code of criminal procedure) sections provide this revision, transforming it into a veritable obstacle course. Firstly there are 568 section which provides that the procedure must take place before the Criminal Chamber of the Supreme Court in Rabat. This requirement makes the complicated and expensive procedure (transport costs, residence permits, fees...).
What prevents more than one. Second, procedural costs are borne by the applicant (art. 574): imprisoned by mistake, should (increasingly) pay legal fees to recover his freedom and his honour; and if the application is rejected, will charge it in addition to relatively high legal costs. To compensation for damages suffered (incongruous in the Morocco) thing is processed and shipped within a single article: 573. It stipulates that in case of revision, the convicted person is entitled to claim compensation for damages and harm suffered as a result of the conviction. The State is obliged to fulfill these damages, but several questions remain unanswered: who will decide on the amount to allocate? How to assess damage, knowing that it is impossible to restore the victim to the position where it would have been if the damage had not occurred? How could judge (male) repairing the irreparable?
The difference of the physician or other professionals can be found personally liable for their mistakes, the magistrate cannot be liable directly by litigants who would argue an error of assessment or a professional fault on his part. The judge is still protected by the sacrosanct "intimate conviction" and it is very difficult to counter this principle.
The conclusion is clear: the revision is difficult, random compensation and unlikely rehabilitation.
And even in France where the legislation provides for the implementation of all these measures, where there is a compensation Board and where judges are adept at the mysteries of the law, it is clear review requests which are extremely rare.

Fadel Boucetta

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