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Court of Cassation “ denouncing" to the Court the condemnation delivered by the first court-martial of the military government of Paris, on December 22, 1894, against Alfred Dreyfus, then Captain of artillery. . Considering all the documents of the trial ;
Considering also Arts. 443 to 446 of the Code d’Instruction Criminelle as modified by the law of June 8, 1895;
Considering that the application for revision was made in proper form;
Whereas the Court is seised by its public procurator by virtue of an express order of the Minister of Justice, acting after having heard the views of the commission instituted by Art. 444 of the Code d'Instruction Criminelle.
'And whereas the said case comes under the last paragraph of Art. 443, and the demand has been made within the period fixed by Art. 444, and that the judgment of which revision is demanded has the force of res jullicata;
And whereas the documents produced do not enlighten the Court sufficiently to enable them to pronounce upon the whole affair, and that there is need to proceed to a further judicial inquiry (instruction).
For these reasons
Decides that it will proceed to make a further judicial inquiry and that it cannot, at the present stage of the matter, make any order, as to staying the effect of the sentence.'
After the termination of the new enquête or inquiry, the Court then being sufficiently enlightened, will have to decide among three alternatives :
1. To dismiss the case on the ground that the evidence substantiates the judgment in toto; or
2. To send the case for retrial on any particular counts it may specify to a different Court from that whose decision has been revised.
3. To annul the sentence in toto and declare the innocence of the accused, and, if the latter demand it, fix the indemnity due to him for illegal punishment.
The revision powers of the Court of Cassation relate to all kinds of jurisdictions and are not subject to restrictions such as are placed by the military laws on applications for cassation. Under the latter all offences are finally disposed of by a gradation of Courts martial, and there is no power to quash their final decision as in the case of the law applicable to non-military persons. Revision, however, has been treated by the lawgiver as a very extreme and exceptional means of examining all cases in which the difficulty is not one of interpretation of the law
but an apparent miscarriage of justice through a mispresentation of the facts.
The Court of Cassation as a court of revision, we have seen, is not properly speaking, any more than cassation itself, a jurisdiction of appeal. Under French criminal law appeal ends for the correctional court with a division of the Appeal Court. The sentences of the Assize Courts, which sit with a jury, are considered in the French judicial hierarchy as on a level with the Appeal Courts, and from them there is no appeal apart from cassation or revision by the Cassation Court.
Many Frenchmen think that the whole of French criminal procedure, including these powers of revision, requires remodelling, and it seems likely that before long reform will become a practical question. When, however, the subject is taken in hand, these revision powers of the Court of Cassation will, I think, probably be considered as one of the best features of an otherwise antiquated and well-nigh barbarous system !
THE FULL TEXT OF THE ARTICLES OF THE CODE D'INSTRUCTION
CRIMINELLE IN QUESTION, AS AMENDED BY THE LAW OF JUNE 8, 1895, IS AS FOLLOWS :
Art. 443. Revision may be demanded in criminal or correctional matters whatever may have been the authority that has judged the matter, or the punishment which has been awarded :
1o. When after a condemnation for homicide, documents are brought before the authorities tending to engender doubts as to whether the so-called victim is not really alive;
20. When a person shall have been duly condemned for a crime or offence for which another person has already been condemned and such condemnations are not reconcileable with each other, the contradictory judgments being a proof of the innocence of one or the other condemned person ;
3o. When one of the witnesses heard at the trial of the condemned shall have been tried and condemned for perjury at the said trial, the condemned perjurer not being competent to give evidence at the new trial;
4o. When after a condemnation a fact shall come to light or be revealed, or when documents the existence of which were unknown at the time of the first trial are presented, such documents tending to establish the innocence of the condemned person.
Art. 444. The following persons have the right to demand revision in cases falling under the first three of the above heads :
1. The Minister of Justice;
incapacity; | See M. Cruppi's admirable work on the Cour d'Assises (1897), and an equally admirable pamphlet, Le juge d'instruction et les droits de la défense, by M. Charles Furby, Avocat-général at Aix (1898).
3. After the death or declared absence of the person condemned, the
wife or the husband, the children, the parents, the sole legatee of the said deceased, or those who have received from the deceased
the special charge to do so ; 4. In the fourth case the right to demand revision shall belong to the
Minister of Justice alone, who shall decide after having taken the advice of a commission composed of the directors of his ministry, and three judges of the Court of Cassation. These judges shall be appointed by the commission annually, the judges
of the criminal section of the Court of Cassation not being eligible. The criminal section of the Court of Cassation shall be seised by its public procurator (procureur) in virtue of the express order of the Minister of Justice acting on his own responsibility or in pursuance of an appeal to him made by the proper persons in the first three of the cases specified above.
Their demand shall not be granted if it has not been inscribed at the Ministry of Justice, or introduced by the minister upon the demand of the parties, within a period of one year dating from the day upon which the fact giving rise to revision came to the knowledge of the parties.
If the order or condemnatory judgment has not been executed, the execution thereof shall be suspended de plein droit from the moment of the transmission of the demand by the Minister of Justice to the Court of Cassation.
If the condemned is in detention the execution of the judgment may be suspended, upon the order of the Minister of Justice, until the Court of Cassation has pronounced upon the case, and then if necessary may be further suspended by order of the said Court, when deciding upon the admissibility of the demand.
Art. 445. In the case where the claim is decided to be admissible, if the matter has not reached a point at which it can be dealt with, the Court shall proceed directly or by commission rogatory to make all inquiries, as to the basis of the matter, by confrontations, recognitions of identity and all other means proper to bring the truth to light.
When the matter has reached the point at which it can be dealt with, if the Court recognizes that a new trial can be begun, it shall annul the judgments or orders and all decisions which prove an obstacle to revision; it shall fix the questions which have to be put, and shall send the accused before a Court or tribunal other than those which have had any previous dealings with the affair.
In matters which have to be tried by jury the prosecutor (procureur) attached to the Court to whom the matter has been referred shall draw up a new indictment.
When by reason of the decease, contumacy, madness, or default of one or more of the condemned persons, or by reason of the prescription of either the action or the punishment, a new trial in the presence of the persons accused cannot be held, the Court of Cassation after having expressly put this impossibility upon record, shall go into the whole matter and report thereon without previous cassation or renvoi in the presence of the civil parties to the trial if any, and in the presence of a curator or curators named by it in the name of the deceased party or parties. In this case it sball annul only those of the condemnations which have been unjustly pronounced, and shall clear, if there is reason for so doing, the memory of the deceased party or parties.
If the annulling of the order of the Court as regards a condemned person
still living does not leave anything remaining which could be qualified as a crime or offence no reference to another Court will be made.
Art. 446. The order or judgment in revision, pronouncing directly or by implication the innocence of a condemned person, may, upon the demand of the latter, allow damages to him for the prejudice caused to him by his having been condemned.
If the victim of the judicial error is dead, the right to demand damages shall belong, under the same conditions, to the spouse of the deceased and to his or her ascendants or descendants, and such right shall only belong to more distant relations on their being able to prove a material prejudice to them resulting from the condemnation.
The demand shall be admissible at every stage of the revision procedure.
Damages allowed shall be at the charge of the State, which will have a right of action against the civil party, the denunciator or the false witness by whose offence the condemnation has been pronounced.
The costs of revision shall be advanced by the person who has entered the demand until the order pronouncing the admissibility of the same has been made ; and for the costs incurred subsequently to such order advances shall be made by the Treasury.
If the order or definitive judgment of revision pronounces a condemnation, the reimbursement of the costs shall be at the charge of the condemned.
The person who enters a demand in revision and does not succeed in getting the same granted, must pay all the costs incurred by the action he has taken.
The order or judgment in revision pronouncing directly or by implication the innocence of a condemned person shall be posted in the town where the condemnation has been pronounced, in the district in which the Revision Court has jurisdiction, in the commune (parish) in which the offence was alleged to have been committed, in the district of the domicile of the person or persons at whose instance the revision has taken place, and in the district of the last domicile of the victim of the judicial error, if he should be deceased. It will be inserted officially in the Journal Officiel
, and its publication in five newspapers, to be chosen by the person at whose instance the revision has taken place, will be ordered if the latter demands it. Art. 447. (Transitory.)
TRANSLATED BY F. M. H.
SHOULD LAND TRANSFER REGISTRIES BE WORKED
BY SOLICITORS, OR BY GOVERNMENT?
system of conveyancing of general application! Whether the result of the experience of the Land Transfer Act, 1897, will in the interval prove satisfactory or otherwise remains to be seen, but the writer hopes to show that compulsory registration of title would be far more likely to prove beneficial to the public if in the hands of those who now conduct the conveyancing business of this country, than under any governmental system however carefully devised
Any fair-minded critic of the present mode in which transfer of land is conducted will, it is believed, have to admit that, consequent on the reforms carried out under the Conveyancing and Settled Land Acts, landowners have not much to complain of. Whether they buy, or whether they sell, the affair can be easily and expeditiously carried out. The present system has only one serious blemish-it is expensive. If your purchase money is £1,000 you are liable to pay your solicitor 30 shillings per cent. for investigation of title.
Why is the transfer of land expensive ? A moment's reflection will show that the reason it is costly is because on every change of ownership there must be a fresh investigation of title. What the solicitor is paid for is not the purchase deed, which could scarcely be made shorter than it is, not for any other labour connected with the transaction, but the reason of the heavy cost is due to the skilled work of investigating title.
Therefore it is obvious that if you can investigate the title of a given piece of land once for all down to the ownership prior to registration, and if you prevent future complications by allowing only simple transfers, then the whole cause of the great expense of the present system disappears.
Of course if every professional man were equally careful and competent, a simple plan would be to enact that a certificate by a barrister, or solicitor, that he had investigated and approved the title should be made binding on succeeding owners; but we know that such a step would be absolutely impracticable, and that it is
1 Under Order of Council of July 18, 1898, the whole of the County of London will, on July 1, 1900, be subject to the Land Transfer Act, 1897.