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Genre/Form: | Thèses et écrits académiques |
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Additional Physical Format: | Le ministère public : des magistrats pour partie ? : une approche historique et comparative de l'impartialité du ministère public en France et en Allemagne / par Éric Mathias Lille : ANRT, [1999] 2 microfiches. (@Lille-thèses) (ABES)202518019 |
Material Type: | Thesis/dissertation, Manuscript |
Document Type: | Book, Archival Material |
All Authors / Contributors: |
Éric Mathias; Mireille Delmas-Marty; Université Paris 1 Panthéon-Sorbonne. |
OCLC Number: | 490445205 |
Description: | 1 vol. (535 f.) ; 30 cm. |
Responsibility: | Éric Mathias ; sous la direction de Mireille Delmas-Marty. |
Abstract:
Through a comparative law analysis, the author brings up a problem arising from the french practice to husch up criminal cases by conclusively closing these matters (such a practice does not exist in germany). How to explain these drifts when the public prosecutor's impartiality is constitutionally declared ? The doctrine offers a statutory answer. Coming from a governement initiative, these closed affairs must proceed from state prosecutor's hierarchical subordination : without any statutory warranties, they are contrained to resign, or otherwise said, to defer to the lord chancellor's injonctions. Studying the prosecution in france and in germany suggests another explanation. In each country, the prosecutor's impartiality is declared, they are submitted to the "executive power" (governement) and have a margin of assessment before starting legal proceedings. Those analogies should not hide a foundamental difference : while french law qualifies the prosecutor as a litigant and consequently separates prosecution functions and investigation functions, german law challenges this position. This dissimilarity needs to interest the french doctrine : the french public prosecutor's judiciary authority is not reconcilable with their litigant position and the closed affairs for convenience matters states more of a statutory problem (should the prosecutors be independant ?) Than a procedural one (can a magistrate be a litigant ?). The absence of impartiality as illustrated with closing affairs without national matter exists above the hierarchical relations : prosecutor's submission does not base this drift but rather declines it. The way to establish public prosecutor's impartiality resides in the abolition of the separation between prosecution and investigation, and in the correlative institution of a separation between prosecution and inquisy, and at last in the creation of warranties able to control the regularity of the practice of closing affairs for opportunity reasons.
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